Could a South Carolina register of deeds accept electronic recordings before the implementing rules were final?

Plain-English summary

Greenville County’s register of deeds asked whether he could accept electronic property recordings before regulations implementing South Carolina’s new electronic-recording act were complete. The Attorney General answered no in August 2009. It said the register should wait until the Secretary of State’s rulemaking process was finalized under the legislative review procedure.

The opinion reported that proposed regulations had been drafted and published and were expected to go to the General Assembly for review. Those steps did not yet complete promulgation. The letter concerned the transition period under the then-new act; its advice did not address the law after the rules were finalized.

Currency note

This opinion was issued in 2009. 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 Greenville County start recording deeds electronically while rules were pending? A: The Attorney General said it should not proceed until the implementing regulations were fully promulgated.

Q: Had proposed regulations already been prepared?
A: According to the opinion, the Secretary of State’s office said proposed rules had been drafted and published, but still awaited legislative review.

Q: Who was responsible for the electronic-recording standards? A: The quoted act directed the Secretary of State to promulgate standards on the Electronic Recording Committee’s recommendation.

Q: Did the opinion decide how electronic recording worked after final rules? A: No. It answered whether the register could start before the 2009 promulgation process ended.

Background and statutory framework

The Uniform Real Property Electronic Recording Act directed the Secretary of State to promulgate implementing standards upon the Electronic Recording Committee’s recommendation. The county register said the promulgation process had not finished and asked whether electronic recording could start anyway.

The Attorney General reported the Secretary of State’s description of the pending regulations and the General Assembly review period under Section 1-23-120. Because that process remained open, the office advised the register not to proceed with electronic recording until it was finalized.

Citations and references

Statutes discussed: Sections 30-6-50(a) and 1-23-120 of the South Carolina Code, on electronic-recording standards and regulatory review.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-13-2009/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/nanney-t-l-os-8842-8-13-09-uniform-real-property-electronic-recording-act.pdf

Original opinion text

HENRY MCMASTER
ATIORNEY G ENERAL

August 13, 2009

The Honorable Timothy L. Nanney
Register of Deeds, County of Greenville
301 University Ridge, Suite 1300
Greenville, South Carolina 2960 l
Dear Mr. Nanney:
In a letter to this office you referenced recently-enacted S.C. Code Ann. §§30-6-10 et seq., the Uniform Real Property Electronic Recording Act ("the Act'') which, according to your letter, is the final step toward allowing property transactions to be recorded electronically in this State. Pursuant to Section 30-6-50(a), "[u]pon the recommendation of the Electronic Recording Committee1, the Office of the Secretary of State shall promulgate regulations to adopt standards to implement this chapter." According to your letter, the promulgation process is not yet finalized and you are questioning the legality of accepting electronic recording prior to the completion of the promulgation process. According to the Secretary of State's office, proposed regulations to implement the Act have been drafted, published and no request for a public hearing was received. I am informed that such regulations will be forwarded to the General Assembly for its review in early January consistent with the provisions of S.C. Code Ann. § 1-23-120 which allows for a one hundred twenty day period of review. In the opinion of this office, until the promulgation process is finalized consistent with Section 1-23-120, you should not proceed with electronic recording. Ifyou have any questions about the promulgation process, you should contact the Secretary of State' s office.

'Section 30-6-20(4) defines the "Electronic Recording Committee" as " ...a committee composed of seven members and charged with developing the standards to implement this chapter. The Secretary of State shall serve as the chairman ofthe committee and the Governor shaJl appoint six members ...."

REM.BERT c. D ENNIS B UILDING •

POST O r"FJCE Box 11549

•

COLUMBIA , SC 29211- 1549

•

TELEPHONE 803-734-3970

•

FACSIMllll 803-253-6283

The Honorable Timothy L. Nanney
Page2
August 13, 2009

If there are any questions, please advise.

Very truly yours,
Henry McMaster

a:;;~~
By:

Charles H. Richardson
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

1./

~/40
Robert D. Cook
Deputy Attorney General

cc:

Melissa Dunlap, Chief of Staff & General Counsel
Office of the Secretary of State
P. 0. Box 11350
Columbia, South Carolina 29211