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| (c) confidential negotiating strategy not disclosed in an offer as terms of a sale;
(d) the motivation of a seller for selling property or the motivation of a buyer for buying property.
(3) that the clients may choose to consent to disclosed dual agency or may reject it;
(4) that the clients have read and understood the agency agreement and the agency disclosure form and acknowledge that their consent to dual agency is voluntary.
(N) Duties of a subagent: A subagent is a designated broker and all associated licensees engaged by a broker of another company to act as agent for his client. A subagent owes the same duties and responsibilities to the client as the client's primary broker pursuant to subsections 40-57-138 (C) and (H).
(O) Prospective buyers of real estate who do not choose to establish an agency relationship with a licensee but who use the services of the licensee are considered customers and shall receive the following:
(1) a meaningful explanation of agency relationships in real estate transactions including the customer's right to choose no representation by licensee;
(2) an explanation of scope of services to be provided by licensee;
(3) fairness, honesty, and accurate information in all dealings.
(P) The provisions of this section which are inconsistent with applicable principles of common law shall supersede the common law, and the common law may be used to aid in interpreting or clarifying the duties described in this section. Except as otherwise stated, nothing in the section precludes an injured party from bring a cause of action against licensees, their companies, or their brokers-in-charge.
Section 40-57-139. (A) A licensee shall provide in a timely manner to all buyers and sellers with whom they work:
(1) a meaningful explanation of agency relationships in real estate transactions;
(2) a completed agency disclosure form prescribed by the commission indicating whom the licensee shall represent in a real estate transaction.
(B) A licensee who becomes a seller's agent shall provide a completed agency disclosure form to the seller at the time the listing is obtained and signed.
(D) A licensee who becomes a disclosed dual agent shall provide to both buyer and seller a completed agency disclosure form in accordance with Section 40-57-138.
(E) A licensee who begins working with a potential buyer shall provide to the potential buyer a completed agency disclosure form at the first substantive contact. At the time of contact, it must be established between licensee and potential buyer whether the buyer will be a 'customer' or 'client'. Substantive contact must be the earlier of the following:
(1) prequalifying by requesting specific financial information in order to determine ability to conclude a real estate transaction; or
(2) prior to showing real estate to a prospective buyer, other than at an open house.
(F) If first contact occurs over the telephone, licensee shall provide buyer with the completed agency disclosure form at the first meeting.
Section 40-57-140. A real estate broker and all associated licensees owe no duty or obligation to a client following termination, expiration, completion, or performance of an agency agreement, except the duties of:
(1) accounting in a timely manner for all money and property related to and received during the relationship; and
(2) treating as confidential any information provided by the client during the course of the relationship that could have a negative impact on the client's real estate activity, except as outlined in Sections 40-57-138(C)(6) and 40-57-138(H)(6).
Section 40-57-141. (A) In addition to the provisions of Section 40-1-110, the commission may deny issuance of a license to an applicant or may take disciplinary action against a licensee who:
(1) makes a substantial misrepresentation involving a real estate transaction;
(2) makes false promises of a character likely to influence, persuade, or induce;
(3) pursues a continued and flagrant course of misrepresentation, or makes false promises through associated licensees or any medium of advertising, or otherwise;
(4) in the practice of real estate demonstrates bad faith, dishonesty, untrustworthiness, or incompetency in a manner as to endanger the interest of the public;
(5) represents or attempts to represent a real estate broker other than his broker-in-charge or property manager-in-charge without the express
(6) guarantees or authorizes and permits any associated licensee to guarantee future profits from the resale of real estate;
(7) makes a dual set of contracts, written or otherwise, by stating a sales price higher than the actual sales price in an effort to obtain a larger loan from a lender or lending institution or for the purpose of misinforming a governmental agency or any other reason;
(8) is convicted of forgery, embezzlement, breach of trust, larceny, obtaining money or property under false pretense, extortion, fraud, conspiracy to defraud, or any other offense involving moral turpitude, or pleading guilty or nolo contendere to any such offense in a court of competent jurisdiction of this State, any other state, or any federal court;
(9) fails to report to the department in writing by certified mail, within ten days, notice of conviction of a crime set forth above;
(10) fails, within a reasonable time, to account for or to remit any monies coming into his possession which belong to others;
(11) pays a commission or compensation to an unlicensed individual for conducting activities requiring a license as defined in this chapter;
(12) violates any provision of law relating to a buyer's freedom of choice in choosing an attorney, insurance agent, title insurance agent, or any other service provider to facilitate the buyer's real estate transaction;
(13) fails to disclose in accordance with Section 40-57-139 the party or parties for whom the licensee will be acting as an agent in a real estate transaction;
(14) receives compensation from more than one party except with the full knowledge and written consent of all parties;
(15) represents more than one party in a real estate transaction without the full written knowledge and consent of all parties the licensee represents as provided in Section 40-57-138(M);
(16) acts in the dual capacity of agent and undisclosed principal in a real estate transaction;
(17) accepts deposit money which is to be delivered to the licensee's principal in a real estate transaction without informing the payor and having the payor acknowledge in writing who will hold the money received by the licensee;
(18) issues a check in connection with his real estate business which is returned for insufficient funds or closed account;
(19) fails to disclose in accordance with Section 40-57-138 any material facts concerning a real estate transaction;
(21) violates a lawful rule or order of the commission.
(B) If after an investigation, charges of a license law violation are brought against a licensee, the broker-in-charge or property manager-in-charge must be notified also of the charges.
Section 40-57-150. (A) Investigations must be conducted in accordance with Section 40-1-80.
(B) Restraining orders must be filed in accordance with Section 40-1-100.
(C) (1) Whenever the department has reason to believe that a violation of this chapter has occurred, an investigation must be initiated within thirty days.
(2) A hearing on the charges must be at the time and place designated by the commission and must be conducted in accordance with the Administrative Procedures Act.
(3) The commission shall render a decision and shall serve immediate notice, in writing, of the commission's decision to the applicant or licensee charged therein. The commission shall state also in the notice the date upon which the ruling or decision shall become effective.
(4) The department shall maintain a public docket or other permanent record, in which must be recorded all orders, consent orders, or stipulated settlements.
(D) A licensee may voluntarily surrender his license in accordance with Section 40-1-150.
(E) (1) The commission may impose disciplinary action in accordance with Section 40-1-120.
(2) Upon determination by the commission that one or more of the grounds for discipline exists, as provided for in Section 40-1-110 or Section 40-57-140, the commission may impose a fine of not less than one hundred or more than one thousand dollars for each violation.
(3) Nothing in this section prevents a licensee from voluntarily entering into a consent order with the commission wherein violations are not contested and sanctions are accepted.
Section 40-57-170. (A) Service of a notice provided for by law upon a nonresident licensed under this chapter or upon a resident who, having been licensed, subsequently becomes a nonresident or after due diligence cannot be found at his usual abode or place of business in this State, may be made by leaving with the Director of the Department of Labor, Licensing and Regulation a copy of the notice, and accompanying documents. A copy of the notice, any accompanying documents, and a
(B) A continuance may be given in a hearing under this chapter for which notice is given pursuant to this section so as to afford the licensee a reasonable opportunity to appear and be heard.
Section 40-57-180. (A) The department may not be involved in the resolution of disputes between licensees over the payment or division of commission.
(B) A resident licensee may pay a part of his commission on a cooperative basis to a licensee of another state or jurisdiction if that licensee does not conduct in this State any of the negotiations for which a fee, compensation, or commission is paid.
(C) The department may conduct periodic inspections of the offices of licensees in order to assist with and to ensure compliance with this chapter.
(D) It is the responsibility of a licensee to keep on file with the department a current mailing address.
(E) No cause of action may arise against an owner of real estate or agent of any party to a transaction for failure to disclose in a transaction the fact that:
(1) the subject real estate is or was occupied by an individual who was infected with a virus or any other disease which has been determined by medical evidence as being highly unlikely to be transmitted through occupancy of a dwelling place either presently or previously occupied by the infected individual; or
(2) the death of an occupant of a property has occurred or the manner of the death.
(F) Nothing in subsection (E) precludes an action against an owner of real estate or agent of such owner who makes intentional misrepresentations in response to direct inquiry from a buyer or prospective buyer with regard to psychological impacts or stigmas associated with the real estate.
(G) The commission shall establish and publish standards relative to the approval and conduct of all education required by this chapter.
(1) The department shall review, approve, and regulate education courses required by this chapter as well as providers and instructors including, but not limited to, accredited colleges, universities, private business entities, organizations, schools, associations, and institutions.
(3) Application by providers seeking approval to offer and conduct educational instruction or application by instructors must be made on a form prescribed by the department and accompanied by applicable fees not less than sixty days prior to a course offering and must be approved by the department prior to the commencement of any instruction.
(4) If an application for provider, instructor, or course is not approved, the reason must be detailed and the applicant must be given thirty days to respond.
(5) Upon approval, certificates must be issued to providers, courses, and instructors, to be renewed biennially.
(6) Approved courses must be taught by approved instructors who are qualified and have demonstrated knowledge of the subject matter to be taught as well as the ability to teach.
(7) Approved instructors shall attend annual instructor development workshops sponsored by the department whenever possible or provide evidence of equivalent hours of continuing education which increase their knowledge of either the subject content in their area of expertise or their teaching techniques.
Section 40-57-190. Payment and collection of costs associated with investigations and prosecution of violations must comply with Section 40-1-170.
Section 40-57-200. Imposition and collection of all costs and fines must comply with Section 40-1-180.
Section 40-57-210. The provisions of Section 40-1-190 pertaining to privileged communications, whether written or oral, made by or on behalf of a person apply.
Section 40-57-220. (A) An individual who acts as a real estate broker, real estate salesman, or real estate property manager, or who advertises or assumes to act as such without a license issued by the department may be charged in accordance with Section 40-1-200.
(B) A licensee who fails to renew his license or who places his license on inactive status and continues to engage in real estate activities requiring a license is guilty of a misdemeanor and must be punished as provided for in subsection (A) above.
Section 40-57-230. Civil actions may be brought in accordance with Section 40-1-210.
(A) an unlicensed owner of real estate who owns any interest in the real estate;
(B) an attorney at law acting within the scope of his duties involved in the legal representation of his client/owner;
(C) agencies and instrumentalities of the state or federal government and their employees acting within the scope of their official duties;
(D) foresters registered under the provisions of Chapter 27 of Title 48, so long as the sale of any land is merely incidental to the sale of timber on the land;
(E) court-appointed receivers and trustees while acting within the scope of their appointment.
Section 40-57-250. If a provision of this chapter or the application of a provision of this chapter to a person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable."/
Renumber sections to conform.
Amend totals and title to conform.
Rep. CATO explained the amendment.
Rep. SCOTT raised the Point of Order that Amendment No. 1A was out of order as it was not germane.
Rep. CATO argued contra the Point in stating that the Bill dealt with LLR as a whole and how LLR interacted with all of the agencies that are now under them. He further stated that the accountants just happened to be one of the things under it and that the Real Estate Commission also was a part of the Bill.
The SPEAKER stated, citing page 46 of the Bill, that it listed a number of professions and occupations that were going to be administered.
Rep. CATO stated that the amendment simply placed the Practice Act which tied into the Bill and there would be bills later to place all of the them under the Practice Act. He further stated that it recodified the Real Estate Commission.
Rep. SCOTT stated that this provision of LLR was to repeal Chapter 73 and the amendment dealt with Chapter 57. He further stated that the amendment dealt with regulatory provisions and the Bill did not.
Rep. CATO continued speaking.
The amendment was then adopted.
The Senate amendments, as amended, were then agreed to and the Bill ordered returned to the Senate.
The Senate amendments to the following Bill were taken up for consideration.
H. 4584 -- Reps. Cooper, H. Brown, Fulmer, Knotts, Young-Brickell, Wofford, Hallman, Quinn, Cato, P. Harris, Harrell and Limehouse: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 10-1-210 SO AS TO MAKE IT UNLAWFUL TO DISTURB OR INTERFERE OR REMOVE MONUMENTS OR MEMORIALS FOR WAR VETERANS AND PROVIDE A PENALTY.
Rep. YOUNG-BRICKELL moved to adjourn debate upon the Senate amendments until Wednesday, May 29.
Rep. SCOTT moved to table the motion to adjourn debate.
Rep. YOUNG-BRICKELL demanded the yeas and nays, which were taken resulting as follows:
Those who voted in the affirmative are:
Anderson Bailey Baxley Breeland Brown, J. Byrd Canty Cave Clyburn Cobb-Hunter Cromer Davenport Delleney Govan Harris, J. Harris, P. Hines, J. Hines, M. Hodges Howard Inabinett Jennings Keyserling Kinon Lee Limbaugh Martin McAbee McElveen McKay
McMahand McTeer Moody-Lawrence Neal Neilson Phillips Rhoad Rogers Scott Sheheen Shissias Stoddard Tucker Whipper, L. Whipper, S. White Wilder Wilkes Williams
Those who voted in the negative are:
Allison Beck Cain Cato Chamblee Cooper Cotty Dantzler Easterday Felder Fleming Gamble Hallman Harrell Hutson Jaskwhich Kelley Kirsh Klauber Knotts Koon Lanford Law Limehouse Littlejohn Loftis McCraw Meacham Quinn Rice Riser Robinson Sandifer Seithel Sharpe Simrill Smith, D. Smith, R. Spearman Stille Stuart Townsend Tripp Vaughn Waldrop Walker Wells Whatley Wilkins Witherspoon Wofford Wright Young Young-Brickell
So, the House refused to table the motion.
The question then recurred to the motion to adjourn debate, which was agreed to.
The Senate amendments to the following Bill were taken up for consideration.
H. 4372 -- Reps. Lanford, Herdklotz, Bailey and Clyburn: A BILL TO AMEND SECTIONS 49-11-10 AND 49-11-20, BOTH AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PROHIBITIONS AGAINST OVERFLOWING OR KEEPING WATER UPON THE LAND OF ANOTHER PERSON, SO AS TO PROVIDE THAT RELEASING RESERVED WATER MAY NOT INJURE THE PROPERTY OF ANOTHER AND TO AUTHORIZE A CIVIL ACTION FOR INJUNCTIVE RELIEF AND MONETARY DAMAGES FOR VIOLATIONS.
Reps. BAXLEY and S. WHIPPER proposed the following Amendment No. 1A (Doc Name P:\amend\DKA\3836DW.96), which was adopted.
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/SECTION 1. Section 49-11-10 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"Section 49-11-10. (A) No person shall be permitted or allowed to may make or keep up any a dam or bank to stop the course of any waters so as to overflow the lands of another person without first obtaining the consent of such that person first had and obtained nor shall any and no person be permitted or allowed to may let off any reserved water to injure the crops upon the grounds of other persons.
(B) A person owning or operating a dam which impounds a reservoir too small to be regulated under the South Carolina Dams and Reservoirs Safety Act Regulations or a dam which, in the judgement of the Department of Health and Environmental Control, poses no significant threat of danger because of its size and location to downstream life or property is liable for damages for damage to the real or personal property of another caused by the poor construction, operation, or maintenance of the dam or cause by flooding due to inadequate spillway control.
(C) A person aggrieved by a violation of subsection (B) may bring a civil action for injunctive relief and for monetary damages resulting from the violation."
SECTION 2. Section 49-11-20 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
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