SC 2023-opinion-addressing-whether-a-county-may-purchase-real-property-by-resolution-or-ordinance September 08, 2023

Does a South Carolina county have to use an ordinance, not just a resolution, to buy real property?

Short answer: An ordinance. The AG concluded that the statutes governing counties contemplate transferring interests in real property by ordinance, and that this reasoning applies to a county's purchase of a fee-simple interest. So a county should acquire real property by ordinance rather than by simple resolution.

Disclaimer: This is an official South Carolina Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed South Carolina attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

Opinion addressing whether a county may purchase real property by resolution or ordinance.

Requester

Requested by Brian Hulbert, Deputy County Attorney, Beaufort County.

Plain-English summary

A Beaufort County deputy attorney asked a procedural question: when a county buys real property, must it do so by ordinance, or can a simple resolution suffice?

The Attorney General's office answered by relying on its own 2009 opinion, which had analyzed how counties transfer property interests. That earlier opinion found that the statutes governing counties point toward using an ordinance. Section 4-9-30 lists county powers, including the authority to acquire real property by purchase or gift and to dispose of real and personal property (§ 4-9-30(2)), and the authority to enact ordinances to implement those powers (§ 4-9-30(14)). Section 4-9-130, which requires public hearings before a county sells or leases its real property, also points to using ordinance procedures for those actions.

Reading those provisions together, the office concluded the statutes contemplate transferring interests in real property by ordinance. While the 2009 opinion arose from an easement question, the office said the same analysis applies to a county's purchase of a fee-simple interest in real property. The practical takeaway: a county should use an ordinance, not just a resolution, to acquire real property.

What this means for you

County councils and county attorneys: Under this opinion, the statutory scheme (Section 4-9-30 and Section 4-9-130) channels transfers of county real property interests through ordinances, and the office applied that reasoning to a county's purchase of a fee-simple interest. The opinion frames an ordinance, with its attendant procedures, as the appropriate vehicle rather than a simple resolution.

Residents following a county land deal: The opinion ties the ordinance requirement to the public-hearing protection in Section 4-9-130, which requires a hearing before a county sells or leases its real property, part of why the office reads these actions as ordinance matters.

Common questions

Can a South Carolina county buy land just by passing a resolution?
This opinion indicates a county should act by ordinance. The office read the county statutes as contemplating the transfer of real property interests by ordinance and applied that to a fee-simple purchase, rather than treating a resolution as sufficient.

Which statutes point to using an ordinance?
The opinion relies on Section 4-9-30, which lists county powers including acquiring and disposing of real property (§ 4-9-30(2)) and enacting ordinances to implement those powers (§ 4-9-30(14)), and Section 4-9-130, which requires public hearings and references ordinance procedures for selling or leasing county real property.

Does this apply only to selling property, or also to buying it?
The 2009 opinion the office relied on involved an easement, but the office said the analysis "is certainly applicable to a purchase of a fee simple interest in real property," extending the ordinance approach to acquisitions.

Background and statutory framework

South Carolina counties operate under the Home Rule provisions of Title 4. Section 4-9-30 enumerates county powers, including the power "to acquire real property by purchase or gift; to lease, sell or otherwise dispose of real and personal property" (§ 4-9-30(2)) and the power "to enact ordinances for the implementation and enforcement of the powers granted" (§ 4-9-30(14)). Section 4-9-130 requires public hearings on certain county-council actions, including a decision to sell, lease, or contract to sell or lease county-owned real property, and references the procedures and requirements governing ordinances. Drawing these together, and following its February 17, 2009 opinion, the office concluded that an ordinance is the proper means for a county to transfer or acquire an interest in real property.

Citations

Statutes: Section 4-9-30, including S.C. Code Ann. § 4-9-30(2) and section 4-9-30(14); section 4-9-130.

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

September 08, 2023

Mr. Brian Hulbert, Esq.
Deputy County Attorney
Beaufort County

P.O. Drawer 1228
Beaufort, SC 29901-1228

Dear Mr. Hulbert:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter
asks whether a county may purchase real property by resolution or ordinance.

This Office’s February 17, 2009, opinion to Jasper County Attorney, Marvin C. Jones,
addressed “whether or not the granting ofa utility easement by the county over real property which
it owns should be authorized by ordinance or by resolution.” Op. S.C. Att’y Gen., 2009 WL 580557
(February 17, 2009). In part crucial point to your inquiry, the opinion states:

We find further support for our position in the fact the statutes governing
counties appear to call for the transfer of property rights by use of an ordinance.
Section 4-9-30 of the South Carolina Code (1986 & Supp. 2007) provides a list of
the powers afforded to counties by the Legislature. Included in this list is the
authority “to acquire real property by purchase or gift; to lease, sell or otherwise
dispose of real and personal property....” S.C. Code Ann. § 4-9-30(2) (1986). In
addition, section 4-9-30(14) of the South Carolina Code (1986) gives counties the
authority “to enact ordinances for the implementation and enforcement of the
powers granted in this section....” As such, section 4-9-30 contemplates the transfer
of property interests by ordinance. Moreover, as you reference in your letter, section
4-9-130 of the South Carolina Code (1986), requiring public hearings on certain
actions taken by county councils, states that a public hearing is required for the
“sell, lease or contract to sell or lease real property owned by the county.”
Moreover, this provision also references the fact that the procedures and
requirements governing ordinances shall be used in taking these actions. Thus, this
reference further indicates that an ordinance is required for a county to transfer an
interest in real property.

ROBERT C. DENNIS BUILDING • POST OFFICE BOX 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970

Mr. Brian Hulbert, Esq.
Page 2
September 08, 2023

Id. While the opinion continued on to evaluate whether a transfer of an easement was also subject
to these same requirements, this analysis is certainly applicable to a purchase of a fee simple
interest in real property. I have attached a copy of the opinion for your reference.

Best regards, ;

Matthew Houck
Assistant Attorney General

AND APPROVED BY:

obert D. Cook
Solicitor General