Could a South Carolina register of deeds require attorneys to submit all real estate documents electronically?

Plain-English summary

In 2021, the South Carolina Attorney General concluded that a court would likely find a register of deeds could not require attorneys to transmit every real estate document electronically. The electronic-recording statute said a register that accepted electronic documents must continue accepting paper documents authorized by state law and index both kinds.

The opinion relied on that statutory language, an earlier AG opinion on tax-lien filings, and the statute's editorial comment. It treated electronic recording as an added method of filing, rather than a reason to refuse paper filings.

Currency note

This opinion was issued in 2021. 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 an elected register of deeds impose electronic-only filing on attorneys?
A: The Attorney General said a court would likely reject that requirement because the statute directed registers accepting electronic filings to continue accepting authorized paper documents.

Q: Did offering electronic recording end paper-document acceptance?
A: No. The opinion read the law as requiring the office to accept and index both types where paper filing was otherwise authorized.

Q: Did the opinion discuss paper tax-lien filings too?
A: Yes. It cited an earlier AG opinion that had read the same paper-acceptance requirement alongside a separate electronic filing rule for state tax liens.

Background and statutory framework

The opinion applied S.C. Code Ann. § 30-6-40(b)(4), part of the Uniform Real Property Electronic Recording Act. It quoted the requirement to keep accepting paper documents and placing entries for both forms in the same index. The office also cited its earlier interpretation of that provision and the statute's explanatory comment.

Citations and references

The cited legal authorities and the office's conclusions appear in the linked official opinion. Its analysis addressed the question presented in 2021.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-11-2021-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2021/06/02608591.pdf

Original opinion text

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Alan Wilson
Attorney General

June 11,2021

The Honorable Timothy L. Nanney
Greenville County Register of Deeds
301 University Ridge, Ste. 1300
Greenville, SC 29601-3681
Dear Mr. Nanney:

You have requested an opinion of this Office regarding whether an "elected Register of Deeds"

can "legally require all real estate documents submitted by a South Carolina licensed attorney be transmitted to the Register of Deeds electronically only." LAW/ANALYSIS

The recording of documents by a register of deeds is provided for in the Uniform Real Property Electronic Recording Act ("URPERA"), S.C. Code Ann. § 30-6-10 et seg. (1976 Code, as amended). Section 30-6-40 states that a register of deeds "who accepts electronic documents for recording shall continue to accent paper documents as authorized by state law and shall place entries for both types of documents in the same index." S.C. Code Ann. § 30-6-40(b)(4) (1976 Code, as amended) (emphasis added). It explains that "[i]n this section, 'paper document' means a document that is received by the register in a form that is not electronic." S.C. Code Ann. § 30-6-40(a) (1976 Code, as amended).

In a prior opinion of this Office to you, we discussed section 30-6-40(b)(4) and section 12-53-45, which provided that "[w]hen filing documents relating to the enforced collection of taxes due this State with county clerks of court and registers of deeds, the department [of revenue] shall file those documents electronically if the clerk of court or register of deeds accepts electronic

filings." See On. S.C. Attv. Gen.. 2018 WL 1160085 (Jan. 22, 2018); S.C. Code Ann. § 12-5345 (1976 Code, as amended). We explained that the two statutes had to be construed together because they related to the same subject matter.

We stated that "[w]hile Section 12-53-45
mandates that the SCDOR [South Carolina Department of Revenue] file state tax liens electronically, the statute does not state what duty a register of deeds has." Op. S.C. Attv, Gen.. 2018 WL 1160085. Reading section 30-6-40(b)(4)'s language regarding the acceptance of documents by registers of deeds in conjunction with section 1 2-53-45 's silence regarding the same, we determined that "the General Assembly's legislative intent appears to mandate that a

• register of deeds, even one whose office accepts electronic documents, must accept and index a
  paper document from a filer, including the SCDOR." Id (emphasis added). Based on the plain

RembertC. Dennis Building

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Post Office Box 11549

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Columbia, SC 2921 1-1549

• Telephone 803-734-3970

• Facsimile 803-253-6283

The Honorable Timothy L. Nanney
Page 2
June 11,2021

language of section 30-6-40(b)(4) and our prior opinion,1 we believe that a court would likely find that a register of deeds cannot legally require an attorney to transmit all real estate documents electronically for recording. Our conclusion is supported by the editors' notes in reference to section 30-6-40(b)(4):

This act does not require that persons engaging in real estate transactions use electronic documents in order to have their documents recorded. It merely permits the recorder to accept electronic documents if they are presented electronically. Economics, availability of technology, and human nature suggest that not everyone will begin to use electronic real estate documents immediately.

It

will

likely

be

some

time

before

the

use

of

electronic documents becomes dominant and perhaps well beyond that

before

paper

documents

disappear

altogether

from

the

conveyancing process. In recognition of that fact, paragraph (4) requires the recorder to continue to accept paper documents even after

establishing

an

electronic

recording

system.

This

is

a

mandatory and not an elective provision.
S.C. Code Ann. § 30-6-40, Comment.
CONCLUSION
It is our opinion that a court would likely find that a register of deeds cannot legally require an attorney to transmit all real estate documents electronically for recording. See S.C. Code Ann. § 30-6-40(b)(4) (1976 Code, as amended) (a register of deeds "who accepts electronic documents for recording shall continue to accept paper documents as authorized by state law and shall place

entries for both types of documents in the same index.").
Sincerely,

Z£*

1—

Elinor V. Lister
Assistant Attorney General

See Op. S.C. Attv. Gen.. 2020 WL 6379587 (Oct. 22, 2020) ("This Office recognizes a long-standing rule that it will not overrule a prior opinion unless it is clearly erroneous or there has been a change in applicable law.")

The Honorable Timothy L. Nanney
Page 3
June 11,2021

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General