Recently, I had an issue come up in my commercial real estate practice that had me recalling Wayne Brady, Colin Mochrie, Ryan Stiles, and the rest of the Whose Line comedians. The question centered upon who was responsible for maintaining a specific road in a subdivision—the developer who had built the road or the local government to which the developer had dedicated the road via recorded plat.
After looking at the current landscape of applicable law in South Carolina, it seems that our current mechanisms for road dedication result in a process where “the rules are made up—and they don’t make sense!” In this article, I detail the current common-law rules surrounding road dedication in our state, discuss how they sometimes leave questions of rights and obligations ambiguous, and propose a statutory scheme to provide certainty to landowners, prospective buyers, local governments, and (most importantly, of course) title attorneys.
Common law: Current South Carolina dedication approach
Unlike states in which dedication procedures are set by statute, South Carolina dedication rules derive from case law. South Carolina courts have held that there are two key elements in a dedication: (i) an offer to dedicate the road to the public and (ii) acceptance by the public.[i]
The offer to dedicate must be made in a positive and unmistakable manner.[ii] Generally, dedication analysis does not engender much confusion. Our courts have explained that language granting rights to the public in deeds, declarations, recorded plats, and other writings constitutes a valid offer of dedication.[iii] While intent to dedicate can be inferred in unusual circumstances, one can almost always look to the documents in the chain of title to see if there has been an offer of dedication.
Proof of “acceptance by the public” is decidedly more difficult to decipher. Our Supreme Court has explained that no public rights (or obligations) attach to streets until “there has been an express or implied acceptance of the dedication, evidenced by either general public use or by the acts of public authorities.”[iv] Further, the proof of acceptance must be “strict, cogent, and convincing.”[v] Sometimes, this is easy to prove, such as when a county or municipality records a document evidencing the dedication or otherwise obviously evidences an express acceptance of an offer to dedicate.
Some public bodies have taken note of the standard of proof and instituted affirmative steps to estop any argument that they have accepted a particular dedication. For example, the City of Rock Hill requires certification language on every final plat that the owner “acknowledge[s] that dedication does not mean acceptance by the [City, and] to the extent that the [City] has not specifically and in writing accepted any of such areas or improvements” the owner remains liable and responsible.[vi] This language protects the city against any unintentional acceptance, as explained in the next paragraph.
Continue reading the full article in November’s issue of SC Lawyer Magazine.
If you have questions about this topic or other related matters, please contact Phillips Workman. Phillips focuses his practice on commercial real estate, finance and corporate law matters. He works with members of our team in drafting and negotiating purchase and sale agreements, commercial leases, deeds, mortgages, ground leases, easements and other real estate documents. He provides counsel to businesses for a variety of transactional needs, including corporate matters, contract drafting and negotiation and general business counsel.
This article was first published in SC Lawyer Magazine and has been reprinted here with permission from the SC Bar.