H*4458 Session 110 (1993-1994)
H*4458(Rat #0438, Act #0385) General Bill, By Boan, H.H. Clyborne, J.H. Hodges and
Kirsh
A Bill to amend Section 1-30-65, Code of Laws of South Carolina, 1976,
relating to the Department of Labor, Licensing, and Regulation, so as to
include the South Carolina Real Estate Commission and the Real Estate
Appraisers Board within the list of professional and occupational licensing
boards incorporated in and administered as part of the Department and to
correct certain references to other professional and occupational licensing
boards under the Department; to amend Sections 40-57-20, as amended, 40-57-50,
40-57-80, 40-57-90, as amended, 40-57-100, as amended, 40-57-110, as amended,
40-57-115, 40-57-120, 50-57-140, as amended, 40-57-155, 40-57-160, as amended,
40-57-170, as amended, 40-57-180, 40-57-190, 40-57-200, 40-57-210, and
40-57-220, as amended, relating to real estate brokers, counsellors, salesmen,
appraisers, auctioneers, and property managers, and Sections 40-60-20, as
amended, 40-60-50, as amended, 40-60-60, as amended, 40-60-100, as amended,
40-60-120, as amended, 40-60-160, as amended, and 40-60-170, as amended,
relating to the South Carolina Real Estate Appraiser Registration, License and
Certification Act, so as to, among other things, abolish the office of Real
Estate Commissioner and devolve the powers, duties, and responsibilities of
that office upon the Real Estate Commission or its Chairman or upon the Real
Estate Appraisers Board or the Board's Chairman, delete references to the
Commissioner, delete certain other language and provisions, and add certain
provisions; to amend Section 40-73-15, relating to professions and occupations
administered by the Department of Labor, Licensing and Regulation, so as to
clarify references to certain of these professions and occupations; to amend
Sections 27-29-20, 27-29-30, 27-29-50, 27-29-60, 27-29-70, 27-29-80, 27-29-90,
27-29-100, 27-29-110, 27-29-120, 27-29-130, 27-29-140, 27-29-190, and
27-29-200, relating to the Uniform Land Sales Practice Act, so as to, among
other things, delete reference to the South Carolina Real Estate Commissioner
and provide that Chapter 29, Title 27 shall be administered by the
01/12/94 House Introduced and read first time HJ-11
01/12/94 House Referred to Committee on Labor, Commerce and
Industry HJ-12
02/09/94 House Committee report: Favorable with amendment Labor,
Commerce and Industry HJ-15
02/22/94 House Amended HJ-19
02/22/94 House Read second time HJ-24
02/23/94 House Read third time and sent to Senate HJ-21
02/24/94 Senate Introduced and read first time SJ-8
02/24/94 Senate Referred to Committee on Labor, Commerce and
Industry SJ-8
03/29/94 Senate Committee report: Favorable with amendment Labor,
Commerce and Industry SJ-18
03/31/94 Senate Amended SJ-327
03/31/94 Senate Read second time SJ-328
03/31/94 Senate Unanimous consent for third reading on next
legislative day SJ-355
04/04/94 Senate Read third time and returned to House with
amendments SJ-13
04/06/94 House Debate adjourned on Senate amendments until
Wednesday, April 13, 1994 HJ-25
04/21/94 House Senate amendment amended HJ-64
04/21/94 House Returned to Senate with amendments HJ-64
04/26/94 Senate Concurred in House amendment and enrolled SJ-43
05/04/94 Ratified R 438
05/10/94 Signed By Governor
05/10/94 Effective date 05/10/94
05/23/94 Copies available
(A385, R438, H4458)
AN ACT TO AMEND SECTION 1-30-65, CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO THE DEPARTMENT OF
LABOR, LICENSING, AND REGULATION, SO AS TO INCLUDE THE
SOUTH CAROLINA REAL ESTATE COMMISSION AND THE REAL
ESTATE APPRAISERS BOARD WITHIN THE LIST OF
PROFESSIONAL AND OCCUPATIONAL LICENSING BOARDS
INCORPORATED IN AND ADMINISTERED AS PART OF THE
DEPARTMENT AND TO CORRECT CERTAIN REFERENCES TO
OTHER PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARDS UNDER THE DEPARTMENT; TO AMEND SECTIONS
40-57-20, AS AMENDED, 40-57-50, 40-57-80, 40-57-90, AS
AMENDED, 40-57-100, AS AMENDED, 40-57-110, AS AMENDED,
40-57-115, 40-57-120, 40-57-140, AS AMENDED, 40-57-155, 40-57-160,
AS AMENDED, 40-57-170, AS AMENDED, 40-57-180, 40-57-190,
40-57-200, 40-57-210, AND 40-57-220, AS AMENDED, RELATING TO
REAL ESTATE BROKERS, COUNSELORS, SALESMEN,
APPRAISERS, AUCTIONEERS, AND PROPERTY MANAGERS, AND
SECTIONS 40-60-20, AS AMENDED, 40-60-50, AS AMENDED,
40-60-60, AS AMENDED, 40-60-100, AS AMENDED, 40-60-120, AS
AMENDED, 40-60-160, AS AMENDED, AND 40-60-170, AS
AMENDED, RELATING TO THE SOUTH CAROLINA REAL ESTATE
APPRAISER REGISTRATION, LICENSE, AND CERTIFICATION ACT,
SO AS TO, AMONG OTHER THINGS, ABOLISH THE OFFICE OF
REAL ESTATE COMMISSIONER AND DEVOLVE THE POWERS,
DUTIES, AND RESPONSIBILITIES OF THAT OFFICE UPON THE
REAL ESTATE COMMISSION OR ITS CHAIRMAN OR UPON THE
REAL ESTATE APPRAISERS BOARD OR THE BOARD'S
CHAIRMAN, DELETE REFERENCES TO THE COMMISSIONER,
DELETE CERTAIN OTHER LANGUAGE AND PROVISIONS, AND
ADD CERTAIN PROVISIONS; TO AMEND SECTION 40-73-15,
RELATING TO PROFESSIONS AND OCCUPATIONS
ADMINISTERED BY THE DEPARTMENT OF LABOR, LICENSING,
AND REGULATION, SO AS TO CLARIFY REFERENCES TO
CERTAIN OF THESE PROFESSIONS AND OCCUPATIONS; TO
AMEND SECTIONS 27-29-20, 27-29-30, 27-29-50, 27-29-60, 27-29-70,
27-29-80, 27-29-90, 27-29-100, 27-29-110, 27-29-120, 27-29-130,
27-29-140, 27-29-190, AND 27-29-200, RELATING TO THE UNIFORM
LAND SALES PRACTICE ACT, SO AS TO, AMONG OTHER THINGS,
DELETE REFERENCE TO THE SOUTH CAROLINA REAL ESTATE
COMMISSIONER AND PROVIDE THAT CHAPTER 29, TITLE 27
SHALL BE ADMINISTERED BY THE SOUTH CAROLINA REAL
ESTATE COMMISSION RATHER THAN THE REAL ESTATE
COMMISSIONER; AND TO AMEND SECTIONS 27-32-10, 27-32-20,
27-32-120, AS AMENDED, 27-32-130, 27-32-140, 27-32-150, 27-32-160,
27-32-180, 27-32-190, 27-32-200, 27-32-210, 27-32-220, 27-32-230, AND
27-32-250, RELATING TO VACATION TIME SHARING PLANS, SO
AS TO, AMONG OTHER THINGS, DELETE REFERENCES TO THE
REAL ESTATE COMMISSIONER AND TRANSFER THE
COMMISSIONER'S DUTIES, POWERS, AND RESPONSIBILITIES TO
THE REAL ESTATE COMMISSION.
Be it enacted by the General Assembly of the State of South Carolina:
Real Estate Commission, Real Estate Appraisers Board, administered
by cabinet-level department; etc.
SECTION 1. Section 1-30-65(C) of the 1976 Code, as added by Act 181
of 1993, is amended to read:
"(C) Professional and Occupational Licensing Boards
including:
Accountancy Board, formerly provided for at Section 40-1-10, et
seq.;
Architectural Board of Examiners, formerly provided for at Section
40-3-10, et seq.;
Athletic Commission, formerly provided for at Section 52-7-10, et
seq.;
Auctioneers Commission, formerly provided for at Section 40-6-10, et
seq.;
Barber Examiners Board, formerly provided for at Section 40-7-10, et
seq.;
Barrier Free Design Board, formerly provided for at Section 10-5-210, et
seq.;
Building Code Council, formerly provided for at Section 6-9-60, et
seq.;
Burglar Alarm Business, formerly provided for at Section 40-79-10, et
seq.;
Chiropractic Examiners Board, formerly provided for at Section
40-9-10, et seq.;
Contractors Licensing Board, formerly provided for at Section 40-11-10,
et seq.;
Cosmetology Board, formerly provided for at Section 40-13-10, et
seq.;
Dentistry Board, formerly provided for at Section 40-15-10, et seq.;
Embalmers and Funeral Directors/Funeral Service Board, formerly
provided for at Section 40-19-10, et seq.;
Engineers and Land Surveyors Board, formerly provided for at Section
40-21-10, et seq.;
Environmental Systems Operators Board, formerly provided for at
Section 40-23-10, et seq.;
Fire Sprinkler Contractors Board, formerly provided for at Section
23-45-10, et seq.;
Foresters Registration Board, formerly provided for at Section 48-27-10,
et seq.;
Geologists Registration Board, formerly provided for at Section
40-77-10, et seq.;
Harbor Pilots/Pilotage Commission, formerly provided for at Section
54-15-40, et seq.;
Liquefied Petroleum Gas Board, formerly provided for at Section
39-43-20, et seq.;
Manufactured Housing Board, formerly provided for at Section
40-29-10, et seq.;
Modular Appeals Board, formerly provided for at Section 23-43-50, et
seq.;
Nursing Board, formerly provided for at Section 40-33-10, et seq.;
Nursing Home Administrators Board, formerly provided for at Section
40-35-10, et seq.;
Occupational Therapy Board, formerly provided for at Section 40-36-10,
et seq.;
Optometry Board, formerly provided for at Section 40-37-10, et
seq.;
Opticianry Board, formerly provided for at Section 40-38-10, et
seq.;
Pharmacy Board, formerly provided for at Section 40-43-10, et seq.;
Physical Therapy Examiners, formerly provided for at Section 40-45-10,
et seq.;
Physicians, Surgeons and Osteopaths/Board of Medical Examiners,
formerly provided for at Section 40-47-10, et seq.;
Podiatry Examiners, formerly provided for at Section 40-51-10, et
seq.;
Professional Counselors, Marital and Family Therapists, formerly
provided for at Section 40-75-10, et seq.;
Psychology Board of Examiners, formerly provided for at Section
40-55-20, et seq.;
Pyrotechnic Safety Board, formerly provided for at Section 40-56-10, et
seq.;
Real Estate Commission regulating Real Estate Brokers, Counsellors,
Salesmen, Auctioneers, and Property Managers, formerly provided for at
Section 40-57-10 et seq., and Real Estate Appraisers Board, formerly
provided for at Section 40-60-10 et seq.;
Residential Home Builders Board, formerly provided for at Section
40-59-10, et seq.;
Sanitarian Board of Examiners, formerly provided for at Section
40-61-10, et seq.;
Social Worker Board of Examiners, formerly provided for at Section
40-63-10, et seq.;
Speech/Language Pathology and Audiology Board of Examiners,
formerly provided for at Section 40-67-10, et seq.;
Veterinary Medical Examiners, formerly provided for at Section
40-69-10, et seq."
Powers transferred
SECTION 2. Section 40-57-20 of the 1976 Code, as last amended by Act
12 of 1991, is further amended to read:
"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."
Provisions deleted
SECTION 3. Section 40-57-50 of the 1976 Code is amended to read:
"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."
Powers transferred; provisions deleted; etc.
SECTION 4. Section 40-57-80 of the 1976 Code is amended to read:
"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."
Powers transferred
SECTION 5. Section 40-57-90 of the 1976 Code, as last amended by Act
12 of 1991, is further amended to read:
"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."
Powers transferred
SECTION 6. Section 40-57-100 of the 1976 Code, as last amended by Act
12 of 1991, is further amended to read:
"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."
Powers transferred
SECTION 7. Section 40-57-110 of the 1976 Code, as last amended by Act
12 of 1991, is further amended to read:
"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."
Powers transferred
SECTION 8. Section 40-57-115 of the 1976 Code, as added by Act 12 of
1991, is amended to read:
"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."
Powers transferred
SECTION 9. Section 40-57-120 of the 1976 Code is amended to read:
"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."
Powers transferred, etc.
SECTION 10. Section 40-57-140 of the 1976 Code, as last amended by
Act 609 of 1988, is further amended to read:
"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."
Powers transferred
SECTION 11. Section 40-57-155 of the 1976 Code, as added by Act 170
of 1993, is amended to read:
"Section 40-57-155. 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.
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 recordkeeping services required by this section.
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.
The commission shall promulgate regulations prescribing the overall
parameters of the continuing education program.
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.
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.
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."
Powers transferred
SECTION 12. Section 40-57-160 of the 1976 Code, as last amended by
Act 170 of 1993, is further amended to read:
"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."
Powers transferred
SECTION 13. Section 40-57-170 of the 1976 Code, as last amended by
Section 931 of Act 181 of 1993, is further amended to read:
"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, as soon after receipt as is practicably
possible, 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 on or before the next banking day 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."
Powers transferred; hearing
SECTION 14. Section 40-57-180 of the 1976 Code is amended to
read:
"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."
Powers transferred; appointment by department director; etc.
SECTION 15. Section 40-57-190 of the 1976 Code is amended to
read:
"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."
Powers transferred
SECTION 16. Section 40-57-200 of the 1976 Code is amended to
read:
"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."
Powers transferred; etc.
SECTION 17. Section 40-57-210 of the 1976 Code is amended to
read:
"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."
Powers transferred; appeals; provisions deleted
SECTION 18. Section 40-57-220 of the 1976 Code, as last amended by
Section 932 of Act 181 of 1993, is further amended to read:
"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."
Definitions deleted
SECTION 19. Section 40-60-20 of the 1976 Code, as added by Act 12 of
1991 and as last amended by Act 143 of 1993, is further amended to
read:
"Section 40-60-20. As used in this chapter, unless the context
requires otherwise:
(1) `Analysis' means a study of real estate or real property other than
one estimating value.
(2) `Appraisal' or `real estate appraisal' means an analysis, opinion, or
conclusion as to the value of identified real estate or specified interests in
real estate, including a feasibility study, marketability study, or other study
or analysis that involves the rendering of an analysis, opinion, or
conclusion of value performed for a fee or other consideration, including
valuation or evaluation performed for a person who advises, consults, or
prepares.
(3) `Appraisal Foundation' means the Appraisal Foundation established
on November 30, 1987, as a not-for-profit corporation under the laws of
Illinois.
(4) `Appraisal report' means any communication, written or oral, of an
appraisal. The testimony of an appraiser dealing with the appraiser's
analyses, conclusions, or opinions concerning identified real property is
deemed to be an oral appraisal report.
(5) `Appraisal subcommittee' means the designees of the heads of the
federal financial institutions regulatory agencies established by the Federal
Financial Institutions Examination Council Act of 1978 (12 U.S.C. Section
3301, et seq.), as amended.
(6) `Appraiser' means a person who is a state registered real estate
appraiser, a state licensed real estate appraiser, a state certified real estate
appraiser, or an appraiser apprentice.
(7) `Appraiser Apprentice' means a person who holds a valid permit as
an appraiser apprentice issued under the provisions of this chapter.
(8) `Board' means the South Carolina Real Estate Appraisers Board
established pursuant to the provisions of this chapter.
(9) `Evaluation assignment' means an engagement for which an
appraiser is employed or retained to give an analysis, opinion, or
conclusion that relates to the nature, quality, or utility of identified real
estate or identified real property.
(10) `Federally-related transaction' means any real estate-related
financial transaction which:
(a) a federal financial institution regulatory agency or the Resolution
Trust Corporation engages in, contracts for, or regulates; and
(b) requires the services of an appraiser.
(11) `Independent appraisal assignment' means an engagement for
which an appraiser is employed or retained to act, or would be perceived by
third parties or the public as acting, as a disinterested third party in
rendering an unbiased analysis, opinion, or conclusion relating to the
nature, quality, value, or utility of identified real estate or identified real
property.
(12) `Person' means individuals, corporations, partnerships, or
associations, foreign and domestic.
(13) `Real estate' means an identified parcel of land, including
improvements, if any.
(14) `Real estate appraisal activity' means the act or process of
valuation of real estate or real property and preparing an appraisal
report.
(15) `Real property' means one or more defined interests, benefits, and
rights inherent in the ownership of real estate.
(16) `Specialized services' means services other than independent
appraisal assignments which are performed by an appraiser. Specialized
services may include marketing, financing, and feasibility studies,
valuations, analyses, opinions, and conclusions given in connection with
activities such as real estate brokerage, mortgage banking, real estate
counseling, and real estate tax counseling.
(17) `Standards of professional appraisal practice' means the uniform
standards of professional appraisal practice as adopted by the Appraisal
Standards Board of the Appraisal Foundation and adopted by the board.
(18) `State' includes any state, district, territory, possession, or province
of the United States or Canada.
(19) `State certified real estate appraiser' means a person who holds a
valid certificate as either a state certified residential real estate appraiser or
a state certified general real estate appraiser issued under the provisions of
this chapter.
(20) `State certified general real estate appraiser' means a person who
holds a valid certificate as a state certified general real estate appraiser
issued under the provisions of this chapter.
(21) `State certified residential real estate appraiser' means a person
who holds a valid certificate as a state certified residential real estate
appraiser issued under the provisions of this chapter.
(22) `State licensed real estate appraiser' means a person who holds a
valid license as a state licensed real estate appraiser issued under the
provisions of this chapter.
(23) `State registered real estate appraiser' means a person who holds a
valid registration as a state registered real estate appraiser issued under the
provisions of this chapter.
(24) `Valuation' means an estimate of the value of real estate or real
property.
(25) `Valuation assignment' means an engagement for which an
appraiser is employed or retained to give an analysis, opinion, or
conclusion that estimates the value of an identified parcel of real estate or
identified real property at a particular point in time.
(26) `Timberland' means forest land that is producing, or is capable of
producing, timber as a crop.
(27) `Market analysis' means a study of real estate market conditions
for a specific type of property."
Provisions deleted
SECTION 20. Section 40-60-50 of the 1976 Code, as added by Act 12 of
1991 and as last amended by Act 143 of 1993, is further amended to
read:
"Section 40-60-50. (A) There is created the South Carolina Real
Estate Appraisers Board which consists of seven members. All members
must be residents of this State. One member must be a public member who
may not be connected in any way with the practice of real estate appraisal,
real estate brokerage, or mortgage lending. One member must be a licensed
real estate broker who is not a real estate appraiser. One member must be
actively engaged in mortgage lending, representing supervised financial
institutions, who is not a real estate licensee or a real estate appraiser and
who also must not be connected in any way with the brokerage of real
estate, the appraisal of real estate, or the review of real estate appraisals.
Four members must be real estate appraisers who have been actively
engaged in real estate appraisal for at least three years. In appointing real
estate appraisers to the board, while not automatically excluding other
appraisers, the Governor shall give preference to real estate appraisers
whose primary source of income is derived from appraising real estate and
not real estate brokerage.
(B) The Governor shall appoint the members of the board, upon the
advice and consent of the Senate, with consideration given to appropriate
geographic representation and to areas of appraisal expertise. The
appointments made when the Senate is not in session are effective until the
Senate confirms or denies that appointment.
(C) Each real estate appraiser member of the board appointed after July
1, 1992, must be a state certified real estate appraiser or a state licensed real
estate appraiser. At least two of the appraiser members appointed after July
1, 1993, must be state certified general real estate appraisers.
(D) The term of each member of the board is three years and until their
successors are appointed and qualified. In the event of a vacancy, the
Governor shall appoint a person to fill the vacancy, and the person so
appointed shall serve for the remainder of the unexpired term.
(E) Upon expiration of their terms, members of the board shall continue
to hold office until the appointment and qualification of their successors.
No person may serve as a member of the board for more than two
consecutive terms. The Governor, after giving notice and opportunity for a
hearing, may remove from office a member of the board for:
(1) inability to perform or neglecting to perform the duties required of
members;
(2) incompetence; or
(3) dishonest conduct.
(F) The members of the board shall annually elect a chairman from
among the members to preside at board meetings.
(G) The board shall meet at least once each calendar quarter, or as often
as is necessary, and remain in session as long as the chairman considers it
necessary to give full consideration to the business before the board. A
quorum of the board is four members. Members of the board or support
staff, in a spirit of cooperation, may confer with similar boards of other
states, attend interstate meetings, and generally do those acts and things as
may seem advisable in the advancement of the profession and the standards
of real estate appraisal activity.
(H) Members of the board are entitled to per diem, subsistence, and
mileage as is provided by law for state boards, committees, and
commissions.
(I) The board shall establish policy and promulgate regulations
consistent with this chapter and through its regulations shall have the full
power to regulate the issuance of permits, registrations, licenses, and
certifications, to discipline appraisers in any manner permitted by this
chapter, to establish further qualification for permits, registrations, licenses,
and certifications consistent with this chapter, to regulate approved courses
and course providers or sponsors, and to establish standards for real estate
appraisals consistent with the standards recognized by the appraisal
subcommittee.
(J) The board shall prepare specifications for all licensing and
certification examinations, solicit bids and enter into contracts with one or
more persons, educational testing services, or organizations for the
preparation of a bank of questions and answers for licensing and
certification examinations and administer or contract for the administration
of examinations in those places and at those times as considered
appropriate."
Powers transferred
SECTION 21. Section 40-60-60 of the 1976 Code, as added by Act 12 of
1991 and as last amended by Act 143 of 1993, is further amended to
read:
"Section 40-60-60. (A) A person desiring to act as a state
licensed or state certified real estate appraiser must file an application for
examination, licensure, or certification with the board. A person desiring to
act as a state registered real estate appraiser must file an application for
registration with the board. A person desiring to act as an appraiser
apprentice must file an application for a permit with the board. The
applications must be in the form and detail the board prescribes.
(B) Each application for examination, permit, registration, licensure, or
certification as a real estate appraiser, or for the renewal of a permit,
registration, license, or certification, must be accompanied by the
appropriate fee which must be prescribed by the board by regulation.
(C) No fee or portion of a fee required pursuant to this chapter may be
refunded.
(D) The board may transmit to the appropriate federal authority, at least
annually, a roster of individuals who have become state licensed real estate
appraisers and state certified real estate appraisers and must collect and
transmit any information or fees established under Public Law 101-73, Title
XI, Real Estate Appraisal Reform Amendments. The board may collect a
processing fee necessary to carry out its function under this subsection.
(E) The board shall issue a permit, registration, license, or certification
to engage in the practice of real estate appraising to all applicants who are
qualified under, and who comply with, all the requirements of this chapter
and all regulations promulgated by the board. The permit, registration,
license, or certification remains the property of the State and, upon
suspension or revocation of the permit, registration, license, or certification
must be returned immediately to the board with any related pocket card.
Permits, registrations, licenses, and certifications expire on June thirtieth of
each year.
(F) An appraiser apprentice, state registered real estate appraiser, state
licensed real estate appraiser, or a state certified real estate appraiser who
fails or refuses, after written notice from the board to apply for renewal and
pay the fee and all penalties imposed, is practicing without a permit,
registration, license, or certification and is subject to the penalties provided
therefor in this chapter and any civil or criminal penalties authorized by
law.
(G) An appraiser apprentice, state registered real estate appraiser, state
licensed real estate appraiser, or a state certified real estate appraiser under
this chapter who fails to apply for the renewal of his permit, registration,
license, or certification and pay the required fee on or before the date of its
expiration shall pay a late penalty established by regulation in addition to
the renewal fee.
(H) The board, through its regulations, may establish those other
reasonable fees to aid in the enforcement and administration of this
chapter.
(I) Any check which is presented to the board as payment for any fee
which the board is permitted to charge under this chapter and which is
returned unpaid may be cause for denial of a permit, registration, license, or
certification or for imposing any sanction permitted by this chapter.
(J) Except as provided for in subsection (D), all fees collected pursuant
to the provisions of this chapter must be deposited by the board in the state
general fund."
Powers transferred; etc.
SECTION 22. Section 40-60-100 of the 1976 Code, as added by Act 12 of
1991 and as last amended by Act 143 of 1993, is further amended to
read:
"Section 40-60-100. (A) Every applicant for permitting,
registration, licensure, or certification under this chapter who is not a
resident of South Carolina shall submit, with the application for permitting,
registration, licensure, or certification, an irrevocable consent that service
of process upon the applicant may be made by delivery of the process to the
chairman of the board or any authorized assistant or deputy appointed by
the Director of the Department of Labor, Licensing, and Regulation, if, in
an action against the applicant in a court of South Carolina arising out of
the applicant's activities as an appraiser, the plaintiff, in the exercise of due
diligence, may not effect personal service upon the applicant.
(B) A nonresident of South Carolina who has complied with the
provisions of subsection (A) of this section may obtain a permit,
registration, license, or certification by conforming to all of the provisions
of this chapter relating to the permit, registration, license, or certification
sought.
(C) A person who is licensed or certified to practice real estate
appraising in other states shall submit an attestation of licensure or
certification from the real estate appraiser regulatory authority of 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 or certification. In the application for examination, all questions of
equivalency of academic and experience requirements of other states must
be determined by the board and, at the discretion of the board, the
nonresident applicant must comply with additional requirements specified
by the board.
(D) The board may enter into reciprocal agreements with real estate
appraiser regulatory authorities of other jurisdictions which provide for
waivers of education requirements or examinations if the board considers
the education and examination requirements of another jurisdiction to be
substantially equivalent to the requirements of this chapter and its
regulations."
Powers transferred
SECTION 23. Section 40-60-120 of the 1976 Code, as added by Act 12 of
1991 and as last amended by Act 143 of 1993, is further amended to
read:
"Section 40-60-120. (A) The board shall prescribe the form of a
wall certificate to denote that an individual is an appraiser apprentice, a
state registered real estate appraiser, a state licensed real estate appraiser, a
state certified residential real estate appraiser, or a state certified general
real estate appraiser, as the case may be. The board shall mail the wall
certificate to the appraiser whose duty it is to display the wall certificate
conspicuously in the appraiser's place of business. The board also shall
prepare and deliver a pocket card indicating that the person whose name
appears thereon is an appraiser apprentice, a state registered real estate
appraiser, a state licensed real estate appraiser, a state certified residential
real estate appraiser, or a state certified general real estate appraiser.
(B) A permit, registration, license, or certification issued under
authority of this chapter must bear a number assigned by the board. When
signing an appraisal report, an appraiser apprentice shall place his permit
number adjacent to or immediately below his title of `Appraiser
Apprentice'. When signing an appraisal report, a state registered real estate
appraiser shall place his registration number adjacent to or immediately
below his title of `State Registered Real Estate Appraiser'. When signing an
appraisal report, a state licensed real estate appraiser shall place his license
number adjacent to or immediately below his title of `State Licensed Real
Estate Appraiser'. When signing an appraisal report, a state certified
residential real estate appraiser shall place his certificate number adjacent
to or immediately below his title of `State Certified Residential Real Estate
Appraiser'. When signing an appraisal report, a state certified general real
estate appraiser shall place his certificate number adjacent to or
immediately below his title of `State Certified General Real Estate
Appraiser'. The permit, registration, license, or certificate number must be
used in all statements of qualification, contracts, or other instruments used
by the appraiser when reference is made to his apprentice, registered,
licensed, or certified status.
(C) All real estate appraisals given in connection with federally-related
transactions in this State must be in writing and contain the permit,
registration, license, or certification number assigned by the board to the
real estate appraiser.
(D) Wall certificates and pocket cards shall remain the property of the
State and, upon any suspension or revocation of a permit, registration,
license, or certification pursuant to this chapter, the individual holding the
related wall certificate or pocket card immediately shall return the wall
certificate or pocket card to the board."
Real Estate Commissioner deleted; powers transferred; etc.
SECTION 24. Section 40-60-160 of the 1976 Code, as added by Act 12 of
1991 and as last amended by Section 938 of Act 181 of 1993, is further
amended to read:
"Section 40-60-160. (A) Whenever a complaint filed with the
board involves an appraisal report which varies from a sales, lease, or
exchange price the board may in its discretion decline to conduct an
investigation.
(B) A person authorized to conduct an investigation on behalf of the
board shall have access to and may examine any writings, documents, or
other material which may be related to an investigation.
(C) In the conduct of an investigation or proceeding under this chapter,
the chairman of the board, or any authorized assistant or deputy appointed
by the Director of the Department of Labor, Licensing, and Regulation,
may issue subpoenas to compel production of those writings, documents, or
material on behalf of the board. After the service of a notice of hearing, the
chairman of the board may issue subpoenas to compel production of those
writings, documents, or material, either on behalf of the board or at the
request of a respondent. The chairman of the board, the board, any
authorized assistant or deputy appointed by the Director of the Department
of Labor, Licensing, and Regulation, or the respondent may apply to an
administrative law judge as provided under Article 5 of Chapter 23 of Title
1 for an order requiring compliance. Failure to comply with an order is
punishable as for contempt of court.
(D) If technical assistance is required in an investigation due to its
complexity, the board may contract on behalf of the board for consultant
services provided:
(1) no member of the board or commission obtains financial gain for
himself through these consultant services;
(2) no person with whom a member of the board or commission or a
member of his household is employed or negotiating or has an arrangement
concerning prospective employment, may provide these consultant
services.
(E) The results of all investigations may be reported only to the board
and the records of the investigations are not subject to subpoena in civil
actions. Records of investigations must be kept by the board and no part of
any investigative record may be released for any purpose other than a
hearing before the board or its designated hearing officer, review by
another law enforcement agency or lawful licensing authority upon
issuance of a subpoena from the agency or authority or at the discretion of
the board, review by the respondent after the service of a notice of hearing,
or an appeal of a decision by the board to an administrative law judge as
provided under Article 5 of Chapter 23 of Title 1. After service of a notice
of hearing, a respondent has a right to obtain a copy of the investigative
record pertaining to the respondent.
(F) Whenever the board issues a disciplinary sanction pursuant to the
provisions of this chapter, the board shall publish the sanction in its official
newsletter unless the sanction is a private reprimand.
(G) The board shall maintain a public docket or record, in which the
board shall record, from time to time as made, the rulings or decisions upon
all complaints filed with the board and all investigations instituted by the
board, upon or in connection with which any hearing has been held, or in
which a state registered real estate appraiser, a state licensed real estate
appraiser, or state certified real estate appraiser has made no defense unless
the board issues a private reprimand in that instance."
Powers transferred; review by administrative law judge
SECTION 25. Section 40-60-170 of the 1976 Code, as added by Act 12 of
1991 and as last amended by Section 939 of Act 181 of 1993, is further
amended to read:
"Section 40-60-170. (A) Before the board shall impose on any
appraiser any sanction permitted by this chapter or deny issuance of a
registration, license, or certification to an applicant, it shall provide for a
hearing for the appraiser in accordance with the Administrative Procedures
Act.
(B) The date of the hearing must not be less than thirty nor more than
one hundred twenty days from the date after the appraiser or applicant is
notified of the charges against him.
(C) If an appraiser or applicant fails to appear at any hearing after
reasonable notice, the board may proceed to hear the evidence against the
appraiser or applicant and take action as if the appraiser or applicant had
been present. A notice of hearing or final decision of the board in a
disciplinary proceeding must be served upon the appraiser or applicant by
personal service or by certified mail, return receipt requested, to the last
known address of record with the board. If the material is returned marked
`unclaimed' or `refused' or is undeliverable and if the appraiser or applicant
may not be located after diligent effort, the chairman of the board or any
authorized assistant or deputy appointed by the Director of the Department
of Labor, Licensing, and Regulation is considered to be the agent for the
appraiser or applicant for the purposes of this section, and service upon the
chairman of the board or any authorized assistant or deputy appointed by
the Director of the Department of Labor, Licensing, and Regulation is
considered service upon the appraiser or applicant.
(D) A decision by the board to revoke or suspend a registration, license,
or certification or to restrict, limit, or otherwise discipline a registration,
license, or certification holder must be by majority vote of the total
membership of the board. A disciplinary action is subject to review by an
administrative law judge as provided under Article 5 of Chapter 23 of Title
1 upon petition filed by the registration, license, or certification holder
within thirty days from the date of delivery of the board's decision to the
registration, license, or certification holder. A copy of the petition must be
served upon the chairman of the board or any authorized assistant or deputy
appointed by the Director of the Department of Labor, Licensing, and
Regulation.
(E) A person who has exhausted all administrative remedies available
within this chapter and who is aggrieved by a final decision of the board is
entitled to review by an administrative law judge as provided under Article
5 of Chapter 23 of Title 1.
(F) No stay or supersedeas may be granted for more than six months
pending appeal from a decision by the board to revoke, suspend, or
otherwise restrict a license, certification, or registration."
Administrative coverage clarified; expanded
SECTION 26. Section 40-73-15(a) of the 1976 Code, as added by Act 181
of 1993, is amended to read:
"(a) The following professions and occupations hereafter must be
administered by the Department of Labor, Licensing, and Regulation:
Accountants
Architects
Athletic Commission
Auctioneers
Barbers and Barbering
Barrier Free Design Board
Building Code Council
Burglar Alarm Business
Chiropractors and Chiropractic
Contractors
Cosmetologists
Dentists, Dental Hygienists, and Dental Technicians
Embalmers and Funeral Directors/Funeral Service Board
Engineers and Land Surveyors
Environmental Systems Operators
Fire Sprinkler Contractors
Foresters Registration Board
Geologists
Harbor Pilots/Pilotage Commission
Liquefied Petroleum Gas Board
Manufactured Housing Board
Modular Appeals Board
Nurses
Nursing Home Administrators
Occupational Therapists
Optometrists
Opticians
Pharmacists
Physical Therapists
Physicians, Surgeons, and Osteopaths
Podiatrists and Podiatry
Professional Counselors, Marital and Family Therapists
Psychologists
Pyrotechnic Safety Board
Real Estate Appraisers
Real Estate Brokers, Counsellors, Salesmen,
Auctioneers and Property Managers
Residential Home Builders
Sanitarians
Social Workers
Speech/Language Pathologists and Audiologists
Veterinarians."
Powers transferred
SECTION 27. Section 27-29-20 of the 1976 Code is amended to read:
"Section 27-29-20. This chapter shall be administered by the
South Carolina Real Estate Commission."
Powers transferred
SECTION 28. Section 27-29-30 of the 1976 Code is amended to read: "Section 27-29-30. (a) Unless the method of disposition is
adopted for the purpose of evasion of this chapter, the provisions of this
chapter do not apply to offers or dispositions of an interest in land:
(1) by a purchaser of subdivided lands for his own account in a single
or isolated transaction;
(2) if fewer than twenty-five separate lots, parcels, units, or interests
in subdivided lands are offered by a person in a period of twelve
months;
(3) on which there is a residential, commercial, or industrial building,
or as to which there is a legal obligation on the part of the seller to
construct such a building within two years from date of disposition;
(4) to persons who are engaged in the business of construction of
buildings for resale, or to persons who acquire an interest in subdivided
lands for the purpose of engaging, and do engage in the business of
construction of buildings for resale;
(5) pursuant to court order;
(6) by any government or governmental agency;
(7) as cemetery lots or interests.
(b) Unless the method of disposition is adopted for the purpose of
evasion of this chapter, the provisions of this chapter do not apply to:
(1) offers or dispositions of evidences of indebtedness secured by a
mortgage or deed of trust of real estate;
(2) offers or dispositions of securities or units of interest issued by a
real estate investment trust regulated under any state or federal statute;
(3) a subdivision as to which the plan of disposition is to dispose to
ten or fewer persons;
(4) a subdivision as to which the commission has granted an
exemption as provided in Section 27-29-100."
Powers transferred; etc.
SECTION 29. Section 27-29-50 of the 1976 Code is amended to read:
"Section 27-29-50. (a) The application for registration of
subdivided lands shall be filed as prescribed by the commission's rules and
shall contain the following documents and information:
(1) an irrevocable appointment of the South Carolina Real Estate
Commission or any duly authorized assistant or deputy appointed by the
Director of the Department of Labor, Licensing, and Regulation to receive
service of any lawful process in any noncriminal proceeding arising under
this chapter against the applicant or his personal representative;
(2) a legal description of the subdivided lands offered for registration,
together with a map showing the division proposed or made, and the
dimensions of the lots, parcels, units or interests and the relation of the
subdivided lands to existing streets, roads, and other off-site
improvements;
(3) the states or jurisdictions in which an application for registration
or similar document has been filed, and any adverse order, judgment, or
decree entered in connection with the subdivided lands by the regulatory
authorities in each jurisdiction or by any court;
(4) the applicant's name, address, and the form, date and jurisdiction
of organization, and the address of each of its offices in this State;
(5) the name, address, and principal occupation for the past five years
of every director and officer of the applicant or person occupying a similar
status or performing similar functions; the extent and nature of his interest
in the applicant or the subdivided lands as of a specified date within thirty
days of the filing of the application;
(6) a statement, in a form acceptable to the commission, of the
condition of the title to the subdivided lands including encumbrances as of
a specified date within thirty days of the date of application by a title
opinion of a licensed attorney, not a salaried employee, officer, or director
of the applicant or owner, or by other evidence of title acceptable to the
commission;
(7) copies of the instruments which will be delivered to a purchaser to
evidence his interest in the subdivided lands and of the contracts and other
agreements which a purchaser will be required to agree to or sign;
(8) copies of the instruments by which the interest in the subdivided
lands was acquired and a statement of any lien or encumbrance upon the
title and copies of the instruments creating the lien or encumbrance, if any,
with data as to recording;
(9) if there is a lien or encumbrance affecting more than one lot,
parcel, unit, or interest a statement of the consequences for a purchaser of
failure to discharge the lien or encumbrance and the steps, if any, taken to
protect the purchaser in case of this eventuality;
(10) copies of instruments creating easements, restrictions, or other
encumbrances affecting the subdivided lands;
(11) a statement of the zoning and other governmental regulations
affecting the use of the subdivided lands and also of any existing tax and
existing or proposed special taxes or assessments which affect the
subdivided lands;
(12) a statement of the existing provisions for access, sewage
disposal, water, and other public utilities in the subdivision; a statement of
the improvements to be installed, the schedule for their completion, and a
statement as to the provisions for improvement maintenance;
(13) a narrative description of the promotional plan for the disposition
of the subdivided lands together with copies of all advertising material
which has been prepared for public distribution by any means of
communication;
(14) the proposed public offering statement;
(15) any other information, including any current financial statement,
which the commission by its rules requires for the protection of
purchasers.
(b) If the subdivider registers additional subdivided lands to be offered
for disposition, he may consolidate the subsequent registration with any
earlier registration offering subdivided lands for disposition under the same
promotional plan.
(c) The subdivider shall immediately report any material changes in the
information contained in an application for registration."
Powers transferred
SECTION 30. Section 27-29-60 of the 1976 Code is amended to read:
"Section 27-29-60. (a) A public offering statement shall disclose
fully and accurately the physical characteristics of the subdivided lands
offered and shall make known to prospective purchasers all unusual and
material circumstances or features affecting the subdivided lands. The
proposed public offering statement submitted to the commission shall be in
a form prescribed by rules and shall include the following:
(1) the name and principal address of the subdivider;
(2) a general description of the subdivided lands stating the total
number of lots, parcels, units, or interests in the offering;
(3) the significant terms of any encumbrances, easements, liens, and
restrictions, including zoning and other regulations affecting the subdivided
lands and each unit or lot, and a statement of all existing taxes and existing
or proposed special taxes or assessments which affect the subdivided
lands;
(4) a statement of the use for which the property is offered;
(5) information concerning improvements, including streets, water
supply, levees, drainage control systems, irrigation systems, sewage
disposal facilities and customary utilities, and the estimated cost, date of
completion, and responsibility for construction and maintenance of existing
and proposed improvements which are referred to in connection with the
offering or disposition of any interest in subdivided lands;
(6) additional information required by the commission to assure full
and fair disclosure to prospective purchasers.
(b) The public offering statement shall not be used for any promotional
purposes before registration of the subdivided lands and afterwards only if
it is used in its entirety. No person may advertise or represent that the
commission approves or recommends the subdivided lands or disposition
thereof. No portion of the public offering statement may be underscored,
italicized, or printed in larger or heavier or different color type than the
remainder of the statement unless the commission requires it.
(c) The commission may require the subdivider to alter or amend the
proposed public offering statement in order to assure full and fair disclosure
to prospective purchasers, and no change in the substance of the
promotional plan or plan of disposition or development of the subdivision
may be made after registration without notifying the commission and
without making appropriate amendment of the public offering statement. A
public offering statement is not current unless all amendments are
incorporated."
Powers transferred
SECTION 31. Section 27-29-70 of the 1976 Code is amended to read:
"Section 27-29-70. Upon receipt of an application for registration
in proper form, the commission shall forthwith initiate an examination to
determine that:
(1) The subdivider can convey or cause to be conveyed the interest in
subdivided lands offered for disposition if the purchaser complies with the
terms of the offer, and when appropriate, that release clauses, conveyances
in trust, or other safeguards have been provided;
(2) There is reasonable assurance that all proposed improvements will
be completed as represented;
(3) The advertising material and the general promotional plan are not
false or misleading and comply with the standards prescribed by the
commission in its rules and afford full and fair disclosure;
(4) The subdivider has not, or if a corporation, its officers, directors,
and principals have not, been convicted of a crime involving land
dispositions or any aspect of the land sales business in this State, the United
States, or any other state or foreign country within the past ten years and
has not been subject to any injunction or administrative order within the
past ten years restraining a false or misleading promotional plan involving
land dispositions;
(5) The public offering statement requirements of this chapter have
been satisfied."
Powers transferred
SECTION 32. Section 27-29-80 of the 1976 Code is amended to read:
"Section 27-29-80. (a) Upon receipt of the application for
registration in proper form, the commission shall issue a notice of filing to
the applicant. Within ninety days from the date of the notice of filing, the
commission shall enter an order registering the subdivided lands or
rejecting the registration. If no order of rejection is entered within ninety
days from the date of notice of filing, the land is considered registered
unless the applicant has consented in writing to a delay.
(b) If the commission affirmatively determines, upon inquiry and
examination, that the requirements of Section 27-29-70 have been met, it
shall enter an order registering the subdivided lands and shall designate the
form of the public offering statement.
(c) If the commission determines upon inquiry and examination that
any of the requirements of Section 27-29-70 have not been met, the
commission shall notify the applicant that the application for registration
must be corrected in the particulars specified within fifteen days. If the
requirements are not met within the time allowed the commission shall
enter an order rejecting the registration which shall include the findings of
fact upon which the order is based. The order rejecting the registration
shall not become effective for twenty days during which time the applicant
may petition for reconsideration and shall be entitled to a
hearing."
Powers transferred
SECTION 33. Section 27-29-90 of the 1976 Code is amended to read:
"Section 27-29-90. (a) Within thirty days after each annual
anniversary date of an order registering subdivided lands, the subdivider
shall file a renewal report in the form prescribed by the rules of the
commission. The report shall reflect any material changes in information
contained in the original application for registration. The report may, at the
option of the commission, be consolidated with the annual renewal report
required by Section 27-29-200(c).
(b) The commission at its option may permit the filing of annual
renewal reports within thirty days after the anniversary date of the
consolidated registration in lieu of the anniversary date of the original
registration."
Powers transferred
SECTION 34. Section 27-29-100 of the 1976 Code is amended to
read:
"Section 27-29-100. (a) The commission shall prescribe
reasonable rules after a public hearing with notice of it published once in a
newspaper with statewide circulation not less than five days nor more than
fifteen days before the hearing and mailed to all subdividers not less than
five days nor more than fifteen days before the public hearing. The rules
shall include, but not be limited to, provisions for advertising standards to
assure full and fair disclosure; provisions for escrow or trust agreements or
other means reasonably to assure that all improvements referred to in the
application for registration and advertising will be completed and that
purchasers will receive the interest in land contracted for; provisions for
operating procedures; and other rules as are necessary and proper to
accomplish the purpose of this chapter.
(b) The commission by rule or by an order, after reasonable notice and
hearing, may require the filing of advertising material relating to
subdivided lands before its distribution.
(c) If it appears that a person has engaged or is about to engage in an
act or practice constituting a violation of a provision of this chapter, or a
rule or order hereunder, the commission, with or without prior
administrative proceedings may bring an action in the circuit court to
enjoin the acts or practices and to enforce compliance with this chapter or
any rule or order hereunder. Upon proper showing, injunctive relief or
temporary restraining orders shall be granted, and a receiver or conservator
may be appointed. The commission is not required to post a bond in any
court proceedings.
(d) The commission may intervene in a suit involving subdivided lands.
In any suit by or against a subdivider involving subdivided lands, the
subdivider promptly shall furnish the commission notice of the suit and
copies of all pleadings.
(e) The commission may:
(1) accept registrations filed in other states or with the federal
government;
(2) contract with similar agencies in this State or other jurisdictions to
perform investigative functions;
(3) accept grants-in-aid from any source.
(f) The commission shall cooperate with similar agencies in other
jurisdictions to establish uniform filing procedures and forms, uniform
public offering statements, advertising standards, rules, and common
administrative practices.
(g) The commission may exempt one hundred or fewer lots, parcels,
units, or interests in a subdivision from the provisions of this chapter if it
determines that the plan of promotion and disposition is primarily directed
to persons in the local community in which the subdivision is
situated."
Powers transferred
SECTION 35. Section 27-29-110 of the 1976 Code is amended to
read:
"Section 27-29-110. (a) The commission may:
(1) make the necessary public or private investigations within or
outside of this State to determine whether any person has violated or is
about to violate this chapter or any rule or order hereunder, or to aid in the
enforcement of this chapter or in the prescribing of rules and forms
hereunder;
(2) require or permit any person to file a statement in writing, under
oath or otherwise as the commission determines, as to all the facts and
circumstances concerning the matter to be investigated.
(b) For the purpose of any investigation or proceeding under this
chapter, the commission or any officer designated by rule 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.
(c) 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 may apply to the circuit court for an order
compelling compliance."
Powers transferred; provisions added, deleted
SECTION 36. Section 27-29-120 of the 1976 Code is amended to
read:
"Section 27-29-120. (a) If the commission determines after
notice and hearing that a person has:
(1) violated any provision of this chapter;
(2) directly or through an agent or employee knowingly engaged in
any false, deceptive, or misleading advertising, promotional, or sales
methods to offer or dispose of an interest in subdivided lands;
(3) made any substantial change in the plan of disposition and
development of the subdivided lands subsequent to the order of registration
without obtaining prior written approval from the commission;
(4) disposed of any subdivided lands which have not been registered
with the commission;
(5) violated any lawful order or rule of the commission, it may issue
an order requiring the person to cease and desist from the unlawful practice
and to take such affirmative action as in the judgment of the commission
will carry out the purposes of this chapter.
(b) Whenever the commission has reason to believe that any person is
violating or intends to violate any provision of this article, it may, in
addition to all other remedies, order such person to immediately cease and
desist and refrain from such conduct. The commission may apply to an
administrative law judge as provided under Article 5 of Chapter 23 of Title
1 for an injunction restraining the person from such conduct. An
administrative law judge may issue a temporary injunction ex parte, and
upon notice and full hearing may issue any other order in the matter it
deems proper. No bond shall be required of the commission by an
administrative law judge as a condition to the issuance of any injunction or
order contemplated by the provisions of this section."
Powers transferred
SECTION 37. Section 27-29-130 of the 1976 Code is amended to
read:
"Section 27-29-130. (a) A registration may be revoked after
notice and hearing upon a written finding of fact that the subdivider
has:
(1) failed to comply with the terms of a cease and desist order;
(2) been convicted in any court subsequent to the filing of the
application for registration for a crime involving fraud, deception, false
pretenses, misrepresentation, false advertising, or dishonest dealing in real
estate transactions;
(3) disposed of, concealed, or diverted any funds or assets of any
person so as to defeat the rights of subdivision purchasers;
(4) failed to faithfully perform any stipulation or agreement made with
the commission as an inducement to grant any registration, to reinstate any
registration, or to approve any promotional plan or public offering
statement;
(5) made intentional misrepresentations or concealed material facts in
an application for registration. Findings of fact, if set forth in statutory
language, must be accompanied by a concise and explicit statement of the
underlying facts supporting the findings.
(b) If the commission finds after notice and hearing that the subdivider
has been guilty of a violation for which revocation could be ordered, it may
issue a cease and desist order instead."
Powers transferred; review; provisions deleted
SECTION 38. Section 27-29-140 of the 1976 Code is amended to
read:
"Section 27-29-140. A person who has exhausted all
administrative remedies available with the commission and who is
aggrieved by an order pertaining to registration, a cease and desist order, an
order of revocation, or any other final decision of the commission is
entitled to review by an administrative law judge as provided under Article
5 of Chapter 23 of Title 1. This section does not limit utilization of or the
scope of judicial review available under other means of review, redress,
relief, or trial de novo provided by law. A preliminary, procedural, or
intermediate commission action or ruling is immediately reviewable if
review of the final commission decision would not provide an adequate
remedy."
Powers transferred
SECTION 39. Section 27-29-190 of the 1976 Code is amended to
read:
"Section 27-29-190. (a) In addition to the methods of service
provided for in the rules of civil practice service may be made by delivering
a copy of the process to the office of the commission, but it is not effective
unless the plaintiff (which may be the commission in a proceeding
instituted by it):
(1) forthwith sends a copy of the process and of the pleading by
certified or registered mail to the defendant or respondent at his last known
address, and
(2) the plaintiff's affidavit of compliance with this section if filed in
the case on or before the return day of the process, if any, or within such
further time as the court allows.
(b) If any person, including any nonresident of this State, engages in
conduct prohibited by this chapter or any rule or order hereunder, and has
not filed a consent to service of process and personal jurisdiction over him
cannot otherwise be obtained in this State, that conduct authorizes the
commission to receive service of process in any noncriminal proceeding
against him or his successor which grows out of that conduct and which is
brought under this chapter or any rule or order hereunder, with the same
force and validity as if served on him personally. Notice shall be given as
provided in subsection (a)."
Powers transferred
SECTION 40. Section 27-29-200 of the 1976 Code is amended to
read:
"Section 27-29-200. (a) For the registration of subdivided lands
there shall be paid to the commission a registration fee of ten dollars, plus
one-tenth of one percent of the maximum aggregate offering price of the
registered subdivided lands to be offered in this State up to one hundred
thousand dollars, plus one-twentieth of one percent of the amount in excess
of one hundred thousand dollars and not exceeding four hundred thousand
dollars, plus one-fortieth of one percent of the amount in excess of four
hundred thousand dollars; but in no case shall such fee be greater than five
hundred dollars for each registration. Provided, however, that the
commission may prescribe a maximum amount of subdivided lands to be
registered at any one time. If registration is denied or withdrawn before the
offering of subdivided lands in this State, the commission shall refund all of
the fee in excess of one hundred dollars.
(b) the land and books and records of every person selling or offering
for sale subdivided lands subject to the provisions of this chapter are
subject to examination by the commission, or such other person as it may
designate, and the examinee shall pay a fee for each examiner employed to
make such examination of not to exceed twenty-five dollars for each day or
fraction of it, plus the actual expenses, including the cost of transportation
of the examiner, while he is absent from his office for the purpose of
making the examination.
(c) The commission may require any registrant under this chapter to file
an annual renewal report containing such reasonable information as it may
believe necessary regarding the financial condition of such registrant and
the subdivided lands sold in this State by such person. Each renewal report
must be accompanied by a renewal filing fee of one hundred dollars.
(d) In order to carry out the provisions of this chapter the commission
shall retain such fees and other funds which may come into its possession
to defray expenses in the administration of this chapter."
Definition deleted
SECTION 41. Section 27-32-10 of the 1976 Code is amended to read:
"Section 27-32-10. For purposes of this chapter:
(1) `Accommodations' means any hotel or motel room, condominium or
cooperative unit, cabin, lodge, apartment, or any other private or
commercial structure designed for occupancy by one or more individuals or
any recreational vehicle campsite or campground.
(2) `Business entity' means individuals, corporations, firms,
associations, joint venturers, partnerships, trusts, estates, business trusts,
syndicates, fiduciaries, and all other groups or combinations which engage
in acts or practices in any trade or commerce.
(3) `Contract' means any contract, promissory note, credit agreement,
negotiable instrument, lease, use agreement, license, security, or other
muniment conferring on the purchaser the rights, benefits, and obligations
of a vacation time sharing plan.
(4) `Commission' means the South Carolina Real Estate
Commission.
(5) `Facilities' means any structure, service, or property whether
improved or unimproved made available to the purchaser for recreational,
social, family, or personal use.
(6) `Seller' means any business entity including, but not limited to,
agents, dealers, distributors, franchisers, subsidiaries, assignees, resellers,
brokers, or any other representatives of them who, for a fee, commission or
other valuable consideration, negotiates or attempts to negotiate the listing,
sale, auction, purchase, exchange, or lease of any real estate or the
improvements on it or collects rents or attempts to collect rents, or who
advertises or holds himself out as engaged in any of the foregoing
activities. Provided, however, that the provisions of this chapter are not
applicable to:
(a) the sale of real estate by anyone who is the owner of it or who
owns any interest in it, or to the attorney at law of such 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 such stockholder from the provisions of this chapter, unless the
stockholder owns or controls at least ten percent of the stock of the
corporation.
(b) agencies and instrumentalities of the state or federal government
nor to employees of any lender or public officials making appraisals for
federal, state or local units of government, nor to anyone making appraisals
through such employees for lending or governmental purposes.
(7) `Vacation time sharing ownership plan' means any arrangement,
plan or similar devise, whether by tenancy in common, sale, deed, or by
other means, which is subject to supplemental agreement or contract for use
of the time share unit, whereby the purchaser receives an undivided
ownership interest in and the right to use accommodations or facilities, or
both, for a specific period of time during any given year, but not necessarily
for consecutive years, which extends for a period of more than one
year.
(8) `Vacation time sharing lease plan' means any arrangement, plan, or
similar devise, whether by membership agreement, lease, rental agreement,
license, use agreement, security, or other means, whereby the purchaser
receives a right to use accommodations or facilities, or both, but does not
receive an undivided fee simple interest in the property, for a specific
period of time during any given year, but not necessarily for consecutive
years, and which extends for a period of more than one year.
Such lease plans do not include an arrangement or agreement whereby a
purchaser in exchange for an advance fee and yearly dues is entitled to
select from a designated list of facilities located in more than one state
accommodations, of companies which operate nationwide in at least nine
states in the United States through franchises or ownership, for a specified
time period and at reduced rates and under which no interest in real
property is transferred.
(9) `Vacation time sharing plan' means either a vacation time sharing
ownership plan or a vacation time sharing lease plan as defined herein.
(10) `Time sharing unit' means the actual accommodations and related
facilities which are the subject of the vacation time sharing ownership plan
or lease plan.
(11) `Substantially complete' means all structural components and
mechanical systems of all buildings containing or comprising any time
sharing unit, facilities, or accommodations are finished in accordance with
the plans or specifications of the project as evidenced by a recorded
certificate of completion executed by an independent registered surveyor,
architect, or engineer.
(12) `Unit week' means a number of consecutive days, normally seven
consecutive days in duration, which may reasonably be assigned to
purchasers of vacation time sharing plans by the seller.
(13) `Receivable' means any note, contract, promise, or any other
agreement to pay a fixed or determinable amount of money which, for the
purposes of this chapter, shall not be in arrears for more than ninety
days.
(14) `Face value' means the principal amount of money represented by
any receivable as defined in item (13), together with the amount of all
interest to be collected on it.
(15) `Escrow agent' shall mean a bank or trust company doing business
in this State or a bonded trust agent bonded in at least the amount of the
trust; provided, however, that nothing contained in this chapter shall
operate to prevent investment of funds escrowed pursuant to this chapter by
the bank, trust company, or bonded agent and to pay all interest and
dividends to the seller of vacation time sharing plans.
(16) `Escrow account' means any funds held or maintained by an
escrow agent.
(17) `Vacation time sharing sales license' means a license issued by the
commission authorizing individuals to act as sellers of vacation time
sharing plans.
(18) `Fund' and `recovery fund' means the South Carolina Vacation
Time Sharing Recovery Fund.
(19) `Claim' means a monetary loss sustained or allegedly sustained by
a person due to the wrongdoing of a licensee.
(20) `Licensee' means a person having a Vacation Time Sharing sales
license.
(21) `Real estate broker's trust account' means a demand account in a
bank or savings institution in this State held by a duly licensed South
Carolina real estate broker."
Powers transferred
SECTION 42. Section 27-32-20 of the 1976 Code is amended to read:
"Section 27-32-20. It is a violation of this chapter for any seller
of vacation time sharing plans to:
(1) sell, lease, encumber, or convey in any manner or to solicit or
advertise such transactions unless the seller has been duly licensed under
the provisions of Section 27-32-180 or Chapter 57 of Title 40 hereunder
and unless the vacation time sharing plan and the units of it affected have
first been registered with the commission. Provided, however, that the
registration requirement of this chapter shall not apply to nor restrict the
listing and resale of any vacation time sharing plan when:
(a) the vacation time sharing plan resold is within an existing time
sharing facility currently registered with the commission pursuant to the
requirements of this chapter;
(b) the vacation time sharing plan resold is subject to the identical
rules, regulations, conditions, or limitations on the use of the
accommodations or facilities which affect all other vacation time sharing
plans within that time sharing facility.
(2) fail to make available upon request to the commission the following
materials and any amendments or changes in it made while sales
continue:
(a) a copy of the contract by which the rights and obligations of the
parties are established.
(b) copies of promotional brochures, pamphlets, advertisements, or
other material disseminated to the public in connection with the sale of the
vacation time sharing plan and verbatim scripts of all radio and television
advertising in connection with it.
(c) a statement of the type and business entity through which the
business of selling vacation time sharing plans is carried out, including a
list of the names and addresses of all directors, principal officers, dealers,
distributors, and sales personnel soliciting in or from the State of South
Carolina, and the name and address of the business agent for service of
process within the State.
(d) copies of all contracts between the business entity offering the
vacation time sharing plan for sale to the public and each business
providing accommodations and facilities to purchasers of the plan.
(e) copies of all rules, regulations, conditions, or limitations on use of
the accommodations or facilities available pursuant to the vacation time
sharing plan.
(f) a statement as to the existence of all liens on the accommodation
or facilities which could affect the rights of the purchaser or his assignee,
together with the location, date, and filing book and page number where
such liens are recorded.
(g) a synopsis of any sales presentation made by the seller to the
purchaser over the telephone or other electronic device. (h) a projected budget of all reoccurring expenses which may become
the responsibility of all time sharing purchasers.
Upon receipt of all items required by this section, the commission shall
determine the sufficiency of it and upon satisfactory compliance with this
chapter, shall issue its order approving their use. The vacation time sharing
plan shall then be deemed registered."
Powers transferred
SECTION 43. Section 27-32-120 of the 1976 Code, as last amended by
Act 184 of 1993, is further amended to read:
"Section 27-32-120. (A) If upon investigation by the Real Estate
Commission, a person is found to be in violation of this chapter, the
commission shall inform the person of the violation by certified mail, return
receipt requested, and if the commission finds the violation is of a minor
nature, it may assess a monetary fine.
Within ten days from receipt of the certified mail, the person found in
violation of this chapter may pay the fine or take other remedial steps as the
commission, in its sole discretion, may require. If no fine is paid and no
other remedial agreement is reached within the time allowed or any
extension of time granted by the commission, the person may be prosecuted
for the violation as otherwise provided in this section.
Upon payment of a fine or agreement for remedial action, the
commission is authorized to release a person found in violation of this
chapter from any further liability to the State arising from the violation.
(B) A person who wilfully violates any provision of this chapter is
guilty of a misdemeanor and, upon conviction, for a first offense must be
fined not more than five thousand dollars for each violation. Conviction
for a second offense is a misdemeanor and the person must be fined not
more than five thousand dollars or imprisoned not more than six months, or
both for each violation. Conviction for a third or subsequent offense is a
felony and the person must be fined not more than five thousand dollars or
imprisoned not more than five years, or both for each violation.
For purposes of this chapter, a wilful violation occurs when the person
committing the violation knew or should have known that his conduct was
a violation of this chapter.
(C) In addition to the penalties provided in this section, any contract for
the sale of a time-shared unit in violation of this chapter is voidable at the
sole option of the purchaser and entitles the purchaser to a refund of all
consideration paid by him pursuant to the contract.
(D) A deficiency in an escrow required by this chapter, which results
solely from the cancellation or worthlessness of receivables previously
placed in escrow, is not a violation of this chapter. In the event of an
escrow deficiency, a lender who has advanced funds to a project has no
liability to contribute funds to the escrow to cure the deficiency, and the
lender's lien on the project property is not affected by the deficiency."
Powers transferred
SECTION 44. Section 27-32-130 of the 1976 Code is amended to
read:
"Section 27-32-130. The Real Estate Commission is responsible
for the enforcement and implementation of this chapter and the Department
of Labor, Licensing, and Regulation, at the request of the Real Estate
Commission, shall prosecute any violation hereunder. The commission
shall promulgate regulations for the implementation of this chapter and
such regulations are subject to the State Administrative Procedures Act.
The provisions of this section are not construed to limit in any manner the
right of a purchaser or lessee to bring a private action to enforce the
provisions of this chapter."
Powers transferred
SECTION 45. Section 27-32-140 of the 1976 Code is amended to
read:
"Section 27-32-140. If a seller files with the commission any
vacation time sharing plan or any amendment to it which describes or
concerns time sharing units, accommodations, or facilities not substantially
completed, the seller, upon request of the commission, shall file with the
commission the following:
(1) a verified statement showing all costs involved in completing the
property;
(2) a verified statement of the time of completion of construction of the
property;
(3) satisfactory evidence of sufficient funds to cover all costs to
complete the property;
(4) a copy of the executed construction contract and any other contracts
for the completion of the property;
(5) a one hundred percent payment bond covering the entire cost of
construction of the property;
(6) if purchasers' funds are to be used for the construction of the
property, an executed copy of the escrow agreement with an escrow
company or financial institution authorized to do business within the State,
which provides that:
(a) disbursements of purchasers' funds may be made from time to time
to pay for construction of the property, architectural, engineering, finance,
and legal fees, and other costs for the completion of the property in
proportion to the value of the work completed by the contractor as certified
by a registered surveyor, architect, or engineer on bills submitted and
approved by the lender of construction funds or the escrow agent;
(b) disbursements of the balance of purchasers' funds remaining after
completion of the property may be made only after the escrow agent or
lender receives satisfactory evidence that the period for filing mechanics'
and materialmen's liens has expired. The right to claim those liens has been
waived or adequate provision has been made for satisfaction of any claimed
mechanics' or materialmen's lien;
(c) any other restrictions relative to the retention and disbursement of
purchasers' funds required by the commission have been met; and
(d) any other materials or information required by the commission
have been provided.
(7) The commission shall not register or issue any order approving any
vacation time sharing plan unless the commission determines, on the basis
of materials submitted by the developer, that the time sharing units,
accommodations, or facilities or any additions to it will be
completed."
Powers transferred
SECTION 46. Section 27-32-150 of the 1976 Code is amended to
read:
"Section 27-32-150. (A) For the registration of all vacation time
sharing plans and the accommodations and facilities affected by it which
are located within the State, there must be paid to the commission the sum
of one hundred dollars, together with an annual renewal fee of fifty
dollars.
(B) For the registration of all vacation time sharing plans and the
accommodations and facilities affected by it which are located outside the
State, there must be paid to the commission the sum of two hundred fifty
dollars, together with an annual renewal fee of one hundred dollars. All
books, files, accounts, and other documents pertaining to the advertisement
and sale of vacation time sharing plans located outside the State are subject
to examination by the commission and the examinee shall pay a fee for
each examiner employed to make such examination of fifty dollars per day
or fraction of it, plus the actual expenses, including the cost of
transportation of the examiner, while he is absent from his office for
purposes of conducting the examination.
(C) The commission shall retain such fees and other funds which may
come into its possession to defray expenses in the administration and
enforcement of this chapter.
(D) If the commission determines that the registration or operation of
any vacation time sharing plan violates the provisions of this act in such
manner as indicates bad faith or dishonesty, the commission, after notice
and hearing, may assess all reasonable costs of investigation and
prosecution of such violations."
Reenacted (no apparent change)
SECTION 47. Section 27-32-160 of the 1976 Code is amended to
read:
"Section 27-32-160. The commission may accept grants in aid
from any private or public source and may contract with agencies charged
with similar functions in this or other jurisdictions, in furtherance of the
objectives of this chapter."
Powers transferred
SECTION 48. Section 27-32-180 of the 1976 Code is amended to
read:
"Section 27-32-180. (A) Any person desiring to act as a seller of
vacation time sharing plans shall file with the commission a written
application upon such form as the commission shall designate and shall
pass to the satisfaction of the commission the examination hereinafter
prescribed.
(B) Prerequisites for taking the vacation time sharing sales examination
are as follows:
(1) evidence satisfactory to the commission that the applicant bears a
good reputation for honesty and truthfulness;
(2) a current examination of the applicant's credit history, the results
of which must indicate that the applicant has satisfactorily met all past
debts or made adequate provisions for them;
(3) an irrevocable consent to jurisdiction in this State and appointment
of the commission as agent for service of process;
(4) employment by a licensed South Carolina real estate broker.
(C) The commission shall prepare and conduct an examination on the
fundamentals of this chapter and related topics and shall schedule such
examination at least quarterly. No applicant shall be entitled to
examination unless all prerequisites enumerated above have been met and
evidence of it received by the commission at least ten working days before
the examination. The minimum passing grade is seventy-five percent.
(D) If the applicant has met all prerequisites for examination hereunder,
but has not undergone examination, the applicant may request and the
commission, in its sole discretion and upon good cause shown, may issue a
temporary vacation time sharing sales license. The applicant may receive
such temporary license pending the next scheduled test session and the
release of the results from it, whereupon the temporary license shall expire.
No temporary license granted hereunder is renewed. The fee for the
temporary license, which is in addition to the required examination fee and
regular license fee, is twenty-five dollars.
(E) Every applicant shall pay the sum of twenty-five dollars for each
examination taken. Every applicant shall also pay a license fee of one
hundred dollars upon successful completion of the examination. The
commission is entitled to retain all fees collected to defray its expenses. No
fees collected hereunder are in lieu of any business license fees or taxes
imposed by any city, county, or municipal authority. The commission is
entitled to contract with any outside source to prepare and conduct vacation
time sharing sales examinations in its behalf and to pay for the reasonable
cost thereof from the examination fees collected.
(F) Vacation time sharing sales licenses are renewed annually, on or
before June thirtieth, upon submission of a renewal request in such form as
the commission shall prescribe and payment of a fifty dollar renewal fee.
Failure to timely renew shall result in cancellation of the license."
Powers transferred
SECTION 49. Section 27-32-190 of the 1976 Code is amended to
read:
"Section 27-32-190. Every vacation time sharing plan for sale or
offered for sale in this State must be registered with the South Carolina
Real Estate Commission as follows:
A. Upon receipt of an application for registration in proper form, the
commission shall initiate an examination to determine that:
(1) the seller can convey or cause to be conveyed the vacation time
sharing plan offered for sale if the purchaser complies with the terms of the
offer;
(2) the advertising material and general promotional plan are not false
or misleading;
(3) the requirements of this chapter have been fulfilled;
(4) the seller has not, or, if a corporation, its officers, directors, and
principals have not been convicted of any crime involving land
dispositions, crimes of moral turpitude, any securities law violations,
fraudulent business activities, or any aspect of the vacation time sharing
business in this State, the United States, or any other state or foreign
country within the past ten years, and has not been subject to any injunction
or administrative order within the past ten years restraining a false or
misleading promotional plan involving any of the activities above.
B. Upon receipt of the application for registration in proper form, the
commission shall issue a notice of filing to the applicant. Within thirty
days from the date of the notice of filing, the commission shall enter an
order registering the vacation time sharing plan or rejecting the registration.
If no order of rejection is entered within thirty days from the date of notice
of filing, the vacation time sharing plan is considered registered unless the
applicant has consented in writing to a delay. No reasonable request for an
extension of time by the commission may be withheld.
(1) If the commission affirmatively determines upon inquiry and
examination that the requirements of this chapter have been met, it shall
enter an order registering the plan.
(2) If the commission determines upon inquiry and examination that
any of the requirements of this chapter have not been met, the commission
shall notify the applicant that the application for registration must be
corrected in the particulars specified within fifteen days. If the
requirements are not met within the time allowed, the commission shall
enter an order rejecting the registration which shall include the findings of
fact upon which the order is based. The order rejecting the registration
shall not become effective for twenty days during which time the applicant
may petition for reconsideration and must be entitled to a hearing.
(3) If it appears that a person, company, or any business organization
has engaged, or, is about to engage in an act or practice constituting a
violation of a provision of this chapter or any rule or order under it, the
commission, through the Department of Labor, Licensing, and Regulation,
with or without prior administrative proceedings, may bring an action in the
circuit court to enjoin the acts or practices and to enforce compliance with
this chapter or any rule or order hereunder. The commission shall contact,
whenever practicable, any person or business violating this chapter before
recourse to the circuit court. Upon proper showing, injunctive relief or
temporary restraining orders may be granted, and a receiver or conservator
may be appointed. Neither the commission nor the Department of Labor,
Licensing, and Regulation is required to post bond in any court
proceeding.
C. The commission may:
(1) make any public or private investigation which it considers
necessary, either within or outside of this State, to determine whether any
person has violated or is about to violate this chapter or any rule or order
hereunder, or to aid in the enforcement of this chapter or in the prescribing
of rules and forms under it.
(2) 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 rule 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 by it, the commission, through the Department of Labor,
Licensing, and Regulation, may apply to the circuit court for an order
compelling compliance.
D. The commission may:
(1) issue an order requiring the seller to cease and desist from any
unlawful practice and to take such affirmative action as to the judgment of
the commission will carry out the purposes of this chapter, if, after notice
and hearing, the commission determines that a seller has:
(a) violated any provisions of this chapter;
(b) directly or through any agent of employees knowingly engaged
in any false, deceptive, or misleading advertising, promotional, or sales
methods to offer or dispose of an interest in any vacation time sharing
plan;
(c) made any substantial change in the plan of development and sale
of the vacation time sharing plan subsequent to the order of the registration
without obtaining the prior written approval of the commission;
(d) violated any unlawful 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. Before 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
seller. 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.
E. The commission may:
(1) Revoke any registration of a vacation time sharing plan if, after
notice and hearing upon a written finding of fact, it determines that the
seller has:
(a) failed to comply with the terms of a cease and desist order;
(b) been convicted in any court of competent jurisdiction,
subsequent to filing of the application for registration, of a crime involving
fraud, deception, false pretenses, misrepresentation, false advertising, or
dishonest dealing;
(c) disposed of, concealed, or diverted any funds or assets of any
person so as to defeat the rights of vacation time sharing plan
purchasers;
(d) failed to faithfully perform any stipulation or agreement made
with the commission as an inducement to grant any registration, to reinstate
any registration, or to approve any promotional plan or advertisement;
(e) made intentional misrepresentations or concealed material facts
in an application for registration. Findings of fact that a specific provision
of law has been violated must be accompanied by a concise and explicit
statement of the underlying facts supporting the findings.
(2) Issue a cease and desist order instead of revoking a registration if
it finds, after notice and hearing, that the seller has been guilty of a
violation for which revocation could be ordered."
Powers transferred
SECTION 50. Section 27-32-200 of the 1976 Code is amended to
read:
"Section 27-32-200. There is created a special fund to be known
as the `Vacation Time Sharing Recovery Fund', which must be maintained
by the commission and funded as hereinafter provided for the payment of
claims to persons injured by the acts of persons licensed under the
provisions of this chapter.
In addition to the license fees required under the provisions of this
chapter, every licensee shall pay an annual fee in such amount as the
commission shall determine but in no event exceeding twenty-five dollars
for the establishment of a vacation time sharing recovery fund. Such funds
must be held and accumulated from year to year by the State Treasury in a
special fund for the commission to be designated `South Carolina Vacation
Time Sharing Recovery Fund'. The fund must be a continuing fund not
subject to fiscal year limitations and must be under the administrative
direction of the commission. Expenditures from this fund must be made in
accordance with the provisions of this chapter without legislative
appropriation. Warrants for expenditures from the fund must be drawn by
the Comptroller General pursuant to claims approved and signed by the
commission."
Powers transferred
SECTION 51. Section 27-32-210 of the 1976 Code is amended to
read:
"Section 27-32-210. (A) Any person aggrieved by the conduct of
a licensee hereunder is eligible to seek recovery from the fund if the
following conditions have been met:
(1) the facts giving rise to the applicant's claim occurred on or after
January 1, 1982, and were based on a specific violation of this chapter.
(2) the applicant has made demand upon the licensee by certified mail,
return receipt requested, for his actual damages and such demand has been
refused or ignored.
(3) the applicant is not:
(a) related by blood or marriage to the licensee;
(b) licensed under the provisions of this chapter;
(c) the employer, principal or broker in charge of the licensee; or
(d) a party jointly responsible for the claim.
(4) Application for recovery has been made not later than one year
from the date or discovery of the loss.
Failure of the applicant to fully comply with this section constitutes
waiver of all rights hereunder.
(B) Application for recovery must be made under oath and upon such
form as the commission shall prescribe and shall contain the following
minimum information:
(1) name and address of the applicant;
(2) name and address of the licensee and his last known working
address;
(3) amount of recovery sought, together with evidence supporting the
claim;
(4) copies of all complaints or other legal process initiated;
(5) disclosure of any partial satisfaction received, offered or otherwise
available from the licensee, his broker-in-charge, or from any bond or
policy of insurance or any other source;
(6) a detailed statement of the events precipitating the loss, together
with documents and other evidence supporting the claim.
(C) Upon receiving a claim in proper form, the commission shall
forward the claim by certified mail, return receipt requested, to the last
known address of the licensee and to the broker-in-charge of such licensee.
The licensee and the broker-in-charge shall within twenty days file a
verified answer to the claim. If no answer is filed within twenty days, the
broker or licensee is in default and the commission shall schedule an
arbitration of the claim. If the broker or licensee files a timely answer, the
commission shall investigate the claim for a period not to exceed sixty days
and shall thereafter promptly schedule an arbitration of the claim. The
licensee, broker, commission, and claimant are entitled to present evidence,
question, and cross examine witnesses as parties to the
arbitration."
Powers transferred
SECTION 52. Section 27-32-220 of the 1976 Code is amended to
read:
"Section 27-32-220. Payments from the recovery fund are limited
in the following respects:
(1) Only the applicant's actual damages are paid from the recovery
fund. No applicant is entitled to recover punitive, special or consequential
damages, or attorney's fees.
(2) The fund is not liable for more than five thousand dollars per
transaction, regardless of the number of persons aggrieved or the number of
time sharing interests involved in such transaction.
(3) The liability of the fund shall not exceed in the aggregate ten
thousand dollars for any one licensee in a single calendar year and in no
event shall it exceed twenty thousand dollars for any one licensee.
(4) If the maximum liability of the fund is insufficient to pay in full the
valid claims of all aggrieved persons whose claims relate to the same
transaction or to the same licensee, the amount for which the fund is liable
must be distributed among the claimants in a ratio that their respective
claims bear to the total of such valid claims or in the manner as the Board
of Arbitrators in its sole discretion shall decide. The Board of Arbitrators
in its sole discretion is empowered to join in one action all claims having a
common factual basis so that an equitable distribution from the fund may
be achieved.
(5) In the event valid claims against the fund exceed the monies therein
contained, the commission shall satisfy the unpaid claims or portions of
them as soon as a sufficient amount of money has been deposited, together
with interest at the rate of eight percent per annum from the date of award.
All claims against the fund must be made in the same order as the awards
from it were authorized by the Board of Arbitrators. Any award hereunder
shall specifically not be a claim against the State if it cannot be paid due to
a lack of funds in the Vacation Time Sharing Recovery Fund."
Powers transferred
SECTION 53. Section 27-32-230 of the 1976 Code is amended to
read:
"Section 27-32-230. (A) Any person licensed under the
provisions of this chapter and any person claiming an interest in the fund
shall submit to the decision of a Board of Arbitrators, which shall in every
respect be final and binding. The Board of Arbitrators must be composed
of three arbitrators, one chosen by the applicant, one chosen by the licensee
and the commission or its designee. If the licensee fails to nominate an
arbitrator within five days of request or does not respond to the claim, the
commission shall nominate the third arbitrator. The decision of the
majority shall rule. All arbitrations must be held at the office of the
commission at such time as it shall prescribe and according to such rules of
procedure as it shall prescribe.
(B) Upon payment of any claim, the license of the offending licensee is
automatically revoked. The licensee shall not be qualified for relicensing
until all amounts paid on his account are repaid in full to the Recovery
Fund, together with interest at the rate of eight percent per annum. Nothing
in this section shall prevent the commission or any other authority from
pursuing any other remedy at law or equity.
(C) Any applicant receiving an award from the fund shall subrogate all
rights relative to such claim unto the commission to the full extent of all
amounts so paid, including interest, and shall cooperate with the
commission in the prosecution of the subrogated claim. Any amounts so
recovered against the licensee or other responsible parties must be
deposited into the fund, less the costs and expenses of
collection."
Powers transferred
SECTION 54. Section 27-32-250 of the 1976 Code is amended to
read:
"Section 27-32-250. (1) Trusts, partnership interests, undivided
interests as tenants in common, corporate shares, or any other membership
or use interests in a dwelling unit, wherein thirteen or fewer undivided
interests, corporation shares, partnership interests, trust interests, or other
membership or use interests are conveyed, referred to in this section as a
`vacation multiple ownership interest', are not considered a `vacation time
sharing plan' or a `time sharing unit' for purposes of this chapter; provided,
that no debts, encumbrances, or liens, except for purchaser financing, may
exist on the dwelling unit at the time fee simple title is conveyed to the
tenants in common, corporation, trust, partnership, or any other purchasing
organization and provided, further, that insofar as the contract of sale and
sale of a vacation multiple ownership is concerned, the transaction must be
handled by a real estate salesman duly licensed under the provisions of
Chapter 57 of Title 40 rather than under Section 27-32-180. It is a
violation of this chapter for any seller of a vacation multiple ownership
interest to sell, lease, encumber, or convey in any manner or to solicit or
advertise such transactions unless the seller is in compliance with the
provisions of Sections 27-32-20, 27-32-30, 27-32-40, 27-32-50, 27-32-60,
27-32-70, 27-32-80, 27-32-100, 27-32-110, 27-32-120, 27-32-140,
27-32-150, and 27-32-190. Where the words `time sharing' are used in
these sections they also mean `multiple ownership' for the purposes of this
section.
(2) The sale of a vacation multiple ownership interest is exempt from
sales tax in the manner provided by Section 27-32-170.
(3) Any owner selling vacation multiple ownership interests in not more
than one dwelling unit a year is not subject to the provisions of this section.
An individual or any corporation, trust, business, or partnership in which
the individual is an owner, partner, stockholder, trustee, beneficiary, or
affiliate is considered the owner of the dwelling unit for purposes of this
section.
(4) All funds received from purchasers of vacation multiple ownership
interests must be placed in an escrow account with an insured institution
and not disbursed until a sufficient number of vacation multiple ownership
interests are sold to satisfy all outstanding debts, liens, and encumbrances
on the dwelling unit, except for purchaser financing, and all furniture and
furnishings in the dwelling unit, or until the posting with the Real Estate
Commission of a bond, letter of credit, or other equivalent security
satisfactory to the commission, to insure payment of all outstanding debts,
liens, and encumbrances on the dwelling unit and all furniture and
furnishings in the dwelling unit.
(5) Definitions:
(a) The definitions contained in Section 27-32-10, items 1, 2, 3, 4, 5,
6, [except subsections 6 (a) and 6 (b)], 11, 15, 16, and 21 are applicable to
this section.
(b) `Dwelling unit' means the actual accommodations and/or related
facilities which are the subject of the vacation multiple ownership
interest.
(c) `Purchaser' means anyone who receives an undivided interest in a
dwelling unit, a partner in a partnership that owns a dwelling unit, a
shareholder in a corporation that owns a dwelling unit, a beneficiary in a
trust that owns a dwelling unit, a holder of a leasehold interest in a dwelling
unit, or any member of any other organization which owns a dwelling
unit."
Time effective
SECTION 55. This act takes effect upon approval by the Governor.
Approved the 10th day of May, 1994. |