To reside or not to reside, that is the question

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I struggle to think of any aspect of real estate ownership that stirs up stronger feelings than the Homeowner’s Associations (“HOAs”) and Covenants, Conditions, and Restrictions (“CCRs”). For many buyers, HOA governance signals stability. Communities governed by restrictive covenants often promise consistent architectural standards, minimum maintenance standards, access to common areas, and protection of long-term property values. From a real estate professional’s perspective, that predictability can be a strong selling point. Buyers frequently ask whether a neighborhood has an HOA, and in many markets, that answer affects both demand and price.

However, HOAs are not universally viewed as beneficial. Besides the financial impact of paying HOA dues, restrictions on property use can feel limiting, especially when buyers discover that “residential purposes” or architectural controls mean more than they expected. Disputes over enforcement can create tension within communities and occasionally result in litigation. For agents and brokers, misunderstandings about HOA authority can lead to unhappy clients long after closing.

When I was in private practice, I made sure to make my buyer clients aware of any restrictions that had been placed on the property they were buying. While most buyers understood the purpose of HOAs and that there would be general limitations on how they used their property, occasionally I would have a buyer reach out to make sure a particular use wasn’t prohibited before they went under contract. For example, one buyer was a dog breeder, so the client needed to make sure multiple dogs would be allowed. We reviewed several sets of restrictions for various properties before we finally found a neighborhood that would allow more than 2-3 dogs at one time. 

On the non-transactional side of my practice, I handled several cases representing homeowners in disputes with their HOAs.  In SC, the deck is usually stacked in favor of the HOA in disputes, so an overzealous HOA board member or homeowner can use the covenants to make life miserable for their neighbors. In each of the cases I handled, the main issue came down to personal disputes between various personalities spilling over into the “covenant enforcement” arena.  One of my HOA cases essentially came down to one neighbor having a problem with blue-collar workers being able to afford a home in his upscale neighborhood. He filed repeated complaints against my client that were highly embellished while ignoring similar code issues on other nearby properties.  Eventually, we were able to demonstrate to the HOA board that the complaints were more about harassing my client than enforcement of the covenants, and the board agreed to not pursue their enforcement action. 

A recent South Carolina Court of Appeals decision, Hoffman v. Saad Holdings, LLC1[1], provides another example of tension between neighbors spilling into a covenant enforcement action. The parties to the litigation are property owners within a residential subdivision on Lake Hartwell in upstate South Carolina. The CCRs for the subdivision contained a use restriction that “No lot shall be used for other than residential purposes.”  A subsequent amendment placed building setback lines for each lot as well. 

Saad Holdings, LLC (“Saad”) purchased lots in the subdivision, but the shape of these particular lots made building a residence in compliance nearly impossible.  However, Saad obtained permits to construct two docks on the lake and then ran electric and water lines across the lots to the docks. Saad also used the lots to access the docks by foot. 

A group of homeowners (“Homeowners”) alleged that Saad was putting its properties to “recreational” use, which violated the CCRs restriction to use of the property for “residential purposes.” The homeowners sought an injunction against Saad using these lots to access the docks. In response, Saad argued that the lots were used for access to the docks, not recreation.  Saad further argued that the Homeowners interpretation of the CCRs would harm Saad more than it would actually benefit the Homeowners. 

Homeowners argued that picnics, camping, or even birdwatching on Saad’s lots were all prohibited by the CCRs.  Homeowners further argued that Saad’s lots could not be put to any use at all except accessing the lots to maintain them.  While the court didn’t opine on this argument, it seems awfully convenient that Homeowners were in favor of Saad maintaining the lots at the neighborhood standard, for their own benefit, but opposed any use that would benefit Saad. 

The Court begins its analysis by noting that CCRs are contractual in nature, but that South Carolina law favors the unrestricted use of property. The Court states that when there are two equally capable interpretations for a restriction, the one that is least restrictive should be adopted. 

In discussing the distinction between “residential” and “recreational” use, the Court notes that previous South Carolina cases have centered on the distinction between residential and commercial or business uses. 

Expanding its search beyond South Carolina, the Court found a set of similar facts in the North Carolina case Villazon v. Osborne[2].  In Villazon, the property owner used her lake front lot to store kayaks and hold the occasional cook out.  The Villazon court found that nothing in the subject CCRs required habitation in order to qualify as “residential use.” Since the Villazon interpretation of residential use was equally applicable and less restrictive than the interpretation proposed by Homeowners, the Court affirmed the trial court’s decision denying the injunction sought by Homeowners.

In my personal life, I have only purchased houses in neighborhoods with CCRs and HOAs, so I do not intend to scare anyone away from buying property in an HOA neighborhood. However, the Hoffman case highlights the importance of knowing what activities may be allowed or prohibited before buying a piece of property.  Had the Court ruled in favor of Homeowners, Saad’s property values would have decreased significantly and perhaps become worthless.  After my experience dealing with HOAs as an attorney, I do appreciate a case where common sense prevails.     

[1]Hoffman v. Saad Holdings, LLC, Op. No. 2026-UP-___ (S.C. Ct. App. Feb. 18, 2026) (unpublished)

[2]Villazon v. Osborne, 922 S.E.2d 498 (N.C. Ct. App. 2025)

Data Centers Raise Legal Questions for Rural South Carolina

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Across rural South Carolina, data center proposals are generating increasing controversy as residents challenge whether counties are complying with zoning statutes, comprehensive plans, and public‑notice requirements.

In Colleton County, Council amended its zoning ordinance to add data centers as a permitted use and to create a special exception within residential districts – changes that paved the way for a proposed $6 billion facility near the environmentally protected ACE Basin. In January, neighboring landowners, represented by the Southern Environmental Law Center, filed suit alleging that the county enacted these amendments without adequate notice or transparency, that the changes conflict with the county’s comprehensive plan, and that allowing an industrial special exception within a rural district is inconsistent with existing zoning classifications.

Similar disputes continue to surface statewide. In Marion County, Council recently approved a $2.4 billion data center project and a fee‑in‑lieu‑of‑tax agreement. The project appeared on the agenda only under the code name “Project Liberty” and was covered by a nondisclosure agreement, leaving the public without meaningful information until the final reading. Aiken and Berkeley Counties have faced comparable challenges.

Opponents of data centers emphasize their extraordinary electrical demand, which has already strained power grids across the country. Some estimates now place data‑center consumption at roughly seven percent of U.S. electricity use, with projections continuing to rise. In the Colleton debate, residents expressed concern that utilities lack sufficient capacity to serve the proposed facility and that ratepayers – particularly Santee Cooper customers – may ultimately bear the cost of necessary upgrades.

Water usage presents a parallel problem. Data centers generate substantial heat and rely heavily on water‑based cooling. The volume required can impose real stress on local water systems, particularly in rural areas. While newer closed‑loop cooling technologies reduce consumption, they require additional energy and higher capital investment.

Other community impacts have also drawn scrutiny. Backup diesel generators – which data centers depend on for uninterrupted service – emit gases and particulates that may pose health risks. Residents in rural counties also cite noise, light pollution, and the visual intrusion of large industrial campuses as threats to the historic and environmental character of their communities.

Yet despite these concerns, the economic incentives remain significant. Proponents of the Marion County project note that the facility could generate nearly $28 million annually for a county operating on a $25 million budget. Construction phases typically span several years, providing a substantial economic boost. And although data centers require relatively few employees once operational, they nevertheless contribute positively to local employment and tax revenue. Moreover, the facilities are essential to the growth of artificial intelligence and advanced computing – technologies many policymakers liken to a modern “space race.”

The General Assembly has taken notice. Several bills addressing data‑center siting, utility impacts, and environmental standards have been introduced this session. Developments in the Colleton County litigation, along with potential legislative action, will likely shape future permitting and zoning practices statewide.

For South Carolina lawyers, these projects are becoming increasingly complicated to navigate to completion. Title insurers are increasingly view data centers as high‑risk properties due to their scale, public visibility, and susceptibility to challenge. Attorneys may be asked to perform extended title examinations, provide more detailed zoning analyses, and secure specialized endorsements requiring careful underwriting. As counties pursue these high‑value developments and as communities continue to push back, lawyers will as always be on the front lines.

Georgia Real Estate Investor Fined for Violating OFAC Sanctions

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Imagine that you have a real estate investor client who purchased a big house in a gated community at a foreclosure sale. The client then took out a mortgage on the house, paid to make significant repairs and renovations, and ultimately signed a contract to sell it on to a third party. Then, all of a sudden, the Federal government sends your client a cease and desist order, a subpoena, and eventually fines him $4,677,552.00 for violating OFAC (Office of Foreign Asset Control, an agency of U.S. Treasury) sanctions against a family member of a Russian oligarch. Does that sound fun to anybody? Unfortunately, that is more or less what happened to one real estate investor in Atlanta who unknowingly bought a house which was, in fact, owned by a person who was on the OFAC sanctions list.  

This particular person whose name appeared on OFAC’s sanctions list is now known as Karina Rotenberg. She is a family member of a Russian oligarch who was identified for US financial sanctions after Russia invaded Ukraine. For a time in the early 2000’s, she lived and worked and owned homes in Atlanta. At the time, her name was Karina Fox. Guess which last name her Atlanta home is owned under? That’s right – it’s Fox.

Well, it just so happened that, after it added her to the sanctions list, OFAC figured out that Ms. Fox/Rotenberg owned property in Atlanta. This means that her property could not be sold, mortgaged, or otherwise transferred, since doing so would be a violation of the sanctions. OFAC sent a notice to the Fulton County Clerk of Court specifically mentioning the property’s address, and listing several names by which Ms. Fox/Rotenberg was known (including both “Fox” and “Rotenberg”), and asked the Clerk to file the notice in the county records to let the public know that the OFAC sanctions existed. And the Clerk of Court did file that notice. Unfortunately, for reasons which are not clear, the Clerk appears to have only indexed the notice under the name Rotenberg. So, a title searcher who did not know that Karina Fox and Karina Rotenberg are the same person would not necessarily know that this home was owned by a person on the OFAC sanctions list.

Now, here comes our local real estate investor, by all accounts an entrepreneurial fellow who had immigrated from India and worked to further his education and succeed in this county. He operated his real estate deals through an LLC: King Holdings LLC. Most of his past deals had been smaller single-family homes that he had bought in distress, improved, and flipped for a profit. This home would be bigger than most of his past projects. But it was being sold at foreclosure and seemed like a bargain. King Holdings buys the home at foreclosure sale in January 2023.

Around April of 2023, OFAC learns about the foreclosure, and tracks our investor down. He says that an OFAC investigator called him on his cell phone and told him that he should not be doing anything with the home, due to the sanctions. In our investor’s version of the story, the caller seemed sketchy, and he says he wondered at the time if it was a scammer trying to scare him into giving up some personal information.  

Our investor goes ahead and mortgages the property to have funds to begin renovations. The law firm which closed the mortgage says it searched title to the home and did not find the OFAC notice (which, again was indexed in a different name, Rotenberg).

By December, 2023 our investor has learned that this home has significantly more repair/maintenance problems than he’d bargained for. He is beginning to think it was not such a great deal. He signs a contract with a third party to sell the home. After initially listing the property for $2.5M, he finally signs a contract to sell it for $1.4M.

In February 2024, OFAC issues a cease-and-desist order and administrative subpoena to our investor, restating the sanctions and requiring that he immediately stop doing anything with the home. The subpoena also demands information on all dealings involving the property since January 2023. It seems that our investor certified the accuracy of a response that disclosed the renovation work but did not say anything about the property’s listing and pending sale.

In March 2024, our investor closed the $1.4 million sale of the property to the third party buyer.

OFAC took the position that pretty much everything our investor did violated OFAC’s regulations/sanctions. (I also get the sense that they were pretty mad about him not disclosing the sale, and then going ahead with the sale to the third party, after OFAC had issued their cease-and-desist order.) So, as punishment, OFAC imposed the $4,677,552.00 fine on him personally.

It is really disappointing that the Clerk of Court did not index the OFAC notice under all the names that OFAC had listed. Another possible way this could have been avoided is if our investor had checked the OFAC sanctions list before proceeding. This is a great tool that all our CTIC agents should be using too – it could even help you save a client from ending up like our Atlanta investor!

Appeals Court Upholds Ruling Nullifying Transfer of Common Elements

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The SC Court of Appeals released a new decision this week confirming that a Developer of a Horizontal Property Regime (HPR) may not remove common elements from the regime once the right to the common elements has vested in the individual unit owner. 

The facts are somewhat complicated, but I will try and simplify it as best as I can. The Developer of the fully constructed Mariner’s Cay Marina in Charleston committed the property to a HPR in 2006.  

The Marina consisted of individual boat slips, a fuel dock with a wastewater pumping station, and a two-story Ship Store. The 88 individual boat slips were converted to separate units or apartments with a designated ownership percentage of the common elements. The first and second floors of the Ship Store were designated Commercial Units 1-A and 1-B respectively. The fuel pump and the attendant wastewater pumping station were designated as Commercial Unit 2. The Master Deed stated that the Commercial Units were “common elements or limited common elements [of the Regime].”    

However, the Master Deed also provided that the Developer retained a right to “unilaterally amend the declaration for any purpose” for the earlier of 18 months or the point where it sold 90% of the unit, but not in such a way as to “adversely affect the title to any Unit unless the Owner shall consent in writing.”

In 2007, during its “unilateral” rights period, Developer amended the Master Deed by removing the language that designated the the Commercial Units as common elements or limited common elements.  At the time of the Amendment, at least 39 individual units (slips) had been sold. 

Shortly after recording the amendment to the Master Deed, Developer sold the Commercial Units to a third party, who in turn sold the property to another entity. This down the line entity borrowed money for construction at the Store, which it secured by a mortgage on the Commercial Units.  

It would not make for a good story unless the mortgage went into default. Lender filed a foreclosure action naming the HPR as a defendant by virtue of its liens for assessments. The Court indicates that the HPR participated in the proceedings without contesting the foreclosure or the right of the Developer to have transferred these units in the first place. In February 2015 the property was sold at public auction. It eventually was sold again to the two LLCs that are the defendants in the ensuing litigation.

It appears that between 2006 and 2015, the slip owners had enjoyed free use of the waste-water pumping station on the fuel docks and of the restrooms in the Ship Store. However, the new Commercial Unit owners changed quite a few things after taking possession of the units. The Commercial Unit owners took action to bar the slip owners from the use of the pumping stations, forced the dock master to vacate the Ship Store where his office had been located, and denied access to the restrooms.  

In response, several individual unit owners filed suit alleging that the Commercial Units were common elements of the HPR and that Developer did not have authority to change that status when it recorded the amendment to the Master Deed. In defense, the Commercial Unit owners argued that the Master Deed gave the Developer unilateral authority to amend the Master Deed and that the HPR waived the right (of all unit owners) to contest the Developer’s action when it acquiesced to the foreclosure proceedings. 

The Court of Appeal focused its holding on its prior ruling in  Vista Del Mar Condo. Ass’n v. Vista Del Mar Condos., LLC, 441 S.C. 223 (Ct App. 2023). In Vista Del Mar, a Developer originally committed a tract of land to a HPR pursuant to a multi-phase development plan. After construction of the initial phase, the Vista Developer changed its plan of development and determined that a portion of the undeveloped property committed to the HPR was no longer necessary to its intentions. The Master Deed had language giving the Vista Developer a unilateral authority to add or remove property from the regime on behalf of itself and as the agent for the individual unit owners.

Unit owners sued the Vista Developer arguing that common elements could not be conveyed. In issuing its opinion, the Court concluded that the Vista Developer had authority to convey the property because the unit owner’s rights in the particular property as common elements had not yet vested in the unimproved portion of the property, because the property was not scheduled to be a common element for recreation and the contemplated construction on the unimproved portion had not been commenced or completed. 

In the current opinion, the Court found that the rights of the slip owners in the common elements at Mariner’s Cay had fully vested. Once the vesting occurred, Developer’s authority to remove common elements ended regardless of the provisions of the Master Deed. The Court ruled that the Master was correct in finding the Commercial Unit owners “wrongfully held title.”

The Court was not impressed with the argument that the HPR’s participation had waived the rights of individual unit owners to contest the transfer of the common elements. The Court ruled that the individual units were not parties to the foreclosure action. Not being parties, they could not be estopped by any failure of the HPR to assert defenses in the foreclosure hearing.  Attorneys that litigate all kinds of cases against HPRs should take heed that the HPR Association does not necessarily have authority to bind individual unit owners.

While this new ruling is confirmation of prior standard concerning the vested rights of unit owners in common elements, practitioners may find that the devil is in the details concerning the point at which such rights vest. The Court was not exceptionally clear in laying out specific for determining whether a right to a common element vests, but it seems that it was important to the Court that the common elements were fully constructed, in active use by the slip owners. Perhaps too that fuel docks and pumping stations and restrooms have more obvious correlation to the expectation of slip owners in a Marina than unimproved property slated for future development might have had to unit owners in Vista Del Mar. Yet another distinction between the two case may have been what seems like much more explicit language in the Vista Del Mar Master Deed concerning the authority of the Developer in adding and subtracting property for use in future phases.

Attorney Opinion Letters – Worth the Risk?

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Have you ever been asked to provide a title opinion in connection with a real estate transaction? What does that mean? To me, it means that the client asks you to give your legal opinion as to the legal and factual validity of title ownership for a particular piece of land, and to note any matters of record that impact the title. That raises the question: Do you want to be personally responsible for that opinion?  More importantly, do you want to be personally responsible to the client or a third party if that opinion is incorrect?

What if the records are incomplete or inaccurate? Will you search title yourself or are you going to rely on a title abstractor? Will the abstractor have sufficient E&O coverage to protect you if they make a mistake?  Are you comfortable taking the risk that the abstractor did not miss anything in title? Lastly, why would you want to bear that risk when there is a national industry offering title insurance to protect parties from the same types of title risks that would be covered by a title opinion?

I think buyers and lenders look at these opinions as a guaranty that the opinion is correct. As a lawyer, you would never guarantee the outcome of litigation or settlement negotiations because there are too many factors that are outside of your control. In a perfect world, real estate or public records would contain no errors and no mis-indexing and there would be no forgery, fraud or people attempting to take advantage of the system. But we, our systems and our abstractors are not infallible. However, when lenders and buyers close a real estate transaction, they want certainty. 

In recent years there has been a push, especially with refinances and home equity mortgages, for lenders to accept an attorney opinion letter (commonly referred to as an “AOL”) in lieu of a title insurance policy.  At first, this may seem like an additional stream of revenue for your office, but you must weigh the benefits against the potential harm. 

A legal opinion is an analysis by an attorney subject to a promise of care, not an insurance contract.  If the legal opinion is wrong, the remedy is a claim of legal malpractice or negligence on the part of the attorney. 

In comparison, a title insurance policy is a contract of indemnity in which the title insurance company has certain obligations to its insureds pursuant to the terms of the policy. Coverage depends upon satisfaction of the commitment requirements and is subject to the specific exceptions as well as the conditions and exclusions of the policy jacket.   

While the perception may be that AOLs are faster and less expensive and appropriate where risk is considered low (refinances and HELOCs), The American Land Title Association (ALTA) and other industry leaders caution that an AOL does not provide the same level of protection as title insurance products. 

For attorneys, loss resulting from an inaccurate AOL could negatively impact a practice’s bottom line.  An attorney making a payout under an E&O policy may soon have an increased deductible or lose the policy altogether. A firm may see its reputation suffer in the community to a greater degree from a personal allegation of malpractice than from a claim against a title policy. 

There are companies that offer a variety of services which include AOL programs.  One such provider is Voxtur Analytics Corp.  Earlier this year Voxtur (and its 20+ affiliated entities) filed bankruptcy in Canada and has petitioned the U.S. Bankruptcy Court for the District of Delaware to be recognized and restructured under a Chapter 15 petition. According to online information, Voxtur has been suffering large losses for the last several years: $54.3 million in 2023, $73.6 million in 2024.  Reportedly, as of March 2025, its liabilities exceeded its assets by $33.2 million. 

Many lenders have relied on Voxtur’s AOL program and others like it in lieu of title insurance. The bankruptcy should cause these lenders and their servicers to question not only the reliability of such programs but also the longevity of the remedies available under such a program. As a result of the bankruptcy, parties that utilized Voxtur’s services must be questioning whether Voxtur will be able to satisfy any claims related to its AOL program. Voxtur should be a reminder to the industry that vendor insolvency is a real risk in the AOL model of risk allocation. 

So back to my original question: are AOLs worth the risk? Is it worth the risk to an attorney’s personal, professional liability or reputation to provide an opinion of title for a fee that may not match the potential risk? Is it worth the risk to fast-track a transaction or cut costs when the result may be to weaken the lending industry’s access to reliable protections in the event of title claims, especially for those matters which may be covered under certain title policies of insurance but would not be covered under an AOL?   

…Just a little food for thought as we digest all those holiday feasts. Cheers!

SC Supreme Court Decides Gulfstream Case

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Commercial real estate lawyers know that disputes over parking lot use are common. The long-running legal battle between the owners of Gulfstream Café and Marlin Quay Marina, recently addressed by the Supreme Court, nearly escalated into a literal parking lot showdown given its contentious history.

In 2022, this blog discussed the continuing legal saga in two installments that some of you may wish to check out. A fight over attorney’s fees! Criminal contempt for the malicious parking of a golf cart! The drama!        

To catch readers up to speed: In 1982, Georgetown County approved the Marlin Quay Planned Development, which contained two distinct businesses: the Gulfstream Café and its 17 parking spots; and the Marlin Quay Marina, which consisted of 60 boat slips, a marina store, a restaurant, and 62 parking spaces. 

The businesses operated in seeming harmony for many years. In 1986, the Marina owner even granted Gulfstream a right of ingress/egress over and the non-exclusive use of Marina’s parking lot and parking spaces, which seemed very neighborly indeed.  This easement implied in part: “[i]t is anticipated by the parties that while they will each have joint and non-exclusive use of the area covered by this easement that the Grantor will primarily utilize the premises during the daytime and [Gulfstream] will primarily use these premises in the evening.”

Things went downhill in 2016 when the Marina was sold to a new owner with a different vision for its property. The new owner wished to demolish the existing buildings at the Marina and build a new restaurant and store in its place. Making matters worse for Gulfstream, the new owner also intended on operating the new restaurant in the evenings, created direct competition for customers and for parking spaces at night.

The County Council approved Marina’s request to modify the Planned Development according to this initial set of plans over the objection of Gulfstream. However, the Marina withdrew its petition after it became known that the Marina’s architect, a Georgetown County Council member, failed to recuse himself from the deliberations and vote[1]. 

After the County approved the re-submitted plans, Gulfstream filed suit against the Marina alleging that the proposed expansion of the restaurant violated the terms of its existing easement.  After a full trial, the Circuit Court ruled that the Marina must revise its plan so that it did not exceed the footprint of the existing building with respect to the parking lot if it chose to move forward.

The Marina revised its plans to comply with the Court’s order. It chose to build a bigger vertical space with a larger outside seating area waterside. Gulfstream again objected and maintained that the increased square footage would make the difficult parking situation worse. The County eventually approved the revised plans over Gulfstream’s objection finding that the new construction would be in better condition, bring the Marina into compliance with current building codes, and be a net benefit to tourism and the community over the existing structure. 

Not backing down, Gulfstream then filed suit against the County alleging that it had violated its own parking requirements under the zoning ordinance by approving the new plans. Gulfstream asserted that the County’s approval violated its right to substantive and procedural due process and amounted to a taking of its rights under the easement, all of which substantially diminished the value of its property.   

The case ultimately reached the South Carolina Supreme Court, which found in favor of the County.  The Court agreed that Gulfstream’s easement created a property right, but found that Gulfstream did not have an exclusive right to the use of the Marina’s parking spaces in the evening.  Further, Gulfstream had exactly as many parking spaces available to its customers after the approval of the new plans as it did before. The Court was unconvinced by Gulfstream’s arguments that the approval of the additional square footage of seating had overburdened its easement rights and determined that the County had not deprived Gulfstream of any property interest.

The Court found that the General Assembly had given Counties the option to approve “planned developments” so that they could be flexible in adopting innovative planning solutions for benefit of their local communities.[2] The County complied with all hearing requirements for approving the amendment to the planned development and Gulfstream had a full opportunity to present its opposition to the plan.   Therefore, the County had not violated any substantive or procedural due process right. 

The Court also ruled against Gulfstream on its claim that the County had engaged in a “taking”.  The County had not engaged in a “per se” taking because Gulfstream had not been deprived of all economically or productive use of its easement. Gulfstream still retained the same non-exclusive right it had always enjoyed concerning the  parking spaces in the Court’s view.

Further, the County had not engaged in a regulatory taking under the Penn Central test.[3] The County approved the plans in its estimate of the best interest of the community. The County had not appropriated the parking to its own use. County approval of the plans did not prevent Gulfstream from continuing to do business as before. The Court further rejected Gulfstream’s offered expert testimony that valued the property based on the assumption that Gulfstream did not have any use of the easement parking[4]. Finally, the Court reasoned that because Gulfstream did not have an exclusive right in the use of the parking spaces that the County’s ruling could not have upset any investment backed expectation in the use of the parking spots at night.   

Finally, the Court majority declined to hold that the councilman’s participation in the initial approval of the plans invalidated the subsequent approvals that took place after he recused himself. The majority found the subsequent approvals of the completely revised project by the Council, acting this time with the councilman’s recusal, were sufficient to overcome any impropriety in the first vote. 

The two dissenting Justices, though concurring in ultimate result, were much more skeptical of the councilman’s conduct and made it plain that the Justices believed County made unique concessions in its review of the Marina project.[5] The Court questioned whether the Council had properly re-examined the basis for approving the concessions after the recusal.   

In any event, the legal duel between the restaurants seems to be over for now. The next time you are in Garden City, you may just want to take a fact-finding mission to sample the cuisine. Just be sure to arrive early as you know that the parking may be an issue.

[1] The Court’s opinion tells us that Gulfstream separately filed an ethics complaint that resulted in an official sanction and fine being levied against the council member.

[2] See S.C. Code 6-29-740. 

[3] Penn Central Transport Corp. v City of New York, 438 U.S. 104 (1974).  Some attorneys may vaguely recall from the boring semester of Constitutional Law that under the Penn Central test, a court, in considering whether a state action amounts to a regulatory taking,  must consider 1) the character of the state’s action; 2) the economic impact of the regulation on the claimant; and 3) the extent the regulation interferes with an investment backed expectation. Partial credit to you though if the name seemed familiar! 

[4] The entire Court seemed to find the expert’s testimony as lacking in credibility. The Court characterizes his testimony as indicating that the new Marina restaurant had rendered the Gulfstream property as almost entirely without value.  The expert seems to have bitten off more than he could chew there. 

[5] The dissent seemed especially concerned that the councilman had asked for $72,000 from the Marina as additional compensation for his role in shepherding the matter through County Council.

PASSING IT DOWN:  RECIPES, TRADITIONS AND REAL ESTATE

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Like many of you, Fall is my favorite season of the year. The oppressive heat and humidity is finally starting to temper itself, the kids are back in school, football is being played once again, leaves are changing, and the holiday season is fast approaching. This week, we celebrate Thanksgiving, which just so happens to be my favorite holiday of the year. The Thanksgiving holiday naturally lends itself to so many time-honored traditions. It is a time family and friends gather to reflect on the important things in their lives and to overindulge in so many wonderful dishes.

The passing down of recipes through generations drew my mind to how real property is also passed from one generation to another. Ideally, property owners would properly plan for an orderly transfer of property through sound estate planning. Most wills express the testator’s intentions as to real property and grant the personal representative the power to effectuate the transfer. Other times, the will grants the personal representative the power to sell the property, creating a fiduciary duty to properly disburse the proceeds from that sale.

Under South Carolina Probate Code §62-3-711(c) a personal representative who has the power to sell pursuant to the decedent’s will may execute a deed in favor of a purchaser for value. This power is subject to §62-3-713, which prohibits transfers to the personal representative or certain related individuals or entities unless the will or a contract or court order authorizes the transaction. Pursuant to §62-3-910(B), a purchaser for value from a personal representative takes title free of heirs or other interested parties.

In the context of title insurance and in circumstances where either a will does not specifically grant a personal representative the power to sell real property or when a probate estate is opened in the absence of a will of a property owner, an Order from the Probate Court authorizing the personal representative to sell the subject property would be required to insure without taking exception to the possible interest of heirs or other interested parties.

Often times though, a property owner dies without leaving a will. Absent a proper directive from the decedent, one would turn to the laws of intestate succession, which can be found in the S.C. Probate Code at §62-1-101, et seq.  The law of intestate succession dictates how a person’s property is distributed by making the assumption that the decedent would want the property to go to the decedent’s closest relatives. 

Testate and intestate succession laws can sometimes get confusing.  However, whenever there is a doubt about the proper way to insure a transaction there is always a common correct answer: contact your title insurance underwriter.

This blog post began by reflecting on the changing of the seasons and the approach of the Thanksgiving Holiday. Appropriately, this is the perfect time to remember the many blessings in our lives. Perhaps more than any other time in the calendar year, Thanksgiving provides the opportunity to honor old traditions, create new ones and remember those that have passed on before us. May each of you enjoy time with family and friends and have an opportunity to reflect on those blessings and why they are so meaningful.

In the spirit of succession, having been born and raised in coastal South Carolina, I would like to share one of my favorite Thanksgiving recipes that has been passed down through my mother’s side of the family.  Happy Thanksgiving, everyone!

Oyster Cornbread Dressing

INGREDIENTS

  • 2 lb. unsweetened cornbread, cut into 1/2-inch cubes (about 12 cups)
  • 3/4 cup melted unsalted butter (1 1/2 sticks)
  • 5 tbsp. unsalted butter
  • 2 cups chopped onions (about 2 medium onions)
  • 1 1/2 cups chopped celery (about 3 ribs)
  • 2 cloves garlic, finely minced
  • 6 oz. country ham (the saltier the better), finely diced
  • 2 tbsp. chopped fresh sage leaves
  • 2 tsp. fresh thyme
  • 1 1/2 tsp. sea salt
  • 1 tsp. ground black pepper
  • 1/2 tsp. ground nutmeg
  • About 18 to 20 freshly shucked oysters, roughly chopped with liquor reserved
  • 1 cup chicken broth
  • 3/4 cup milk
  • 3 large eggs, lightly beaten
  • A few more tsp. unsalted butter

PREPARATION

  1. Heat oven to 400°F.
  2. Toss cornbread cubes with melted butter and lay out flat on a baking sheet, crumbs and all. Bake in the oven, stirring occasionally, for 30 minutes or until a nice toasty color forms on the cornbread.
  3. Meanwhile, melt the 5 tablespoons of butter in a large skillet over low to moderate heat. Stirring occasionally, sauté the onions, celery, and garlic until the onions are translucent, about 6 minutes.
  4. Transfer the cooked vegetables to a large bowl and add the toasted cornbread, tossing gently to mix. Add the ham, herbs and spices, and oysters with reserved oyster liquor, and mix with a rubber spatula.
  5. Warm the chicken broth and the milk together in a small pot just until simmering. Drizzle over dressing mixture and fold in. Fold in eggs.
  6. Lightly butter a 9-by-13-inch baking dish. Transfer the dressing into the baking dish and dot with a few teaspoons of butter. (The bread crumbs should be loosely stacked, not packed down tight.)
  7. Turn the oven down to 350ºF. Bake in the oven until the edges and the top are browned, about 30 to 40 minutes, keeping the pan covered with foil for the first half of the baking time. Serve hot out of the oven.

    Haunted Houses and Legal Horrors: The Ghostbusters Case That Shook Real Estate Law

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    As Halloween creeps in with its ghoulish charm, it’s the perfect time to revisit one of the eeriest and most entertaining legal decisions (and my personal favorite) in real estate history: Stambovsky v. Ackley, better known as the “Ghostbusters” case. This 1991 New York appellate decision, with it’s dad-humor level puns and references, didn’t just acknowledge the supernatural: it made it legally binding! And for those in real estate law and title insurance, it’s a chilling reminder that what lurks in the shadows might just haunt your contracts.

    The story begins in Nyack, New York, where Helen Ackley owned a charming Victorian home with a not-so-charming reputation. Over the years, Ackley had publicly described the house as haunted, recounting ghostly encounters in Reader’s Digest, local newspapers, and the house was even included in walking haunted house tours. Ackley claimed the spirits were friendly—playful poltergeists who left gifts and woke her grandchildren with ghostly shakes.

    Enter Jeffrey Stambovsky, a New York City resident who agreed to buy the home, but was unaware of its spectral fame. Upon hearing about its haunted reputation, he sought to rescind the contract, arguing that Ackley’s failure to disclose the home’s paranormal notoriety materially impacted its value.

    The New York Supreme Court, Appellate Division, sided with Stambovsky in a decision that has since become legendary. With perhaps one of the greatest single lines in an opinion, the court held that:  “As a matter of law, the house is haunted.”  Ackley was estopped from denying the haunting because she had repeatedly and publicly affirmed it. The court emphasized that while New York generally follows caveat emptor (“let the buyer beware”), this case warranted an exception. The haunting was not something a buyer could “reasonably discover” through standard due diligence or inspection.

    While this case is from New York and is a pretty extreme example, it does raise some important questions for transactions in other states as well, even if the facts may not be exactly on point:

    1. Disclosure Duties Can Be Contextual

    While most jurisdictions don’t require sellers to disclose ghostly activity, material facts that affect a property’s value or desirability, especially if they’re publicly known, may need to be disclosed. In this case, the haunting wasn’t just folklore; it was part of the home’s local identity.  For example, in SC, a seller does not have to disclose if someone has died in the property up front, but they do have to answer honestly if specifically asked the question.

    2. Equitable Estoppel Has Teeth

    Ackley’s own statements came back to haunt her. Because she had repeatedly affirmed the haunting, she couldn’t later deny it to avoid legal consequences. This principle can apply to other types of representations whether about property condition, zoning, or history. 

    3. Buyer Beware Isn’t Absolute

    Even in caveat emptor states, courts may intervene when fairness demands it. If a seller knows something that a buyer couldn’t reasonably discover, and that information materially affects the transaction, silence may not be golden, but grounds for rescission.

    From a title insurance perspective, the Ghostbusters case raises intriguing questions. Can we remove the “parties in possession” exception if the property is also occupied by ghosts?  While I’m fairly certain ghosts wouldn’t have legal rights of possession, how would one go about evicting them in the first place?  Title insurance typically covers defects in title, not defects in reputation. Paranormal activity doesn’t cloud title, but it can cloud marketability.

    Most policies include coverage for marketability of title in regards to title defects, which courts have interpreted to mean that a property must be free from legal or practical issues that would prevent a reasonable buyer from purchasing it. While ghosts don’t affect legal ownership, a well-publicized haunting might affect marketability, especially if it leads to litigation or public stigma. 

    For a more realistic example, think Breaking Bad instead of Ghostbusters.  Some county sheriff departments will record a notice of clandestine laboratory when a meth lab is discovered on the property.  While a history of use for cooking meth doesn’t affect title, it can definitely affect someone’s willingness to buy the property.  This particular issue arose in a potential claim at a previous employment stop.  The company wasn’t sure it was a covered claim because notice of a prior criminal activity didn’t affect the title to the property.  The insured’s argument was that it was recorded in the records and, even though the properly had been fully remediated, the notice had already caused one contract to fall through and was affecting the insured’s ability to market and sell it.  Unfortunately, I moved to my current position and don’t know how that claim turned out.

    While title insurance is mainly concerned with matters in the public records that affect title, sometimes the risk assessment does factor in other information.  Title agents/insurers should be aware of Public representations made by sellers; Local folklore or media coverage that could affect a property’s reputation; or Claims or disputes that might arise from non-physical defects.  Whether you’re a broker, attorney, or title insurer, the Ghostbusters case offers some hauntingly good advice:

    • Ask about unusual property history—especially if the home has been in the news for any reason, but especially if it has been included on recent ghost tours.
    • Advise sellers to disclose reputational issues that could affect buyer perception.
    • Review local laws on disclosure obligations, especially regarding stigmatized properties (e.g., those associated with death, crime, or paranormal activity).
    • Consider adding disclaimers in contracts for properties with unusual histories.

    Finally, this case reminds us that real estate law isn’t just about bricks and deeds; it’s also about stories, reputations, and sometimes, ghosts. As Halloween approaches, let this case be a playful but powerful reminder: in real estate, what you don’t disclose might come back to haunt you.

    Whether you’re selling a haunted mansion or a humble bungalow, remember: the law sees more than meets the eye, and sometimes, it sees ghosts.

    Graceland Fraudster Does the Jailhouse Rock

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    Riley Keough, inset, with Graceland

    Lisa Findley, a woman from the Ozarks with a known history of petty crime, was sentenced to 57 months in federal prison last month after pleading guilty to mail fraud. The charge stemmed from a bizarre scheme in which she attempted to secure a $3 million payoff using a fake loan backed by a fraudulent mortgage on Graceland, the former home of Elvis Presley.

    Using at least four different alter egos, Findley attempted to convince lawyers for the estate of the late Lisa Marie Pressley1 and of her daughter, actress Riley Keough2, that a non-existent company called Naussany Investments & Private Lending, LLC, had loaned Lisa Marie $3,800,000 secured by the iconic home.

    Findley supported the scheme by forging the signatures of Lisa Marie and a real Florida notary on fake loan documents. She even went so far as to threaten foreclosure. While attorneys for the Presley estate grew suspicious minds, Findley escalated her efforts by filing a creditor’s claim against the estate in California and separately recording a fraudulent Note and Deed of Trust in Tennessee land records. Despite making little progress, she pressed the matter by publishing a Notice of Foreclosure Sale in the Memphis Commercial Appeal.

    While the Pressley attorneys rushed to obtain an injunction to keep the Jungle Room in the family’s domain, reporters and law enforcement began to close in on what proved to be an easy web to unweave. Perhaps feeling caught in a trap, Findlay’s alter egos abruptly disclaimed any connection to the loan and directed attention to a third alter ego.  After some token resistance, this alter ego confessed in an email written in Spanish – don’t ask me why – to that he was really a Nigerian scam artist and that the authorities should seek him in that fine African nation. 

    This final effort to by Findlay was … not successful. Despite asking the judge to don’t be cruel, she will now spend a blue Christmas in a federal penitentiary for the next several winters.

    In all seriousness, this scheme highlights both the growing prevalence of “imposter” frauds and the lengths and doggedness which fraudsters will pursue them. While this imposter chose very poorly in her attempted fraud target, the methods used should be a warning to all real estate professionals of what kind of methods they might run across in a scam. You could see how a less ambitious scheme could have been a little more credible and come closer to success.  

    [1] Daughter of the King of Rock and Roll, and wife to the King of Pop, Michael Jackson! Plus, her mom was on Dallas! Pure royalty. 

    [2] Keough was great in the Amazon mini-series ‘Daisy Jones and the Six.’  Definitely worth the watch if you have not seen it.

    [3] Foreclosures can proceed non-judicially in Tennessee, which means creditors may in many circumstances sell property without court oversight.  

    No horsing around with HOA disputes

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    Real estate practitioners will not be surprised to hear that neighbors in a well-to-do development with a significant set of covenants and shared easements will sometimes disagree (and even litigate) about how those easements ought to apply to their properties. Our Court of Appeals recently had occasion to hear an appeal related to covenants and easements in an equestrian subdivision in Aiken County, in the case of Richard Viviano v. Fulton Jeffers and Braeloch I Association, Inc., Appellate Case No. 2024-000147, Ct. App., Opinion No. 6120, Filed August 20, 2025.

    The underlying dispute in the case concerned an established equestrian community near Aiken named Braeloch. Braeloch has extensive pedestrian and riding trails, and when the subdivision was originally planned, one trail extended all the way around the outer boundaries of the subdivision. The recorded covenants included easements encumbering all the lots around the subdivision’s exterior boundary to account for this trail. The trail easement was also shown on the recorded subdivision plat. Later (in 2002) an additional lot was added (Lot 51) and eventually became the center of a dispute involving Lot 51’s owner, the homeowners association, and the owners of two adjacent existing lots. The neighboring lot owners and Lot 51’s owner disagreed about how the riding trail should be adjusted or relocated in light of Lot 51’s addition. Mr. Viviano was one of those neighboring lot owners. The Court of Appeals opinion implies that personalities clashed, and that the neighboring lot owners questioned the motivation and personal friendships of the HOA officers in making decisions about Lot 51 and the trail. Unfortunately, the parties could not agree at this point, and litigation was filed.      

    The main issue presented to the Court of Appeals here, which may be less interesting to real estate practitioners, concerned whether a settlement agreement that the parties signed at the conclusion of mediation would be enforceable. (Spoiler alert: The Court of Appeals said, Yes, it is enforceable.) At the trial court level, the parties had mediated the case and reached a written agreement. The agreement was broad and addressed all the issues in dispute between the parties: relocation of the riding path easement, who would pay to make improvements to the path, compensation to the impacted lot owners, that the parties would sign a mutual non-disparagement agreement, etc. It required formal approval by the full HOA of a few items that the HOA representatives agreed to in mediation; the HOA formally voted and approved those after the fact.

    As a worthwhile aside, the mediator (retired Judge Thomas Cooper, Jr.) made a lovely allusion to Aristotle (or the movie “Legally Blonde,” depending on your point of view) when he noted in his mediation report that the attorneys and parties had wisely “recogni[zed] . . . that emotion has to give way to reason to resolve difficult disputes.” We can all benefit from remembering that “law is reason, free from passion.”  

    Later, several months after mediation, Mr. Viviano seemed to have regretted the agreement and changed his mind. A couple of the details that he asked the court to consider in support of his motion might be of more interest to dirt lawyers.

    Viviano’s argument was basically that the 2002 petition to amend the covenants and easements to add Lot 51 was not valid because it did not have the support of the required number of lot owners. Viviano also argued that there was a “smoking gun” email from the owners’ association acknowledging that they did not have enough signatures on the petition to add Lot 51, and he claimed that this email had been deliberately concealed from him. (He argued that he would not have signed the settlement if he had known about it.) The Court of Appeals found this argument meritless. Without getting into the details of whether or not the Lot 51 admission had been completed correctly, the court pointed out that the Lot 51 admission documents were filed in the Aiken County public records, and therefore available to anyone to review. Viviano’s own complaint in the underlying suit had made an allegation of fact that Lot 51 had been admitted with two thirds vote of the HOA members. The court also noted that Viviano had access to the HOA email acknowledging insufficient signatures on the petition, as it had been produced in discovery more than 2 years prior to mediation, so it was not “concealed” from him. The Court of Appeals also cited established caselaw reinforcing the principle that, once the parties have reached a written settlement agreement, the courts are not inclined to entertain arguments by one party who regrets having agreed to the settlement.   

    For those real estate practitioners who represent HOAs, this case might be a good opportunity to remind your association clients about the importance of having counsel assist in the process of amending CCRs. Having an attorney guide an association through the complicated formalities of submitting petitions, calling meetings, sending notices, and being sure to obtain the required number of signatures/votes to amend could avoid costly litigation in the long run! For practitioners who review title and handle real estate closings (and prepare title commitments and policies!), this is also a good reminder to be on the lookout for recorded amendments to covenants, and to carefully review those to determine how they affect the title.