H 4861 Session 111 (1995-1996)
H 4861 General Bill, By Boan
Similar(S 1279)
A Bill to amend Chapter 57, Title 40, as amended, Code of Laws of South
Carolina, 1976, relating to the licensure and regulation of real estate
brokers, counselors, salesmen, appraisers, auctioneers, and property managers,
so as to revise the Chapter to conform to a uniform framework for the
organization and operation of professional and occupational boards.
04/02/96 House Introduced and read first time HJ-4
04/02/96 House Referred to Committee on Labor, Commerce and
Industry HJ-4
04/24/96 House Committee report: Favorable with amendment Labor,
Commerce and Industry HJ-3
05/01/96 House Amended HJ-14
05/01/96 House Read second time HJ-16
05/02/96 House Read third time and sent to Senate HJ-7
05/02/96 Senate Introduced and read first time SJ-43
05/02/96 Senate Referred to Committee on Labor, Commerce and
Industry SJ-43
05/23/96 Senate Recalled from Committee on Labor, Commerce and
Industry SJ-13
06/13/96 Senate Amended SJ-43
06/13/96 Senate Read second time SJ-43
06/13/96 Senate Ordered to third reading with notice of
amendments SJ-43
06/26/96 Senate Continued SJ-16
06/27/96 Senate Read third time and returned to House with
amendments SJ-8
Indicates Matter Stricken
Indicates New Matter
AMENDED AND READ SECOND TIME
June 13, 1996
H. 4861
Introduced by REP. Boan
S. Printed 6/13/96--S.
Read the first time May 2, 1996.
A BILL
TO AMEND CHAPTER 57, TITLE 40, AS AMENDED, CODE
OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE
LICENSURE AND REGULATION OF REAL ESTATE
BROKERS, COUNSELORS, SALESMEN, APPRAISERS,
AUCTIONEERS, AND PROPERTY MANAGERS, SO AS TO
REVISE THE CHAPTER TO CONFORM TO A UNIFORM
FRAMEWORK FOR THE ORGANIZATION AND OPERATION
OF PROFESSIONAL AND OCCUPATIONAL BOARDS.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Chapter 57, Title 40 of the 1976 Code is amended
to read:
"CHAPTER 57
Real Estate Brokers, Counsellors,
Salesmen, Appraisers,
Auctioneers, and Property Managers
SECTION 40-57-10. As used in this chapter:
(1) `Broker' means any person who for a fee, commission, or
other valuable consideration, or with the intent or expectation of
receiving a fee, commission, or consideration, negotiates or attempts
to negotiate the listing, sale, auction, purchase, exchange, or lease
of any real estate or of the improvements thereon, or negotiates or
attempts to negotiate, or solicits or attempts to solicit, a referral
with respect to the foregoing activities, or collects rents or attempts
to collect rents, or who advertises or holds himself out as engaged
in any of the foregoing activities. The term includes the activity
provided in subsections (3) and (4) of this section. The term also
includes any person employed by or on behalf of the owner of real
estate to conduct the sale, auction, leasing, or other disposition
thereof at a salary or for a fee, commission, or any other
consideration. It also includes any person who engages in the
business of charging an advance fee or contracting for collection of
a fee in connection with any contract whereby he undertakes
primarily to promote the sale of real estate through its listing in a
publication issued primarily for such purpose or for referral of
information concerning the real estate to brokers, or both.
(2) `Broker-in-charge' means the broker who is designated as
having the responsibility over the actions of all brokers, salesmen,
and property managers licensed under him and also the
responsibility, control, and liability over any real estate trust or
escrow accounts.
(3) `Salesman' means any person employed or engaged under
contract by or on behalf of a licensed broker to participate in any
activity included in subsection (1) of this section for compensation
or otherwise. The term includes activity provided in subsection (4)
of this section.
(4) `Property manager' means any person who for a fee,
commission, or other valuable consideration, or with the intent or
expectation of receiving a fee, commission, or consideration,
negotiates, or attempts to negotiate the rental, exchange, or leasing
of any real estate or of the improvements thereon; or the listing of
exchanges, rentals, or leases; or collects rents or attempts to collect
rents; or who advertises or holds himself out as engaged in any of
the foregoing activities.
The term also includes any person who engages in the business
of charging an advance fee or contracting for collection of a fee in
connection with any contract whereby he undertakes to promote the
renting or leasing through its listing in a publication issued
primarily for this purpose, or for referral of information concerning
the rentals or leases.
An employee of the owner of rental property may perform the
following duties without securing a property manager license. Such
employee to be exempt from licensing is restricted as follows:
1. Must be an employee of the owner whose
compensation for services shall be on a salary basis and not on a
commission basis.
2. Employee may only exhibit a rental property to
prospective tenants, accept applications for leases, and furnish such
prospective tenants with information relative to the rental of such
units. The activities must be further restricted as follows:
(a) No binding contracts may be negotiated, drawn, or
signed by the employee.
(b) The employee may only accept and receipt for rental
payments or deposits that are made payable to the owner.
(c) The employee may not hold himself out as a property
manager.
(5) `Property manager-in-charge' means the property manager
who is designated as having the responsibility over the actions of all
property managers licensed under him and also the responsibility,
control, and liability over any real estate trust or escrow accounts.
(6) `Person' means individuals, corporations, partnerships, or
associations, foreign and domestic.
(7) `Real estate' means leaseholds, as well as any other
interest in land, whether corporeal, incorporeal, freehold, or
nonfreehold, and whether the real estate is situate in this State or
elsewhere.
SECTION 40-57-20. It is unlawful for any person to act as a
real estate broker, counsellor, real estate salesman, property
manager, or real estate auctioneer or to advertise or assume to act
as such without first having obtained a license issued by the Real
Estate Commission. Any person violating this provision is guilty of
a misdemeanor and, upon conviction, must be punished by a fine of
not more than five hundred dollars or by imprisonment for a term
of not more than six months, or both, in the discretion of the court.
SECTION 40-57-30. The provisions of this chapter do not apply
to any transaction involving the sale, rental, or leasing of real estate
by anyone who is the owner thereof or who owns any interest
therein, if the legal ownership interest in the real estate being sold,
rented, or leased is identical to the owner's legal interest, or to the
attorney at law of the owner acting within the scope of his duties.
Ownership of stock in a corporation is not ownership of an interest
in real estate owned by the corporation and does not exempt the
stockholder from the provisions of this chapter, unless the
stockholder owns or controls at least ten percent of the stock of the
corporation.
SECTION 40-57-40. The provisions of this chapter are
applicable only to those persons holding themselves out to the
public as real estate brokers, counsellors, auctioneers, real estate
salesmen, and property managers and shall not apply to agencies
and instrumentalities of the state or federal government nor to
employees of any lender or public officials making appraisals for
federal, state, and local units of the government.
SECTION 40-57-50. The legislative delegations, including the
Senators of the counties comprising each congressional district shall
select a person experienced in real estate transactions to serve on
the Real Estate Commission of South Carolina to establish the
policy, and to issue general rules and regulations in carrying out the
provisions of this chapter. The members of the commission shall
serve for terms of four years, or until their successors shall have
been selected and qualified. The members of the commission shall
select one member from the State at large, and shall elect a
chairman and vice-chairman from their membership. In addition to
the real estate members on the board effective July 1, 1978, two
persons not professionally engaged in the real estate business shall
be appointed to the board by the Governor, with the advice and
consent of the Senate. The terms of the public members shall be for
four years and until successors are appointed and qualify. The two
public members shall be appointed to assume office July 1, 1978.
SECTION 40-57-60. The Real Estate Commission shall receive
no salary, but shall be allowed such per diem, subsistence and
mileage as is authorized by law for members of boards and
commissions.
SECTION 40-57-70. In order to carry out the provisions of this
chapter, the Real Estate Commission shall retain such fees and other
funds as may come into its possession.
SECTION 40-57-80. The Director of the Department of Labor,
Licensing, and Regulation shall appoint any employees as may be
necessary to carry out the work of the Real Estate Commission and
the South Carolina Real Estate Appraisers Board defined in Section
40-60-20.
SECTION 40-57-90. Licenses as real estate broker, counsellor,
real estate salesman, auctioneer, or property manager must be
granted only to persons who submit satisfactory proof to the
commission that they are trustworthy and bear a good reputation for
honesty and fair dealing, and are competent to transact the business
of a real estate broker, counsellor, real estate salesman, auctioneer,
or property manager in that manner as to safeguard the interest of
the public. A person applying for a license or an examination shall
first submit to a credit report and satisfy requirements established
by regulation. A real estate salesman must be employed by a real
estate broker-in-charge in order to be licensed.
SECTION 40-57-100. (1) Any person desiring to act as a real
estate broker, counsellor, salesman, property manager, or auctioneer
shall file with the Real Estate Commission an application in writing
upon that form and with that detail as the South Carolina Real
Estate Commission prescribes, and each applicant shall first pass to
the satisfaction of the commission the examination prescribed,
unless he is exempt therefrom.
(2) Prerequisites for taking an examination for the broker's
license are a minimum of three years of actual experience
immediately preceding application as a licensed real estate salesman
in this State or in another state having similar requirements and
successful completion of at least ninety hours of instruction,
including time spent on examinations. The ninety hours include the
required sixty hours of instruction for a real estate salesman's
license in the basic fundamentals of real estate and other related
matters, all as specified by the Real Estate Commission and
conducted by:
(a) a university or duly accredited college wherever situated
if the credits were earned within five years prior to license
application. For purposes of computing required hours of
classroom instruction, one credit equals ten classroom hours; or
(b) a bona fide business school situated in this State and
approved by the commission; or
(c) an institution, organization, or association approved by the
commission; or
(d) correspondence where the course of instruction is part of
an extension department of an accredited college or university.
(3) In lieu of the above prerequisites for the taking of a broker's
license examination, an applicant may furnish to the commission
evidence of one of the following:
(a) a baccalaureate degree with a major in real estate from an
accredited college or university, or a Juris Doctor, or Bachelor of
Laws degree;
(b) proof acceptable to the commission of at least five years
of equivalent experience preceding license application in business
activities closely related to real estate transactions.
(4) Upon satisfactorily passing the broker's examination, the
applicant shall apply for his broker's license within ninety days
from the examination date. Failure to do so will result in the
applicant being required to reapply and be reexamined for his
broker's license.
(5) As a prerequisite to taking the first year real estate sales
examination, every applicant shall furnish evidence satisfactory to
the Real Estate Commission of successful completion of thirty
classroom hours of instruction in the fundamentals of real estate as
prescribed by subsection (2). Upon passing the first year real estate
sales examination, a first year real estate sales license must be
immediately issued.
(6) Within one year of passing the first year exam each
applicant shall satisfactorily complete an additional thirty hours of
instruction in order to qualify for the final sales examination. The
applicant also shall have held his first year real estate sales license
in an active status for no less than a total of twelve months prior to
taking the final sales examination and his license must be active at
the time of taking the examination. The final sales examination
must be taken not less than twelve nor more than fifteen months
following the first year examination. Failure to meet these
requirements will result in the cancellation of the first year sales
license.
(7) In lieu of the classroom hours required for a final sales
license, an applicant may furnish to the commission one of the
following:
(a) satisfactory evidence of at least three years' experience
within the past five years in real estate transactions acceptable to the
commission;
(b) evidence that he has successfully completed at least six
credit hours in real estate or real estate related subjects at an
accredited college or university;
(c) evidence of a Juris Doctor or Bachelor of Laws degree.
(8) As a prerequisite to taking the property manager's
examination, every applicant shall furnish evidence satisfactory to
the Real Estate Commission of successful completion of thirty
classroom hours of instruction in the fundamentals of real estate
property management, all as specified by the Real Estate
Commission and conducted by:
(a) a university or duly accredited college wherever situated,
if the credits were earned within five years prior to license
application. For purposes of computing required hours of classroom
instruction, one credit equals ten classroom hours; or
(b) a bona fide business school situated in this State and
approved by the commission; or
(c) an institution, organization, or association approved by the
commission; or
(d) correspondence where such course of instruction is part of
an extension department of an accredited college or university.
(9) In lieu of the above prerequisites for the taking of a
property manager's license examination, an applicant may furnish to
the commission evidence of one of the following:
(a) a baccalaureate degree with a major in real estate from an
accredited college or university, or a Juris Doctor, or Bachelor of
Laws degree;
(b) satisfactory evidence of at least three years' experience
within the past five years in business activities closely related to
real estate property management transactions.
SECTION 40-57-110. In addition to the proof of honesty,
integrity, truthfulness, and good reputation of an applicant for a
license, either real estate broker, counsellor, salesman, property
manager, or auctioneer, the applicant shall submit to a written
examination to be prepared and conducted by the commission or an
institution designated by the commission.
SECTION 40-57-115. (A) The commission, through its
regulations and guidelines, shall establish standards relative to the
establishment and conducting of all education courses required by
this chapter and the review, approval, or regulation of schools,
organizations, associations, institutions, or instructors offering these
courses including, but not limited to, sponsorship by accredited
colleges, universities, and private business entities and
organizations; establishment, approval, and review of curriculum;
instructors; hours of attendance; classroom facilities; enrollment and
cancellation policies; texts; examinations; certificates of completion;
and other operating procedures.
(B) The commission, by regulation, shall establish reasonable
fees relative to the review, approval, or regulation of schools,
organizations, associations, institutions, or instructors offering the
education courses required by this chapter.
(C) The commission may deny, reprimand, fine, suspend, or
revoke the approval of an instructor or school, organization,
association, institution, or other educational provider if, after a
hearing, the commission finds that the applicant, instructor, or
educational provider has violated or failed to satisfy the provisions
of this chapter or the regulations and guidelines established under
this chapter.
SECTION 40-57-120. The commission shall issue licenses for
three classifications: one for each real estate broker; one for each
real estate salesman; and one for each property manager. The
commission shall issue designated licenses within each classification
as necessary and as established by regulation. No person may be
licensed in more than one classification at any one time.
SECTION 40-57-130. This chapter shall not apply to 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
thereon.
SECTION 40-57-140. (A) A nonresident of this State may
become a real estate broker, real estate salesman, or property
manager upon complying with all the provisions and conditions of
this chapter. A person who is licensed as a real estate broker, real
estate salesman, or property manager in another state, territory of
the United States, or the District of Columbia shall submit a
certificate of licensure from the real estate regulatory authority from
the other jurisdictions at the time of filing an application for
examination and copies of the records of any disciplinary actions
taken against the applicant's license. In the application for
examination, all questions of equivalency of academic and
experience requirements of other states, territories, or the District of
Columbia must be determined by the commission and, at the
discretion of the commission, the nonresident applicant must
comply with additional requirements specified by the commission.
(B) The commission may enter into reciprocal agreements with
real estate regulatory authorities of other states which provide for
waivers of education requirements or examinations if the
commission considers the education and examination requirements
of another state to be substantially equivalent to the requirements of
this chapter and its regulations.
(C) A nonresident real estate salesman license may not be
granted to an applicant unless that applicant is affiliated with a
resident or nonresident broker licensed by the commission. If a
nonresident licensee terminates the affiliation with a broker licensed
by the commission, the license of the nonresident is canceled unless
he places the license on inactive status or affiliates with another
broker licensed by the commission.
(D) A nonresident is not required to maintain a place of business
in this State if he maintains an active place of business in the state
of domicile. Every nonresident applicant shall file an irrevocable
consent that suits and actions may be commenced against the
applicant in the proper court in a judicial circuit of the state in
which a cause of action may arise or in which the plaintiff may
reside, by the service of a process or pleading, authorized by the
laws of this State, on the chairman of the commission or any
authorized assistant or deputy appointed by the Director of the
Department of Labor, Licensing, and Regulation, the consent
stipulating and agreeing that the service of the process or pleading
must be taken and held in all courts to be as valid and binding as if
service had been made upon the applicant in the State of South
Carolina. If the process or pleadings mentioned in this chapter are
served upon the chairman of the commission or any authorized
assistant or deputy appointed by the Director of the Department of
Labor, Licensing, and Regulation, it must be by duplicate copies,
one of which must be filed in the office of the commission and the
other immediately forwarded by the commission by registered or
certified mail to the applicant against whom the process or
pleadings are directed, at the last known address of the applicant as
shown by the records of the commission.
(E)
(1) A resident licensee who becomes a nonresident, within
sixty days, must notify the commission in writing of the change in
residency and comply with nonresident requirements or place his
license on inactive status to avoid cancellation of his license.
(2) A nonresident licensee who becomes a resident of South
Carolina, within sixty days, must notify the commission in writing
of the change in residency and comply with the requirements of this
chapter or place his license on inactive status to avoid cancellation
of his license.
(3) Failure to notify the commission of the change in
residency and compliance with the requirements of this section is a
violation of the license law subject to the penalties as provided by
Section 40-57-170.
(F) All nonresident applicants and licensees must comply with
all requirements of commission regulations and of this chapter. The
commission may adopt regulations necessary for the regulation of
nonresident licensees.
SECTION 40-57-145. A nonresident holding a license on the
effective date of this act is not required to meet the prelicense
education and examination requirements of Sections 40-57-100 and
40-57-110 of the 1976 Code in order to continue to hold a license
after that date unless he allows the license to lapse or applies for a
license that requires passing a different qualifying examination.
SECTION 40-57-150. The Real Estate Commission is
authorized to establish license and application fees by regulation.
None of the license fees provided for is in lieu of any business
license fees or taxes imposed by a municipality. In addition to the
fees authorized by this section, the Commission is authorized to
contract with a state-funded institution of higher learning to conduct
examinations for the Commission and the institution is authorized to
charge and collect examination fees, not to exceed the reasonable
cost to conduct examinations, which must be retained by the
institution to defray the cost of conducting those examinations.
The Real Estate Commission may allocate a sum of up to five
dollars from each real estate broker's, salesman's, and property
manager's annual renewal fee to the South Carolina Real Estate
Commission Education and Research Fund to be used: (1) to carry
out the advancement of education and research for the benefit of
those licensed under the provisions of this chapter and for the
improvement and increased efficiency of the real estate industry in
this State; (2) to provide for the analysis and evaluation of factors
which affect the real estate industry in South Carolina; and (3) to
provide for the dissemination of the results of the research.
The funds collected from the fee authorized in the above
paragraph must be deposited in a special fund by the State
Treasurer to be used exclusively for the purposes provided in the
above paragraph. Withdrawals from the fund must be made upon
the written request of the South Carolina Real Estate Commission.
SECTION 40-57-155. (A) As a condition of license renewal, a
broker or sales agent must satisfactorily complete eight hours of
approved course instruction biennially as prescribed by the
commission by a course provider approved by the commission.
The eight hours must include a minimum of two hours of
instruction on changes in federal and state law affecting licensees.
A licensee having successfully completed a thirty-hour course for
qualification as a broker is not required to participate in the
continuing education program for that particular year. A licensee
who decides to become inactive is not required to participate in the
continuing education program but must complete the eight-hour
requirement before returning to active status.
(B) A licensee may receive continuing education credit for
courses taken under a continuing legal education program, provided
such courses relate directly to real estate law in South Carolina and
have been preapproved by the commission as meeting the criteria
for continuing real estate education. Credit for such courses is
subject to approval by the commission.
(C) The commission shall administer the continuing education
program and shall approve and regulate courses, instructors, and
course providers to implement the purposes of this section. In
administering the program, the commission may promulgate
regulations to require licensees to provide proof of compliance with
the continuing education requirements as a condition of license
renewal. The commission may contract with an outside provider
for the record keeping services required by this section.
(D) Temporary fees must be charged by and paid to the
commission until permanent fees are established by regulation as
follows:
(1) an annual filing fee of fifteen dollars;
(2) a fee of fifteen dollars for providing certification to
another state of a licensee meeting the South Carolina continuing
education requirement;
(3) a fee of one hundred dollars for each course approved;
(4) a fee of one hundred dollars for each instructor approved;
(5) a fee of fifty dollars for each course approval renewal;
(6) a fee of fifty dollars for each instructor approval renewal.
(E) The commission shall promulgate regulations prescribing the
overall parameters of the continuing education program.
(F) This section also applies to nonresident licensees. Where
applicable, a nonresident licensee who has successfully satisfied the
continuing education requirements of his resident state and certifies
this information to the continuing education administrator or service
is considered to have satisfied the requirements of this section. A
nonresident who lives in a state which does not require continuing
education must satisfy the South Carolina continuing education
requirements.
(G) All information received by an outside contract service
provider in the course and scope of his duties is confidential and
proprietary and may not be used or disclosed beyond the
requirements of the duties imposed upon them by law.
(H) A licensee upon reaching the age of sixty-five, with a
minimum of twenty-five years of licensure, is exempt from the
requirements of this section.
SECTION 40-57-160. It is the duty of the commission to issue
a license to engage in the business of real estate broker, counsellor,
salesman, property manager, or auctioneer to all applicants who are
duly qualified under, and who comply with, all requirements of this
chapter and all regulations of the commission. The license must be
in that form and size as the commission prescribes and must not be
transferable. The licenses expire annually.
SECTION 40-57-170. (A) The commission may upon its own
motion or a verified complaint together with evidence, documentary
or otherwise, presented in connection therewith, making out a prima
facie case, investigate the actions of any real estate broker,
counsellor, salesman, auctioneer, property manager, or any person
who has unlawfully assumed to act in either capacity within this
State and has the power to suspend, revoke, and cancel any license
issued under the provisions of this chapter and assess fines at any
time where the licensee has by material misrepresentation obtained
a license, or where the licensee is found by the commission to be
guilty of any of the following acts:
(1) making any substantial misrepresentation;
(2) making any false promises of a character likely to
influence, persuade, or induce;
(3) pursuing a continued and flagrant course of
misrepresentation, or making false promises through agents or
salesmen or any medium of advertising, or otherwise;
(4) any conduct in a real estate transaction which
demonstrates bad faith, dishonesty, untrustworthiness, or
incompetency in a manner as to endanger the interest of the public;
(5) acting for more than one party in a transaction without
the knowledge of all parties for whom he acts;
(6) acting in the dual capacity of broker and undisclosed
principal in any transaction;
(7) representing or attempting to represent, if a salesman, a
real estate broker other than his employer without the express
knowledge and consent of his employer;
(8) guaranteeing or authorizing or permitting any person to
guarantee future profits which may result from the resale of real
property;
(9) making of dual sets of contracts, written or otherwise,
which would falsify the transaction by stating a sales price higher
than the actual sales price in an effort to obtain a larger loan from
any lender or lending institution or for the purpose of misinforming
any governmental agency;
(10) being convicted in any court of competent jurisdiction of
this State, any other state, or any federal court 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;
(11) failing, within a reasonable time, to account for or to
remit any monies coming into his possession which belong to
others;
(12) paying a commission or compensation to any person for
performing the services of a real estate broker, salesman, or
property manager who has not first secured his license under the
South Carolina Real Estate Licensing Act. A South Carolina
licensed broker may pay a part of his commission on a cooperative
basis to a licensed broker of another state if the nonresident broker
does not conduct in this State any of the negotiations for which a
fee, compensation, or commission is paid;
(13) failing, if a broker, to place, within forty-eight hours of
receipt, excluding Saturdays, Sundays, and bank holidays, any
deposit money or other money received by him in a real estate
transaction in a separate real estate trust or escrow account
maintained by him in a banking institution authorized to do
business in this State, wherein the funds must be kept until the
transaction is consummated or otherwise terminated, at which time
a full accounting thereof must be made by the broker. Records
relative to the deposit, maintenance, and withdrawal of the funds
must be properly maintained and made available to a representative
of the South Carolina Real Estate Commission upon request;
(14) violating any provision of law relating to a buyer's
freedom of choice in choosing an attorney, insurance agent, or title
insurance agent to handle his real estate transaction;
(15) failing, if a broker or property manager, to deposit all
security deposits, damage deposits, advance fees, and rental
proceeds received by the broker or property manager within
forty-eight hours of receipt, excluding Saturdays, Sundays, and
bank holidays, in a separate escrow or real estate trust account so
designated. All these funds except rental proceeds shall remain until
the lease or rental transaction expires or is terminated, at which
time a full accounting must be made by the broker or property
manager. Rental proceeds must be disbursed within a reasonable
time after deposit and clearance of the deposit by the bank.
Records relative to the receipt, deposit, maintenance, and
withdrawal of the funds must be properly maintained and made
available to a representative of the South Carolina Real Estate
Commission upon request;
(16) failing, if a licensee, to report to the commission in
writing by certified mail, return receipt requested, within ten days
after receipt by the licensee of those convictions set forth in item
(10) of this subsection;
(17) a real estate licensee shall disclose on a form approved by
the commission for which party he is acting and may not receive
compensation from more than one party except with the full
knowledge and consent of all parties;
(18) violating any regulation promulgated by the commission.
(B)
(1) The commission may make any public or private
investigation which it considers necessary to determine whether any
person has violated this chapter or any order or regulation
hereunder, or to aid in the enforcement of this chapter or in the
prescribing of regulations and forms thereunder.
(2) The commission may require or permit any person to file
a statement in writing, under oath or otherwise as the commission
determines, as to all facts and circumstances concerning the matter
to be investigated.
(3) For the purpose of any investigation or proceeding under
this chapter, the commission or any officer designated by regulation
may administer oaths or affirmations, and upon its own motion or
upon request of any party shall subpoena witnesses, compel their
attendance, take evidence, and require the production of any matter
which is relevant to the investigation, including the existence,
description, nature, custody, condition, and location of any books,
documents, or other tangible things and the identity and location of
persons having knowledge of relevant facts or any other matter
reasonably calculated to lead to the discovery of material evidence.
(4) Upon failure to obey a subpoena or to answer questions
propounded by the investigating officer and upon reasonable notice
to all persons affected thereby, the commission, through the
Attorney General, may apply to an administrative law judge as
provided under Article 5 of Chapter 23 of Title 1 for an order
compelling compliance.
(C) The commission may:
(1) issue an order requiring a person to cease and desist from
any unlawful practice and to take such affirmative action as in the
judgment of the commission will carry out the purposes of this
chapter if, after notice and hearing, the commission determines that
a person has:
(a) violated any provisions of this chapter.
(b) directly or through any agent or employees knowingly
engaged in any false, deceptive, or misleading practices in the sale
or rental of real estate, including advertising and promotions.
(c) violated any lawful order or rule of the commission.
(2) make findings of fact in writing that the public interest
will be irreparably harmed by delay in issuing an order and in such
case may issue a temporary cease and desist order. Prior to issuing
the temporary cease and desist order, the commission, whenever
possible by telephone or otherwise, shall give notice of the proposal
to issue a cease and desist order to the person. Every temporary
cease and desist order shall include in its terms a provision that
upon request a hearing will be held promptly to determine whether
or not it becomes permanent.
SECTION 40-57-180. Before refusing, suspending, or revoking
any license and before issuing any public or private reprimand or
assessing any fines, the commission shall notify the applicant or
licensee of the charges against him and must grant him an
opportunity to be heard. The hearing must be held not less than
thirty days nor more than ninety days after the applicant or licensee
is notified of the charges against him. If charges are brought
against a salesman, his broker must also be notified of the charges.
Hearing of the charges must be at the time and place designated by
the commission and must be conducted in accordance with the State
Administrative Procedures Act. The hearing must be attended by at
least five members of the Real Estate Commission, including the
member from the congressional district in which the applicant or
licensee resides.
SECTION 40-57-190. The commission or any authorized
assistant or deputy appointed by the Director of the Department of
Labor, Licensing, and Regulation shall have power to administer
oaths and to issue subpoenas for the attendance of witnesses and the
production of books, records, accounts, and papers.
SECTION 40-57-200. The commission shall render a decision
on any complaint within sixty days from the final hearing on such
complaint and shall give immediate notice in writing of such ruling
or decision to the applicant or licensee affected thereby, and where
the investigation or hearing shall have been instituted by complaint
filed, to the party or parties by whom the complaint was made. If
such ruling shall be to the prejudice of, or shall injuriously affect
the licensee, the commission shall also state in such notice the date
upon which the ruling or decision shall become effective, and such
date shall be not less than thirty days after the date of the notice.
SECTION 40-57-210. The commission shall maintain a public
docket or other record, in which the commission shall record, from
time to time as made, the rulings or decisions upon all complaints
filed with the commission, and all investigations instituted by the
commission in the first instance, upon or in connection with which
any such hearing shall have been had, or in which the licensee
charged shall have made no defense.
SECTION 40-57-220. Every applicant or licensee aggrieved by
a decision of the commission in refusing, suspending, or revoking
any license or in issuing reprimands provided under the provisions
of this chapter may appeal from the decision of the commission to
an administrative law judge as provided under Article 5 of Chapter
23 of Title 1.
SECTION 40-57-230. After the revocation of any license, no
new license shall be issued to the same licensee, within a period of
one year from and after the date of such revocation, nor at any time
thereafter except upon an affirmative vote of at least a majority of
the members of the Commission.
SECTION 40-57-240. Any real estate broker, counsellor,
salesman, auctioneer, or property manager who fails to renew or
register his license annually and continues to engage in such
business is guilty of a misdemeanor and, upon conviction, must be
punished by a fine of not more than five hundred dollars or
imprisonment of not more than six months, or both, in the
discretion of the court.
SECTION 40-57-250. After a hearing as provided for in
Section 40-57-170, or after entering a plea of guilty in lieu of
hearing, a licensee adjudged to be in violation of the provisions of
Section 40-57-170 of this chapter, or of any regulation or order
promulgated under the authority of this chapter, may be required by
the Commission to pay a penalty of not less than twenty-five
dollars nor more than five hundred dollars to be assessed and
collected by the Commission in addition to such sanctions as set
forth in Section 40-57-170. Any party penalized under this
subsection has the right of review as provided for in Section
40-57-220.
SECTION 40-57-270. (A) The fact or suspicion that a
property may be or is psychologically impacted, as a result of facts
or suspicions that the death of an occupant of the real property has
occurred or may have occurred upon the real property, or the
manner of death where death has occurred, or that an occupant was
inflicted with or died from Human Immuno-deficiency Virus or
diagnosed with Acquired Immune Deficiency Syndrome, or any
other disease which has been determined by medical evidence to be
highly unlikely to be transmitted through the occupancy of a
dwelling place is not a material fact that must be disclosed in a real
estate transaction.
(B) No cause of action may arise against an owner of real estate
or his agent for the failure to disclose to the transferee that the
transferred property was psychologically impacted as described in
subsection (A) of this section.
(C) This section does not relieve an owner or agent of an
obligation to disclose the physical condition of the premises.
(D) Nothing in this section immunizes an owner or his agent
from making an intentional misrepresentation in response to a direct
inquiry from a transferee or a prospective transferee of real
property, concerning psychological impacts or stigmas associated
with real property.
SECTION 40-57-280. Notwithstanding any other provision of
law:
(1) All monies received by a property manager as agent for
his principal in a real estate transaction must be deposited within
forty-eight hours of receipt, excluding Saturdays, Sundays, and
bank holidays, in a separate escrow or real estate trust account so
designated.
(2) All monies received by a broker as agent for his principal
in a real estate transaction must be deposited in a separate escrow or
real estate trust account so designated as follows:
(a) all cash monies or certified funds must be deposited
within forty-eight hours of receipt, excluding Saturdays, Sundays,
and bank holidays;
(b) all other monies must be deposited within forty-eight
hours of receipt, excluding Saturdays, Sundays, and bank holidays.
(3) All monies received by a broker or property manager and
deposited in the escrow or real estate trust account as provided for
above must remain there until consummation or termination of the
transaction, at which time the broker or property manager shall
make a full accounting of it to his principal.
Section 40-57-10. There is created the South Carolina Real
Estate Commission under the administration of the Department of
Labor, Licensing and Regulation. The purpose of this commission
is to regulate the real estate industry so as to protect the public's
interest when involved in real estate transactions.
Section 40-57-20. It is unlawful for an individual to act as a
real estate broker, real estate salesman, real estate property manager,
or to advertise as such without a valid license issued by the
department.
Section 40-57-30. For purposes of this chapter:
(1) `Commission' means the group of individuals charged by
law with the responsibility of licensing or otherwise regulating real
estate within the State of South Carolina.
(2) `Department' means the Department of Labor, Licensing
and Regulation.
(3) `Licensee' means an individual currently licensed under
the provisions of this chapter.
(4) `Broker' means an individual who for a fee, salary,
commission, or other valuable consideration, or who with the intent
or expectation of receiving compensation:
(a) negotiates or attempts to negotiate the listing, sale,
purchase, exchange, lease, or other disposition of real estate or the
improvements thereon;
(b) auctions or offers to auction real estate;
(c) solicits a referral in order to conduct activities set forth
in this section;
(d) offers advisory services as a real estate consultant or
counsellor;
(e) offers to act as an agent representing a principal in a
real estate transaction;
(f) advertises or otherwise holds himself out to the public
as being engaged in any of the foregoing activities.
(5) `Broker-in-charge' means the broker who is designated as
having responsibility over the actions of all associated licensees and
also has the responsibility and control over and liability for any real
estate trust accounts.
(6) `Salesman' means a licensee associated with a
broker-in-charge who, for compensation, engages in or participates
in an activity included in item (4).
(7) `Property manager' means an individual who for a fee,
salary, commission, or other valuable consideration, or who with
the intent or expectation of receiving compensation:
(a) negotiates or attempts to negotiate the rental or leasing
of real estate or improvements thereon;
(b) lists or offers to list and provide services in connection
with the leasing or rental of real estate or improvements thereon;
(c) advertises or otherwise holds himself out to the public
as being engaged in any of the foregoing activities.
(8) `Property manager-in-charge' means the property manager
who is designated as having the responsibility over the actions of
associated property managers and also the responsibility and control
over and liability for real estate trust accounts.
(9) `Real estate' means land, buildings, and other
appurtenances, including all interests in land, whether corporeal,
incorporeal, freehold, or nonfreehold, whether the real estate is
situate in this State or out-of-state.
(10) `Real estate transaction' means an activity involving the
sale, purchase, exchange, or lease of real estate.
(11) `Trust account' means a properly designated bank account
established and maintained by a broker-in-charge or a property
manager-in-charge to safeguard funds belonging to parties to a real
estate transaction. As used in this chapter, `trust account' and
`escrow account' shall have the same meaning.
(12) `Office' means the principal office location where a
broker-in-charge or a property manager-in-charge is licensed to
conduct real estate business.
(13) `Branch office' means a suboffice of a company in which
full-service real estate activities are conducted and at which a
broker-in-charge or property manager-in-charge is licensed to
conduct real estate transactions.
(14) `Client' means a person with whom a licensee has
established an agency relationship.
(15) `Customer' means a person with whom a licensee has not
established an agency relationship.
(16) `Associated licensee' means a licensee who is affiliated
with a broker-in- charge or property manager-in-charge.
Section 40-57-40. (A) The South Carolina Real Estate
Commission consists of nine members of whom:
(1) Six members who are professionally engaged in the
practice of real estate, one elected from each of the six
congressional districts by the legislative delegation, including the
Senators, of the counties compromising each of the congressional
districts.
(2) Three members representing the public who are not
professionally engaged in the practice of real estate, each appointed
by the Governor with the advice and consent of the Senate.
(B) Except as provided in subsection (E), commission members
serve a term of four years and until their successors are appointed
and qualify. No member may serve more than two consecutive full
terms. A vacancy on the commission must be filled in the manner
of the original appointment for the remainder of the unexpired term.
(C) Before entering upon the discharge of the duties of the
office, a member shall take and file with the Secretary of State, or
other appropriate office charged with the duties of the Secretary of
State as its successor entity, in writing an oath to perform the duties
of the office as a member of the commission and to uphold the
constitutions of this State and the United States.
(D) A member may be removed from office in accordance with
Section 1-3-240.
(E) In order to establish terms which do not expire
simultaneously, those members elected under subsection (A)(1) to
fill seats which terms expire on June 30, 1996, shall serve for terms
which expire as follows: two members on June 30, 1998; two
members on June 30, 1999; and two members on June 30,
2000.
Section 40-57-50. The commission annually shall elect from
its total membership a chairman, vice-chairman, and other officers
the commission determines necessary. The commission may adopt
an official seal and shall adopt rules and procedures reasonably
necessary for the performance of its duties and the governance of
its operations and proceedings.
Section 40-57-60. The commission shall set general policy
with regard to the administering and enforcement of this chapter
and regulations promulgated under this chapter. Powers and duties
include, but are not limited to:
(1) determining the standards for qualifications and eligibility
of applicants for licensure;
(2) conducting disciplinary hearings on alleged violations of
this chapter and deciding disciplinary actions as provided in this
chapter for those found to be in violation;
(3) recommending changes in legislation and promulgating
regulations governing the real estate industry relative to the
protection of the safety and welfare of the public.
Section 40-57-65. The annual report must be made in
accordance with Section 40-1-50 (I).
Section 40-57-70. (A) Fees must be established in accordance
with Section 40-1-50(D). Current published fees are in effect until
such time as they may be revised by the board in accordance with
this section.
(B) For each active license and inactive license not renewed by
its expiration date, the department may assess a reinstatement
penalty of one hundred dollars per month for each month or part of
a month for a period not to exceed six months during which the
license may be reinstated.
(C) All application and license fees are payable to the
department in advance and must accompany an examination
application or a license application. Application fees are
nonrefundable.
(D) The department may allocate a sum of up to ten dollars
from each licensee's renewal fee to a South Carolina Real Estate
Commission Education and Research Fund. The funds collected
must be deposited in a special fund by the State Treasurer to be
used exclusively for:
(1) the advancement of education and research for the benefit
of those licensed under the provisions of this chapter and for the
improvement and increased efficiency of the real estate industry in
this State;
(2) the analysis and evaluation of factors which affect the real
estate industry in this State; and
(3) the dissemination of the results of the research.
Section 40-57-80. To be eligible for licensure as a broker,
salesman, or property manager, an applicant shall:
(A) have attained the age of twenty-one if applying for a license
as a broker, broker-in-charge, or property manager-in-charge.
(B) have attained the age of eighteen if applying for a license as
a salesman or property manager.
(C) submit to a credit report which indicates credit worthiness
satisfactory to the commission. If notified of unsatisfactory credit,
the applicant shall have sixty days to respond.
(D) be a high school graduate or hold a certificate of
equivalency.
(E) submit proof of completion of education and, where
applicable, experience requirements as specified in this chapter.
(F) pass the appropriate examination unless exempt.
Section 40-57-90. An application for examination or licensure
must be made in writing on a form prescribed by the department
and accompanied by all applicable fees.
Section 40-57-100. (A) As a condition for and before applying
to take a license examination, an applicant for a salesman, broker,
or property manager license shall provide proof of having met the
following educational requirements which are valid for five years:
(1) For a salesman's license, completion of thirty hours of
classroom instruction in fundamentals of real estate principles and
practices. Within one year following licensure, a salesman shall
provide proof of satisfactory completion of thirty hours of post-licensing instruction in advanced real estate principles and practices.
Failure to complete the post-licensing education within one year
will result in cancellation of the license. In lieu of classroom hours
required for taking the salesman's license examination, an applicant
may furnish to the department evidence of a Juris Doctor, Bachelor
of Laws degree, or a baccalaureate degree with a major in real
estate from an accredited college or university, or the Commission
may, at its discretion, accept proof of at least five years of
equivalent experience immediately preceding license application in
business activities closely related to real estate transactions;
(2) For a broker's license, completion of ninety hours,
including the sixty hours completed for salesman's license, of
classroom instruction in advanced real estate principles and
practices and related topics plus three years of experience as a
licensee. In lieu of the experience and classroom hours required for
taking the broker's license examination, an applicant may furnish to
the department evidence of a Juris Doctor, Bachelor of Laws
degree, or a baccalaureate degree with a major in real estate from
an accredited college or university, or the Commission may, at its
discretion, accept proof of at least five years of equivalent
experience immediately preceding license application in business
activities closely related to real estate transactions;
(3) For a property manager's license, completion
of thirty hours of classroom instruction in property management
principles and practices. In lieu of the classroom instruction
required for taking the property manager's examination, an
applicant may furnish to the department evidence of a Juris Doctor,
Bachelor of Laws degree, or a baccalaureate degree with a major in
real estate from an accredited college or university.
(B) In order to determine competency and as a condition for
licensure applicants shall submit to appropriate examinations which
must be conducted by the department or a designated test provider
at times and places specified by the department.
(1) An individual who currently holds a real estate license in
another state or jurisdiction or whose real estate license in another
state or jurisdiction expired not more than six months prior to
application will be required to pass only the state portion of the
examination to qualify for licensure.
(2) To become eligible for issuance of a license, an applicant
must receive a passing grade on the examination, in accordance
with a cut-score determination conducted by the department.
(3) An applicant who fails an examination may be
reexamined within the three-month period following initial
examination. Should an applicant pass one part of a two-part
examination and fail the other, the applicant may be reexamined
and pass the failed portion within the succeeding three-month
period.
(4) Applicants who pass the examination shall apply for a
license within one year or be required to apply for and retake the
examination.
(5) The department or test provider is authorized to collect
and retain reasonable examination fees. Applicants for the
examination by a test provider will pay the fee directly to test
provider.
Section 40-57-110. (A) The department shall issue a license in
classifications of broker, salesman, or property manager to
individuals who apply and who qualify under and comply with the
requirements of this chapter. No individual may be licensed in more
than one classification at the same time. The license must be in the
form and size as the department prescribes and is not transferable.
(B) The department may issue a designated broker-in-charge
license to a broker or one qualified to be licensed as a broker and
may issue a designated property manager-in-charge license to a
licensed property manager or one qualified to be licensed as a
property manager upon application on a form prescribed by the
department and accompanied by applicable fees; however, no
broker-in-charge or property manager-in-charge license shall be
issued to or renewed for an applicant unless the applicant:
(1) has an ownership interest in the applicant's company; or
(2) is actively engaged in the operation and management of
the company.
(C) Applicants must also submit to a credit report indicating
credit worthiness satisfactory to the department. If notified of
unsatisfactory credit, the applicant shall have sixty days to respond.
(D) Individuals may not practice real estate until they receive a
license issued by the department.
(E) Individuals holding an active broker or salesman license
must be licensed under a broker-in-charge who is licensed by the
department and may not be licensed during the same period with
more than one broker-in-charge. When a licensee becomes
disassociated with a broker-in-charge for any reason, the
broker-in-charge shall notify immediately the department by letter
and furnish a forwarding address.
(F) Individuals holding an active property manager license must
be licensed under a property manager-in-charge or broker-in-charge
who is licensed by the department or be designated as a property
manager-in-charge. A property manager may not be licensed during
the same period with more than one property manager-in-charge or
broker-in-charge. When a licensee becomes disassociated with a
broker-in-charge or property manager-in-charge for any reason, the
broker-in-charge or property manager-in-charge shall notify
immediately the department by letter and furnish a forwarding
address.
(G) After revocation of a license, a new license may not be
issued to the same individual within a period of one year from the
date of revocation, or at any time thereafter except upon an
affirmative vote of a majority of the members of the commission.
A person seeking licensure after revocation shall:
(1) submit to the commission satisfactory proof that the
person is trustworthy, has a good reputation for honesty and fair
dealing, and is competent to transact the business of a real estate
licensee;
(2) submit proof of educational qualifications as set forth in
this chapter if the proof of educational qualifications on file is more
than five years old;
(3) pass the applicable examination; and
(4) meet any other qualifications and conditions which apply
to individuals applying for a license and who have never been
licensed.
(H) A licensee may place a license on inactive status by
informing the department in writing. To maintain an inactive status
of the license, the license must be renewed in the same manner as
provided for active license renewals. Upon proper compliance with
the renewal requirements, a license may remain on inactive status
for an indefinite period of time. Individuals seeking to reactivate a
license shall apply for the same license classification which was
placed on inactive status, pay the appropriate fee, and meet the
continuing education requirements as prescribed.
(I) Licenses must be renewed in accordance with Section
40-1-50(E). It is the licensee's responsibility to renew the license
whether or not notice is received.
(J) A license which has not been renewed by its date of
expiration is lapsed and may be reinstated within six months
following expiration upon payment of applicable fees plus penalties.
(K) A license which has lapsed and has not been reinstated by
the last day of the sixth month following expiration must be
canceled.
Section 40-57-120. (A) The commission may enter into
reciprocal agreements with real estate regulatory authorities of other
jurisdictions which provide for waivers of education requirements or
examinations if the commission considers the education and
examination requirements of another jurisdiction to be substantially
equivalent to the requirements of this chapter.
(B) An individual applying for a license by reciprocity shall
submit an application, license fee, and certification of licensure
from the real estate regulatory authority of the jurisdiction where
the current or previous license was held. In addition, copies must
be provided of the records of any disciplinary actions taken against
the applicant's license. The commission, at its discretion, may
impose additional requirements with which an applicant shall
comply.
(C) A nonresident real estate salesman license may not be
granted to an applicant unless that applicant is affiliated with a
resident or nonresident broker licensed by the commission. If a
nonresident licensee terminates the affiliation with a broker licensed
by the commission, the license of the nonresident is canceled unless
the licensee places the license on inactive status or affiliates with
another broker licensed by the commission.
(D) A nonresident is not required to maintain a place of business
in this State if he maintains an active place of business in the state
of domicile. Every nonresident applicant shall file an irrevocable
consent that suits and actions may be commenced against the
applicant in the proper court in a judicial circuit of the state in
which a cause of action may arise or in which the plaintiff may
reside, by the service of a process or pleading, authorized by the
laws of this State, on the chairman of the commission or any
authorized assistant or deputy appointed by the Director of the
Department of Labor, Licensing and Regulation, the consent
stipulating and agreeing that the service of the process or pleading
must be taken and held in all courts to be as valid and binding as if
service had been made upon the applicant in South Carolina. If the
process or pleadings mentioned in this chapter are served upon the
chairman of the commission or any authorized assistant or deputy
appointed by the Director of the Department of Labor, Licensing
and Regulation, it must be by duplicate copies, one of which must
be filed in the office of the commission and the other immediately
forwarded by the commission by registered or certified mail to the
applicant against whom the process or pleadings are directed, at the
last known address of the applicant as shown by the records of the
commission.
(E) (1) A resident licensee who becomes a nonresident, within
sixty days, shall notify the commission in writing of the change in
residency and comply with nonresident requirements or place his
license on inactive status to avoid cancellation of the license.
(2) A nonresident licensee who becomes a resident of South
Carolina, within sixty days must notify the commission in writing
of the change in residency and comply with the requirements of this
chapter or place his license on inactive status to avoid cancellation
of the license.
(3) Failure to notify the commission of the change in
residency and compliance with the requirements of this section are
violations of the license law subject to the penalties as provided by
Section 40-57-170.
(F) All nonresident applicants and licensees must comply with
all requirements of commission regulations and of this chapter. The
commission may adopt regulations necessary for the regulation of
nonresident licensees.
Section 40-57-130. (A) As a condition of
active license renewal, a broker or salesman shall provide proof of
satisfactory completion biennially of eight hours of instruction in
courses approved by the department and taught by instructors
approved by the department. The eight hours shall include a
minimum of two hours of instruction in current federal and state
law affecting brokers and salesmen.
(B) The following are exempt from the mandatory
continuing education program:
(1) a broker or salesman who successfully
completes a thirty-hour post-licensing course or a licensee who
successfully completes the thirty-hour course for qualification as a
broker;
(2) a broker or salesman while on inactive status;
however, the eight-hour requirement must be completed and proof
submitted with an application to return to active status;
(3) instructors of approved courses if they request
in writing continuing education credit for time spent teaching or
developing approved continuing education courses;
(4) a nonresident broker or salesman who has
successfully satisfied the continuing education requirements of the
jurisdiction of residence;
(5) a broker or salesman upon reaching the age of
sixty years with a minimum of twenty-five years of licensure.
(C) Brokers or salesmen taking more than the
required number of hours during a two-year period may not carry
forward any excess hours to another renewal period.
(D) A broker or salesman who fails to complete
continuing education requirements by the date of license renewal
may renew by applying applicable fees, but must immediately be
placed on inactive status and may not engage in the practice of real
estate while on inactive status. The license may be reactivated upon
proof of completion of required continuing education and payment
of applicable fees.
Section 40-57-135. (A) The duties of the broker-in-charge
or property manager-in-charge are to:
(1) adequately supervise employees or associated licensees
and maintain real estate trust accounts;
(2) review and approve all forms of listing agreements,
agency agreements, offers, sale contracts, purchase contracts, leases,
options, contract addenda, or other routinely used contractual
documents;
(3) maintain adequate, reasonable, and regular contact with
associated licensees engaged in real estate transactions so as to
prevent or curtail practices by a licensee which would violate any
provision of Title 40, Chapters 1 and 57, the Interstate Land Sales
Practices Act, or the Vacation Time Sharing Plans Act;
(4) instruct employees and associated licensees on the proper
handling of trust funds;
(5) be available to the public during normal business hours in
order to discuss or resolve complaints and disputes which arise
during the course of real estate transactions in which the
broker-in-charge or property manager-in-charge or an associated
licensee is involved;
(6) ensure that accurate and complete records, as described in
this chapter, are maintained for real estate trust accounts;
(7) ensure that backup copies are maintained for
computerized real estate trust accounts. Backup copies must be
maintained on a data storage medium which is separate from the
medium which contains the source documents;
(8) establish and maintain a written office policy in
accordance with Section 40-57-138(B).
(B) (1) The broker-in-charge or property manager-in-charge
shall establish and maintain an active real estate trust account so
designated in the name for which the respective broker-in-charge's
or property manager-in-charge's license is issued. Notwithstanding
the foregoing provision, the brokers-in-charge or property
managers-in-charge of a real estate company with multiple offices
may utilize one central trust account.
(2) All monies received by a property manager as agent for
his principal in a real estate transaction must be deposited in a
separate real estate trust account so designated within forty-eight
hours of receipt, excluding Saturdays, Sundays and bank holidays;
except that rent monies received by a licensee who is also directly
employed by the owner of rental property may be placed in an
operating or other similar account, but otherwise must be properly
accounted for as provided for in this section.
(3) All monies received by a property manager-in-charge in
connection with a real estate rental including, but not limited to,
security deposits, pet deposits, damage deposits, and advance rentals
(except earned rental proceeds) shall remain in the trust account
until the lease or rental transaction expires or is terminated, at
which time the monies must be disbursed in accordance with the
contract which directs the property manager-in-charge to hold the
monies, and a full accounting must be made to the landlord or
tenant as appropriate. Earned rental proceeds must be disbursed to
the landlord within a reasonable time after clearance of the deposit
by the bank.
(4) All monies received by a broker-in-charge as agent for a
principal in a real estate sales or exchange transaction must be
deposited as follows in a separate real estate trust account so
designated:
(a) Cash monies or certified funds must be deposited
within forty-eight hours of receipt, excluding Saturdays, Sundays,
and bank holidays.
(b) Checks must be deposited within forty-eight hours,
excluding Saturday, Sunday, and bank holidays, after acceptance of
an offer by the parties to the transaction.
(c) All monies received by a broker-in-charge in
connection with a real estate sales or exchange transaction and
deposited in the real estate trust account shall remain in the trust
account until consummation or termination of the transaction, at
which time the monies shall be disbursed in accordance with the
contract which directs the broker-in-charge to hold the monies, and
a full accounting must be made to the principal.
(5) In the event a dispute arises between buyer and seller
concerning the entitlement to and disposition of an earnest money
deposit, and the dispute is not resolved by reasonable interpretation
of the contract by the parties to the contract, the deposit must be
held in the trust account until the dispute is resolved by:
(a) a written agreement which directs the disposition of
monies and is signed by all parties claiming an interest in the trust
monies. The agreement must be separate from the contract which
directs the broker-in-charge or property manager-in-charge to hold
the monies;
(b) filing of an interpleader action in a court of competent
jurisdiction;
(c) order of a court of competent jurisdiction;
(d) voluntary mediation.
(6) All trust accounts maintained by brokers-in-charge or
property managers-in-charge must be located in an insured financial
institution authorized to conduct business in South Carolina.
(7) A broker-in-charge or property manager-in-charge shall
also maintain, in his designated principal place of business, a
recordkeeping system consisting of:
(a) for real estate sales, a journal or an accounting system
which records the chronological sequence in which funds are
received and disbursed. For funds received, the journal or
accounting system shall include the date of receipt, the name of the
party from whom the money was received, the name of the
principal, identification of the property, the date of deposit and
depository, the payee, the check numbers, dates, and amounts. A
running balance must be maintained for each entry of a receipt or
disbursement. The journal or accounting system shall provide a
means of reconciling the accounts;
(b) For property management, a journal or an accounting
system containing the same information as stated in item (a) except
that the required running balance may be determined at the time of
reconciliation;
(c) When managing property, a separate record for each
tenant must be maintained which shall identify the unit, the unit
owner, amount of rent, due date, security deposit, and all receipts
with dates. There also must be maintained an owner's ledger for all
properties owned by each owner showing receipts and
disbursements applicable to each property managed. All
disbursements must be documented by bids, contracts, invoices, or
other appropriate written memoranda;
(d) unless other appropriate written memoranda are
maintained, trust account deposit documents shall identify the
broker-in-charge or property manager-in-charge and the buyer or
tenant;
(e) A general ledger identifying security deposits;
(f) A monthly reconciliation of each separate account
except where there has been no deposit or disbursement during that
month. The reconciliation shall include a written worksheet
comparing the reconciled bank balance with the journal balance and
with the ledger total to ensure agreement.
(8) All monies received by a licensee in connection with a
real estate transaction in which the licensee is engaged for his
broker-in-charge or property manager-in-charge must be
immediately delivered to the broker-in-charge or property
manager-in-charge.
(9) A broker-in-charge or property manager-in-charge may
not commingle monies or other property of the principal with the
broker-in charge or property manager-in-charge's own money or
property, except that a broker-in-charge or property
manager-in-charge may maintain a clearly identified amount of his
own funds in the trust account to cover bank service charges in
order to avoid the closing of the account when no client's monies
are on deposit.
(10) Monies received by a broker-in-charge or property
manager-in-charge which must be deposited in a trust account may
be deposited in an interest-bearing account. Interest earned on these
monies may be retained by the broker-in-charge or property
manager-in-charge only if:
(a) a person remitting the monies to the broker-in-charge
or property manager-in-charge has been informed of the person's
right to ownership of the interest but relinquishes the right of
ownership by written agreement; and
(b) if part of a preprinted form, the written agreement must
be conspicuous and must require initials indicating an affirmative or
negative response.
(11) Records required by this chapter shall be held for a
minimum of five years and the broker-in-charge or property
manager-in-charge shall furnish a copy of the records to a
representative of the department upon request. Accounting records
to be requested shall include, but are not limited to, journals,
ledgers, folios, client subaccounts, tenant accounts, canceled checks,
deposit slips, and bank statements.
(C) A licensed broker-in-charge or property manager-in-charge
shall establish and maintain a specific office location which shall be
accessible by the public during reasonable business hours.
(1) A broker-in-charge or property manager in-charge, in
addition to the principal office location, may maintain one or more
branch offices under the same company name at a different
location. Each branch office must be managed by a
broker-in-charge or property manager-in-charge who shall comply
with the requirements of subsection (A).
(2) A licensee may not conduct real estate business under any
other name or at any address other than the one for which his
license is issued. The broker-in-charge or property
manager-in-charge shall notify the department by mail within ten
days of any change of office name and/or address and enclose
appropriate fees.
(3) In the event of the death or medical incapacitation of a
broker-in-charge or property manager-in-charge which precludes
him from dispatching duties as provided in this chapter, the
department may, at its discretion, permit an associated licensee to
act as broker-in-charge or property manager-in-charge for no more
than six months.
(4) A licensee may not advertise or offer to conduct a real
estate transaction involving real estate owned in whole or in part by
another person without first obtaining a written agency agreement
and when advertising real estate in any medium including site
signage, a licensee shall clearly identify the company with which
the licensee is affiliated.
(5) When operating under a trade or franchise name, a
licensee shall reveal clearly the identity of the franchisee or holder
of the trade name.
(6) A licensee clearly shall reveal his licensed status in a
transaction involving the purchase, sale, exchange, rental, lease, or
auction of real estate. This disclosure must be made before a
person's material reliance upon the licensee which may be
influenced by the representations of the licensee.
(7) Every broker-in-charge or property manager-in-charge
shall maintain for a minimum of five years and shall furnish to the
department upon request a written copy of a:
(a) lease;
(b) contract of sale;
(c) listing contract or agency agreement;
(d) option contract;
(e) management agreement;
(f) agency disclosure form;
(g) closing statement;
(h) policy on agency representation;
(i) fair housing policy.
(8) The department may, at its discretion, license the same
person as broker-in-charge or property manager-in-charge of more
than one company or branch office if the broker-in-charge or
property manager-in-charge making the request acknowledges in
writing that he understands the duties and can fully assume the
responsibility to ensure full compliance with this chapter by each
office and the associated licensees.
(D) No licensee shall either directly or indirectly buy for his
own account or for a corporation or any other business in which he
holds an interest or for a close relative, real estate listed with him
or real estate for which he has been approached by the seller or
prospective buyer to act as agent, without first making his true
position clearly known in writing to all parties involved. Upon
request of the department, the licensee shall provide clear evidence
of having made this disclosure.
(1) With regard to offers to purchase real estate, a licensee
shall:
(a) upon receipt, prepare all offers in writing and promptly
present them to the seller;
(b) upon obtaining a written acceptance of an offer,
promptly deliver true, executed copies to all parties;
(c) ensure that all of the terms and conditions of the
transaction are included in the offer to purchase;
(d) ensure that changes or modifications made during
negotiation are in writing and initialed and dated by both parties
before proceeding with the transaction.
(2) Every licensee shall ensure that, at closing, both the buyer
and the seller in a real estate transaction receive a complete and
detailed closing statement properly accounting for all funds paid,
received, and expended in connection with the transaction.
(3) A licensee may not allow or create an unreasonable delay
in the closing of a transaction or act in a manner which causes
failure or termination of a transaction due solely to a dispute among
participating licensees concerning the division of a commission.
(4) Any listing or buyers representation agreement that a
licensee may enter into shall set forth all material terms of the
parties' agency relationship including, but not limited to:
(a) a description of the agent's duties or services to be
performed for the principal;
(b) the amount of compensation to be paid or the method
to be used in calculating the amount of compensation to be paid;
(c) an explanation of how and when the agent earns his
compensation;
(d) an explanation of how compensation will be divided
among participating or cooperating brokers, if applicable;
(e) the amount of retainer fees, deposits, or any other
money which is collected before the agent's performance of any
services on behalf of the principal and an explanation of whether or
not, and if so, under what conditions such monies are refundable or
payable to or on behalf of the principal;
(f) the duration of the agency relationship, setting forth
specific dates for the beginning and ending of the relationship;
(g) the signature of all parties.
(5) In addition to the above requirements, a listing agreement
shall:
(a) state the price of the listed property;
(b) not contain a provision requiring a party signing the
listing to notify the licensee of his intention to cancel the listing
after the definite expiration date;
(c) be clearly defined if intended to be either an `exclusive
agency' listing or `exclusive right to sell' listing;
(d) clearly specify any exception or variation in amount of
commission to be paid and circumstances which would apply;
(e) be given to the owner at the time of, or directly
following, signing.
(E) The management of each multi-unit rental location must be
provided by a licensee.
(1) The department at its discretion may permit multiple
multi-unit rental property locations to be managed by one licensee.
(2) An unlicensed employee of the owner of a multi-unit
rental property or an unlicensed individual who works under the
supervision of a licensee is permitted to perform only the following
duties:
(a) maintenance;
(b) clerical or administrative support;
(c) collection of rents which are made payable to the
owner or real estate company;
(d) showing rental units to prospective tenants;
(e) furnishing published information;
(f) providing applications and lease forms;
(g) receiving applications and leases for submission to the
owner or the licensee for approval.
(4) An unlicensed employee of the owner or an unlicensed
individual working under the supervision of a licensee may not:
(a) negotiate binding contracts;
(b) vary or deviate from the rental price or other terms and
conditions previously established by the owner or licensee when
supplying relevant information concerning the rental of property;
(c) approve applications or leases or settle or arrange the
terms and conditions of a lease;
(d) indicate to the public that the unlicensed individual is
in a position of authority which has the managerial responsibility of
the rental property.
(5) Licensees who manage property shall do so under a
written management agreement which shall set forth, at a minimum,
the following conditions:
(a) names and signatures of authorized parties to the
agreement;
(b) property identification;
(c) method of compensation to the licensee;
(d) term, including definite expiration date;
(e) terms and conditions of tenant rental or lease
arrangements.
Section 40-57-138. (A) A real estate brokerage company that
provides services through an agency agreement for a client is bound
by the duties of loyalty, obedience, disclosure, confidentiality,
reasonable care, diligence, and accounting as set forth in this
chapter. The following are the permissible agency relationships a
licensee may establish:
(1) seller agency;
(2) buyer agency;
(3) disclosed dual agency; or
(4) subagency.
(B) The broker-in-charge of a real estate brokerage company
shall adopt a written company policy that identifies and describes
the types of real estate brokerage agency relationships in which
associated licensees may engage. The written policy shall include:
(1) the company's policy regarding cooperation with
subagents or buyer agents, or both, and whether the broker offers
compensation to these agents;
(2) the scope of services provided to the company's clients;
(3) the scope of services provided to the company's
customers;
(4) when and how associated licensees shall explain and
disclose their agency relationships with any interested parties to a
potential transaction; the explanation and disclosure shall always
comply with the minimum requirements set forth in this chapter;
(5) when and how an associated licensee shall explain to
clients the potential for the licensee to later act as a disclosed dual
agent in specific transactions, as permitted by this chapter;
(6) the company's policy on compliance with state and
federal fair housing laws.
(C) On reaching a written agreement to provide brokerage
services for a seller of real estate, a seller's agent shall:
(1) perform the terms of the written brokerage agreement
made with the seller;
(2) in accordance with subsection (A) above, promote the
interest of the seller by performing agency duties which include:
(a) seeking a sale at the price and terms stated in the
brokerage agreement or at a price and terms acceptable to the seller,
except that the licensee is not obligated to seek additional offers to
purchase unless the brokerage agreement provides otherwise while
the property is subject to a contract of sale;
(b) presenting in a timely manner all offers and
counteroffers to and from the seller, even when the property is
subject to a contract of sale;
(c) disclosing to the seller all relevant facts concerning the
transaction which are actually known to the licensee or, if acting in
a reasonable manner, should have been known to the licensee,
except as directed otherwise in this section;
(d) advising the seller to obtain expert advice on matters
that are beyond the expertise of the licensee;
(e) accounting in a timely manner, as required by this
chapter, for all money and property received in which the seller has
or may have an interest;
(3) exercise reasonable skill and care in discharging the
licensee's agency duties;
(4) comply with all provisions of this chapter and with any
regulations adopted by the department;
(5) comply with all applicable federal, state, or local laws,
rules, regulations, ordinances related to real estate brokerage,
including laws which relate to fair housing and civil rights;
(6) preserve confidential information provided by the seller
during the course of and following the agency relationship that
might have a negative impact on the seller's real estate activity
unless:
(a) the seller to whom the confidential information pertains
grants consent to disclose the information; or
(b) disclosure is required by law; or
(c) disclosure is necessary to defend the licensee against an
accusation of wrongful conduct in a proceeding before the
commission or before a professional association or professional
standards committee.
No cause of action shall arise against a licensee for disclosing
confidential information in compliance with subsection (C)(6)(a),
(b) or (c).
(D) A licensee acting as a seller's agent may offer alternative
properties to prospective buyers. A licensee acting as a seller's
agent may also list for sale competing properties.
(E) A licensee acting as a seller's agent may not offer a
subagency relationship to other brokers or offer to compensate
another broker who represents a buyer without the knowledge and
consent of the seller client.
(F) A licensee who represents a seller shall treat all prospective
buyers honestly and may not knowingly give them false or
misleading information about the condition of the property which is
known to the licensee or, when acting in a reasonable manner,
should have been known to the licensee. A seller's agent is not
obligated to discover latent defects in property or to advise the
agent's clients on matters outside the scope of the agent's real estate
expertise. A seller's agent, the company, and the broker-in-charge
are not liable to a buyer for providing the buyer with false or
misleading information if that information was provided to the
licensee by his client and the licensee did not know or have
reasonable cause to suspect the information was false or incomplete.
(G) Nothing in this chapter shall limit the obligation of the
buyer to inspect the physical condition of the property which the
buyer may purchase.
(H) On reaching a written agreement to provide brokerage
services to a potential buyer of real estate, a buyer's agent shall:
(1) perform the terms of the written brokerage agreement
made with the buyer;
(2) in accordance with subsection (A) above, promote the
interest of the buyer by performing the buyer's agent's duties which
include:
(a) seeking property at the price and terms stated in the
brokerage agreement or at a price and terms acceptable to the
buyer, except that the licensee is not obligated to seek additional
properties unless the brokerage agreement provides otherwise for a
buyer once the buyer becomes a party to a contract of sale;
(b) presenting in a timely manner all offers and
counteroffers to and from the buyer;
(c) disclosing to the buyer all relevant facts concerning the
transaction which are actually known to the licensee or, if acting in
a reasonable manner, should have been known to the licensee,
except as directed otherwise in this section. Nothing in this chapter
shall limit a buyer's obligation to inspect the physical condition of
the property which the buyer may purchase;
(d) advising the buyer to obtain expert advice on material
matters that are beyond the expertise of the licensee;
(e) accounting in a timely manner, as required by this
chapter, for all money and property received in which the buyer has
or may have an interest;
(3) exercise reasonable skill and care in discharging the
buyer's agent's agency duties;
(4) comply with all provisions of this chapter and with any
regulations promulgated by the department;
(5) comply with all applicable federal, state, or local laws,
rules, regulations, and ordinances related to real estate brokerage,
including laws which relate to fair housing and civil rights;
(6) preserve confidential information provided by the buyer
during the course of or following the agency relationship that might
have a negative impact on the buyer's real estate activity unless:
(a) the buyer to whom the confidential information
pertains, grants consent to disclose the information; or
(b) disclosure is required by law; or
(c) disclosure is necessary to defend the licensee against an
accusation of wrongful conduct in a proceeding before the
commission or before a professional association or professional
standards committee.
No cause of action shall arise against a licensee for disclosing
confidential information in compliance with subsections (H)(6)(a),
(b) or (c).
(I) A licensee acting as a buyer's agent may offer properties
which interest his buyer client to other potential buyers.
(J) A licensee acting as a buyer's agent may not offer a
subagency relationship to other brokers or offer to compensate
another broker who represents a seller without the knowledge and
consent of the buyer client.
(K) A licensee who represents a buyer shall treat all prospective
sellers honestly and may not knowingly give them false or
misleading information about the buyer's ability to perform the
terms of a transaction. A buyer's agent is not obligated to discover
latent defects in property or to advise his clients on matters outside
the scope of his real estate expertise. A buyer's agent, his company,
and the broker-in-charge are not liable to a seller for providing the
seller with false or misleading information if that information was
provided to the licensee by his client and the licensee did not know
or have reasonable cause to suspect the information was false or
incomplete.
(L) A licensee who represents one party to a real estate
transaction may provide assistance to other parties to the transaction
by performing ministerial acts such as writing and conveying offers,
and providing information and aid concerning other professional
services not related to the real estate brokerage services being
performed for a client. Performing ministerial acts does not create
an agency relationship.
(M) A licensee may act as a disclosed dual agent only with the
prior informed and written consent of all parties. Consent is
presumed to be informed if a party signs a completed copy of the
agency disclosure form prescribed by the commission. The form
shall specify the transaction in which a licensee shall serve as dual
agent and shall state:
(1) that in acting as a dual agent, a licensee represents clients
whose interest may be adverse and that agency duties are limited;
(2) that the dual agent may disclose any information gained
from one party to another party if the information is relevant to the
transaction, except if the information concerns:
(a) the willingness or ability of a seller to accept less than
the asking price;
(b) the willingness or ability of a buyer to pay more than
an offered price;
(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.
(C) A licensee who becomes a buyer's agent shall provide a
completed agency disclosure form to the buyer at the time an
agency agreement is 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 knowledge and written consent of the
employing broker-in-charge or property manager-in-charge;
(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;
(20) violates any provision of this chapter or a regulation
promulgated by this chapter;
(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 certified copy of the service on the
director must be mailed to the licensee at his last known address,
return receipt requested. The director shall keep a record of the day
of the service of the notice and the return receipt must be attached
to and made part of the return of service of the notice by the
commission.
(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.
(2) The department may deny, reprimand, fine, suspend, or
revoke the approval of an education provider or instructor if the
department finds that the education provider or instructor has
violated or failed to satisfy the provisions of this chapter or the
regulations and standards promulgated pursuant to this chapter.
(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.
Section 40-57- 240. The provisions of this chapter do not apply
to:
(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."
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