Could a South Carolina register of deeds refuse a document believed to be fraudulent or a sham?

Plain-English summary

In 2011, Berkeley County's register of deeds asked about papers that met ordinary recording formalities but looked unorthodox or like sham documents. The South Carolina Attorney General said the register could refuse a filing on a reasonable belief that it was materially false, fraudulent, or sham legal process. The statute also allowed removal of a document already in the public record on the same reasonable belief, after thirty days' written notice to the person on whose behalf it had been filed.

The opinion quoted a statutory definition of sham legal process covering documents not lawfully issued that purport to be court or government judgments, liens, or orders, or to determine someone's legal rights or property status. It also noted statutory recourse for someone whose filing was refused or removed and a provision protecting the clerk or register from damages for an improper refusal or removal.

Currency note

This opinion was issued in 2011. 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

Did a register have to accept a document merely because it met normal recording formalities? A: No. The AG said the statute permitted refusal when the register reasonably believed the paper was materially false, fraudulent, or sham legal process.

Could the register remove a document already recorded?
A: The opinion said yes on the same reasonable-belief ground, after thirty days' written notice to the person on whose behalf it was filed at the return address in the document.

What did the opinion mean by sham legal process?
A: It quoted a definition covering an unlawfully issued document purporting to be a court or government judgment, lien, or order, or purporting to determine legal rights or property status.

Background and statutory framework

The register asked about apparently suspicious filings that otherwise satisfied recording prerequisites. The opinion applied the South Carolina statute's reasonable-belief standard, its removal notice, and its provisions for recourse and official liability. It did not decide whether any identified document was actually fraudulent.

Citations and references

The opinion quoted the filing and removal provisions of South Carolina's document-recording statute in the original text below.

Subject

Concerning refusal or removal of suspected sham deed filings.

Requester

Ms. Cynthia B. Forte, Register of Deeds, Berkeley County

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-8-2011-3/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/forte-c-b-os-9192-2-8-11-recording-of-certain-docum.pdf

Original opinion text

ALAN~ WILSON

ATIORNEY GENERAL

February 8, 2011

Ms. Cynthia B. Forte
Register of Deeds
Berkeley County
P.O. Box 6122
Moncks Comer, SC 29461

Dear Ms. Forte:
We received your letter requesting an opinion of this Office concerning whether you, as a register of deeds, are required to file certain documents that, while meeting the legal prerequisites to recording, appear to be ''unorthodox" and perhaps "sham type documents." S.C. CODE ANN. § 30-9-30(B)(l) provides: "Ifa person presents a conveyance, mortgage,j udgment, lien, contract, or other document to the clerk of court or the register of deeds for filing or recording, the clerk of court or the register of deeds may refuse to accept the document for filing if he reasonably believes that the document is materially false or fraudulent or is a sham legal process." Further, if you have the samereasonabJe beliefregarding a document that has been filed, you " may remove the document from the public records after giving thirty days' written notice to the person on whose behalfthe document was filed at the return address provided in the document." S.C. CODE ANN. § 30-9-30(B)(2) For these purposes, "[s]ham legal process means a document that is not issued lawfully and that purports to be a judgment, lien, or order of a court or appropriate government entity, or otherwise purports to assert jurisdiction over or determine the legal or equitable status, rights, duties, powers, or privileges of a person or property." S.C. CODE ANN.§ 309-30(4)(a). Accordingly, if you reasonably believe that a document presented for filing is materially false or fraudulent, or is a sham legal process, you are permitted by law to refuse to file the document or remove said document from the public records. The statute provides recourse for those who believe their docurnentto be improperly refused for filing or improperly removed from filing, but S.C. CODE ANN.§ 30-9-30(B)(3) is clear that the clerk of court or register of deeds "is not liable for damages, RE.\IBERT

c. D ENNIS BUILDING • POST OFFICE Box 11549 • COLUMBIA, SC 2921 1-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

Ms. Cynthia Forte
Page2
February 8, 2011

personally or in his official capacity, for the improper refusal or removal" of said document. If you have further questions, please do not hesitate to contact me. Sincerely,

7'1ut?cn-Ou~-g~
Eliza~hAnn L. Felder

Assistant Attorney General
ED AND APPROVED BY:

Deputy Attorney General