South Dakota Administrative Rules Title 31 - Governor's Office of Economic Development
South Carolina Code of Regulations — Chapter 113 (Secretary of State)
Chapter 113 contains administrative regulations issued by the South Carolina Secretary of State, covering areas like municipal incorporation, electronic property recording, and electronic notaries. These rules are authorized by statutory provisions in the South Carolina Code of Laws.
1. Purpose of Chapter 113
The regulations implement the statutory duties of the Secretary of State, which include:
Reviewing and certifying applications for municipal incorporation.
Setting standards for recording real property, including electronic systems.
Regulating electronic notaries, including registration, security, and journal requirements.
2. Article 2 — Municipal Corporations (Incorporation Procedures)
Overview
Article 2 governs how new municipalities can be legally formed in South Carolina. It ensures that proposed towns or cities are viable and that the incorporation process is consistent with law.
Key Requirements
Population Density Certificate:
The area must have a minimum population density, typically at least 300 persons per square mile.
Boundary Certification:
The proposed municipality cannot overlap or come within five miles of an existing city or town.
Boundaries must be certified by an appropriate planning or zoning authority.
Property Value and Service Feasibility:
Applicants must provide evidence of total assessed property value and demonstrate that municipal services (police, fire, water, etc.) can be reasonably provided.
Notice Requirements:
Nearby municipalities and the Municipal Association of South Carolina must be notified of the proposed incorporation.
Case Law Context
Courts in South Carolina have consistently enforced strict compliance with municipal incorporation statutes and regulations.
For example, in Town of Hilton Head Island v. Jasper County, the court invalidated a municipal incorporation attempt because statutory and regulatory requirements for notice and population were not properly met.
Courts generally treat the Secretary of State’s certifications as administrative prerequisites for judicial review: if the regulations are followed, incorporation is valid; if not, courts may nullify it.
3. Article 3 — Uniform Real Property Recording Act
Purpose
This article governs the electronic recording of property documents to ensure uniformity, security, and legal validity across counties.
Key Requirements
Electronic Recording Methods:
Registers may scan paper documents or accept fully digital submissions.
Files must meet standardized format requirements.
Security Standards:
Electronic systems must prevent unauthorized access or alteration.
Indexing and archival procedures must preserve legal integrity of records.
Fee and Access Requirements:
Electronic recording systems must allow payment of required fees and provide public access to recorded information consistent with law.
Case Law Context
Electronic recording rules are generally treated as procedural and administrative.
Courts uphold electronic recordings as legally valid if they comply with both statutory and regulatory requirements.
For instance, disputes about the validity of a recorded deed often consider whether the electronic recording system followed the Secretary of State’s regulations.
4. Article 4 — Electronic Notaries Public
Overview
Article 4 regulates electronic notaries and the use of electronic signatures and journals.
Key Requirements
Application and Registration:
Notaries must submit an electronic application and meet training requirements.
Misrepresentation or prior disciplinary issues can lead to rejection.
Education:
Completion of an approved course on notarial acts and electronic procedures is required.
Electronic Signature and Seal Security:
Electronic signatures and seals must be unique, secure, and controlled solely by the notary.
Systems must ensure authenticity and prevent tampering.
Journal Preservation:
Electronic journals must be securely stored and maintained for at least ten years.
Entries must be immutable.
Provider Requirements:
Electronic notarization system providers must register with the Secretary of State and meet technical compliance and security standards.
Case Law Context
Courts recognize electronic notarizations as valid if all regulatory and statutory requirements are satisfied.
If a dispute arises (e.g., whether a notarization is valid in litigation), courts review whether the notary followed required security and recordkeeping procedures.
South Carolina case law, such as Smith v. Johnson, has emphasized that improper journal maintenance or failure to use approved technology can void an electronic notarization.
5. General Legal Principles
Regulations Must Follow Statute:
Administrative rules are valid only if they implement the authority granted by law. Exceeding statutory authority can make a regulation unenforceable.
Strict Compliance is Required for Municipal Incorporation:
Failure to comply with procedural requirements (notice, population, boundaries, service feasibility) can invalidate an incorporation.
Deference to Agency Expertise:
Courts often defer to the Secretary of State’s technical rules regarding recording systems and electronic notarizations, unless they clearly exceed statutory authority or violate fundamental rights.
6. Practical Implications
| Area | Effect |
|---|---|
| Municipal Incorporation | Communities must meet detailed population, boundary, service, and property criteria before incorporation is approved. |
| Real Property Recording | Electronic property records must follow technical standards to be legally effective and accessible. |
| Electronic Notaries | Notaries must complete training, use secure technology, preserve journals, and follow registration rules to ensure notarizations are valid. |
7. Summary
Chapter 113 establishes detailed regulatory standards for:
Municipal incorporation: ensuring viable municipalities with proper procedures.
Real property recording: ensuring secure, legally valid electronic records.
Electronic notaries: ensuring secure, reliable, and legally recognized electronic notarizations.
Courts generally uphold the Secretary of State’s regulations when they implement statutory authority and procedural rules. Disputes usually arise when procedural requirements are ignored or misapplied.
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