Could a South Carolina register record a deed with street or subdivision names that differ from an earlier plat?

Plain-English summary

In 2006, a legislator asked whether Kershaw County could record a deed whose street or subdivision name differed from a previously recorded plat. The Attorney General said the register of deeds performed a ministerial recording duty. It had to check statutory requirements for filing, but the statutes the AG reviewed did not require it to compare a deed's property description against earlier plats.

If the deed met the legal filing requirements, the register had to record it. The AG did not decide whether the mismatched names affected the deed's validity. That was a factual question beyond an AG opinion and, it said, best left to the courts. Recording and validity were separate issues in the opinion.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could a different street or subdivision name prevent recording by itself?

A: The AG found no recording statute requiring the register to compare those names with an earlier plat. It said the deed should be recorded if statutory filing requirements were met.

Q: Did recording prove that the deed was valid?

A: No. The AG separated the ministerial filing duty from the deed's validity and declined to decide the factual validity question.

Q: What filing requirements did the AG mention?

A: It cited proof of execution or an acknowledgment, county-auditor endorsement, and required derivation and mailing-address information for the deeds covered by the cited statutes.

Background and statutory framework

The opinion reviewed the register's duty under section 30-5-90 and other statutory prerequisites for recording. It also reviewed provisions allowing or requiring plats to be filed. None of the provisions it identified charged the register with deciding whether a deed's street or subdivision name corresponded to a prior plat.

Citations and references

• Section 30-5-90: the register's recording duty.
• Section 30-5-30: proof of execution or acknowledgment before recording.
• Section 30-5-80: county-auditor endorsement.
• Section 30-5-35: property-description and mailing-address requirements.
• Milford v. Aiken, 61 S.C. 110, 39 S.E. 233 (1901): recording as a statutory, ministerial function.

Official title

Asking “Can Kershaw County record a deed, which does not have the same street name or subdivision when the plat or plot was originally recorded?”

Requester

The Honorable Eldridge R. Emory, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-12-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06apr12-Emory.pdf

Original opinion text

HENRY MCMASTER
ATTORNEY GE'iERAL

April 12, 2006

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The Honorable Eldridge R. Emory
Member, House of Representatives
310-D Blatt Building
Columbia, South Carolina 29211

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Dear Representative Emory:

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We received your request for an opinion of this Office addressing a question raised by Charles R. Cauthen, a constituent of yours. Attached to your request you included a letter addressed to Attorney General McMaster from Mr. Cauthen. In this letter, Mr. Cauthen asks: "Can Kershaw County record a deed, which does not have the same street name or subdivision when the plat or plot was originally recorded?" Mr. Cauthen indicates he received advice from several attorneys, which informed him "it is not right to record a deed if the street name of the recorded sub-division and the name of the recorded sub-division don't match." Furthermore, after asking an attorney for advice on how he could keep a deed from being recorded from a plat, Mr. Cauthen states: "I was told by
[the attorney] that they could not do this, if the name of the subdivision and street names were changed, nothing would match the old working plat, which had not be recorded at the time." Mr. Cauthen indicates the plat has been recorded and the property has been deeded, "although the name of the street and the subdivision on that deed, does not exist." A county register of deeds, as a ministerial officer, has a duty to ensure an instrument submitted for recordation meets the statutory requirements. However, he or she does not have a duty to determine whether the instrument filed is valid. Mr. Cauthen' s question appears to concern whether the Kershaw County register of deeds has the authority record a deed. Thus, we surmise as long as the statutory requirements for recordation are satisfied, recording is proper. The validity of such a deed described in Mr. Cauthen's letter is of no consequence to the Kershaw County register of deeds and we find such a determination beyond the scope of an opinion of this Office. Law/Analysis

In an opinion of this Office dated January 20, 1982, we addressed the nature of a recording officer's duties. Relying on the our Supreme Court's determination that the process ofrecording an instrument is purely statutory, we stated "a recording officer, when performing his duties pursuant to the recording statutes, is a ministerial officer." Op. S.C. Atty. Gen., January 20, 1982 (citing

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DENNIS BUILDING

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POST OmcE Box 11549

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COLUMBIA, SC 29211-1549

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TELEPHONE 803-734-3970

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FACSIMILE 803-253-6283

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The Honorable Eldridge R. Emory
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April 12, 2006
Milford v. Aiken, 61 S.C. 110, 39 S.E. 233 ( 1901 )). Thus, the recording officer's duties entail those prescribed by law. Op. S.C. Atty. Gen., February 10, 2005. Section 30-5-90 of the South Carolina Code (Supp. 2005) requires the register of deeds

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to record in the order of the times at which they may be brought to his office, ... all conveyances and mortgages, renunciations of dower and other writings concerning the titles to lands situate in his county which may be lodged with him to be recorded if the execution of any such writing shall be proved by affidavit of a subscribing witness, or otherwise, as herein provided. As we stated in a prior opinion of this Office, this section statutorily requires the recording officer "to record these documents and instruments as they are presented to him for recordation." Op. S.C. Atty. Gen., January 20, 1982. Although a recording officer is statutorily mandated to record certain documents including deeds, the recording statutes contain several statutory requirements that must be satisfied before an instrument may be recorded. Section 30-5-30 of the South Carolina Code (Supp. 2005) requires proof of execution or compliance with the Uniform Recognition of Acknowledgments Act "before any deed or other instrument in writing can be recorded in this State." Section 30-5-80 of the South Carolina Code (Supp. 2005) requires the county auditor to endorse the deed before it can be recorded. Additionally, section 30-5-35 of the South Carolina Code (1991) mandates: "All deeds conveying an interest in land and all mortgages of real estate executed after July 1, 1976, must include a derivation clause in the property description and there must be inscribed on the deed or mortgage the mailing address of the grantee or mortgagee."

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The recording statutes also contain several provisions pertaining to plats filed with the register of deeds office. One provision allows owners of real property to file a plat of their property with the register of deeds office in the county where the property is located. S.C. Code Ann. § 30-5230 (Supp. 2005). In addition, when real property is subdivided and offered for sale according to a plat section 30-5-240 of the South Carolina Code ( 1991) necessitates the property owner file such plat with the county register of deeds office. Furthermore, section 30-5-230 of the South Carolina Code (Supp. 2005) states when a plat is recorded with the register of deeds office it "shall be equivalent to setting forth in extenso in such deed, mortgage or other instrument the boundaries, metes, courses or distances of such real estate as may be delineated or shown on any such plat or blueprint, tracing photostatic or other copy thereof." However, in our review of the recording statutes, we did not uncover any provisions requiring the recording officer to ensure the property description on the deed corresponds to any previously recorded plats before the deed may be recorded. Based on our findings above, the duties of a recording officer are ministerial in nature. Although the recording officer is charged with the duty to determine whether certain statutory

The Honorable Eldridge R. Emory
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April 12, 2006
requirements are met prior to the filing of an instrument, he or she is not charged with the duty to determine whether an instrument filed corresponds to a previously recorded plat. In addition, he or she is not charged with determining whether the instrument itself is valid. Accordingly, as long as the instrument meets the requirements for filing, the recording officer must file the instrument.

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Furthermore, as for the validity of an instrument that illustrates street names and a subdivision name different from a previously filed plat, this determination is factual in nature. "Because this Office does not have the authority of a court or other fact-finding body, we are not able, in a legal opinion, to adjudicate or investigate factual questions." Op. S.C. Atty. Gen., April 16, 2004. Therefore, we find this issue best left to the courts to address. Very truly yours,

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Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General