H*3169 Session 112 (1997-1998)
H*3169(Rat #0090, Act #0024 of 1997) General Bill, By Cato
A BILL TO AMEND TITLE 40, CHAPTER 57, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO THE SOUTH CAROLINA REAL ESTATE COMMISSION, SO AS TO CONFORM THIS
CHAPTER TO THE STATUTORY ORGANIZATIONAL AND ADMINISTRATIVE FRAMEWORK
ESTABLISHED FOR PROFESSIONAL AND OCCUPATIONAL LICENSING BOARDS IN CHAPTER 1,
TITLE 40 AND, AMONG OTHER THINGS, TO EXPAND THE RESPONSIBILITIES OF A
"BROKER-IN-CHARGE", TO ESTABLISH THE PARAMETERS, DUTIES, AND RESPONSIBILITIES
FOR AGENCY RELATIONSHIPS IN REAL ESTATE, AND TO REQUIRE LICENSEES TO HAVE A
HIGH SCHOOL DIPLOMA OR THE EQUIVALENT, TO INCREASE THE HOURS REQUIRED FOR A
BROKER'S LICENSE, TO ELIMINATE THE TWO-TIERED SALES EXAMINATION, TO ESTABLISH
OPTIONS FOR SETTLING EARNEST MONEY DISPUTES AND TO REVISE FINES; TO AMEND
SECTION 12-24-70, RELATING TO AFFIDAVITS REQUIRED TO BE FILED WITH DEEDS
STATING THE VALUE OF THE REALTY, SO AS TO PROVIDE THAT AN AFFIDAVIT IS
REQUIRED ONLY IF THE TOTAL VALUE IS NOT SET FORTH EXPLICITLY IN THE DEED AND
TO PROVIDE THAT EXISTING LICENSING FEES REMAIN IN EFFECT.-AMENDED TITLE
01/08/97 House Prefiled
01/08/97 House Referred to Committee on Labor, Commerce and Industry
01/14/97 House Introduced and read first time HJ-69
01/14/97 House Referred to Committee on Labor, Commerce and
Industry HJ-69
01/29/97 House Committee report: Favorable Labor, Commerce and
Industry HJ-6
02/04/97 House Objection by Rep. F. Smith & McMahand HJ-28
02/04/97 House Debate adjourned until Wednesday, February 5,
1997 HJ-28
02/05/97 House Read second time HJ-26
02/05/97 House Objection withdrawn by Rep. McMahand & F. Smith HJ-27
02/06/97 House Read third time and sent to Senate HJ-5
02/06/97 Senate Introduced and read first time
02/06/97 Senate Referred to Committee on Labor, Commerce and Industry
04/16/97 Senate Committee report: Favorable with amendment Labor,
Commerce and Industry SJ-13
04/17/97 Senate Amended SJ-27
04/17/97 Senate Read second time SJ-27
04/24/97 Senate Amended SJ-28
04/24/97 Senate Read third time and returned to House with
amendments SJ-28
04/24/97 Senate Reconsidered SJ-28
04/29/97 Senate Amended SJ-18
04/29/97 Senate Read third time and returned to House with
amendments SJ-18
05/06/97 House Concurred in Senate amendment and enrolled HJ-34
05/15/97 Ratified R 90
05/22/97 Became law without Governor's signature
05/22/97 Effective date 01/01/98
06/02/97 Copies available
06/02/97 Act No. 24
(A24, R90, H3169)
AN ACT TO AMEND TITLE 40, CHAPTER 57, CODE OF LAWS
OF SOUTH CAROLINA, 1976, RELATING TO THE SOUTH
CAROLINA REAL ESTATE COMMISSION, SO AS TO CONFORM
THIS CHAPTER TO THE STATUTORY ORGANIZATIONAL AND
ADMINISTRATIVE FRAMEWORK ESTABLISHED FOR
PROFESSIONAL AND OCCUPATIONAL LICENSING BOARDS IN
CHAPTER 1, TITLE 40 AND, AMONG OTHER THINGS, TO
EXPAND THE RESPONSIBILITIES OF A
"BROKER-IN-CHARGE", TO ESTABLISH THE
PARAMETERS, DUTIES, AND RESPONSIBILITIES FOR AGENCY
RELATIONSHIPS IN REAL ESTATE, AND TO REQUIRE
LICENSEES TO HAVE A HIGH SCHOOL DIPLOMA OR THE
EQUIVALENT, TO INCREASE THE HOURS REQUIRED FOR A
BROKER'S LICENSE, TO ELIMINATE THE TWO-TIERED SALES
EXAMINATION, TO ESTABLISH OPTIONS FOR SETTLING
EARNEST MONEY DISPUTES AND TO REVISE FINES; TO
AMEND SECTION 12-24-70, RELATING TO AFFIDAVITS
REQUIRED TO BE FILED WITH DEEDS STATING THE VALUE OF
THE REALTY, SO AS TO PROVIDE THAT AN AFFIDAVIT IS
REQUIRED ONLY IF THE TOTAL VALUE IS NOT SET FORTH
EXPLICITLY IN THE DEED AND TO PROVIDE THAT EXISTING
LICENSING FEES REMAIN IN EFFECT.
Be it enacted by the General Assembly of the State of South Carolina:
Real estate licensure
SECTION 1. Title 40, Chapter 57 of the 1976 Code is amended to
read:
"CHAPTER 57
Real Estate Brokers, Salesmen,
and Property Managers
Section 40-57-5. Unless otherwise provided for in this chapter,
Article 1, Chapter 1, Title 40 applies to real estate brokers, salesmen, and
property managers; however, if there is a conflict between this chapter
and Article 1, Chapter 1, Title 40, the provisions of this chapter control.
Section 40-57-10. There is created the South Carolina Real Estate
Commission under the administration of the Department of Labor,
Licensing and Regulation. The purpose of this commission is to regulate
the real estate industry so as to protect the public's interest when involved
in real estate transactions.
Section 40-57-20. It is unlawful for an individual to act as a real estate
broker, real estate salesman, or real estate property manager or to
advertise as such without a valid license issued by the department.
Section 40-57-30. For purposes of this chapter:
(1) 'Associated licensee' means a licensee who is affiliated with a
broker-in-charge or property manager-in-charge.
(2) 'Branch office' means a suboffice of a company in which
full-service real estate activities are conducted and at which a
broker-in-charge or property manager-in-charge is licensed to conduct
real estate transactions.
(3) 'Broker' means an individual who for a fee, salary, commission, or
other valuable consideration or who with the intent or expectation of
receiving compensation:
(a) negotiates or attempts to negotiate the listing, sale, purchase,
exchange, lease, or other disposition of real estate or the improvements
thereon;
(b) auctions or offers to auction real estate;
(c) solicits a referral in order to conduct activities set forth in this
section;
(d) offers advisory services as a real estate consultant or counselor;
(e) offers to act as an agent representing a principal in a real estate
transaction;
(f) advertises or otherwise holds himself out to the public as being
engaged in any of the foregoing activities.
(4) 'Broker-in-charge' means the broker who is designated as having
responsibility over the actions of all associated licensees and also has the
responsibility and control over and liability for any real estate trust
accounts.
(5) 'Client' means a person with whom a licensee has established an
agency relationship.
(6) 'Commission' means the group of individuals charged by law with
the responsibility of licensing or otherwise regulating the practice of real
estate within the State of South Carolina.
(7) 'Customer' means a person with whom a licensee has not
established an agency relationship.
(8) 'Department' means the Department of Labor, Licensing and
Regulation.
(9) 'Licensee' means an individual currently licensed under this
chapter.
(10) 'Office' means the principal office location where a
broker-in-charge or a property manager-in-charge is licensed to conduct
real estate business.
(11) 'Property manager' means an individual who for a fee, salary,
commission, or other valuable consideration or who with the intent or
expectation of receiving compensation:
(a) negotiates or attempts to negotiate the rental or leasing of real
estate or improvements thereon;
(b) lists or offers to list and provide services in connection with the
leasing or rental of real estate or improvements thereon;
(c) advertises or otherwise holds himself out to the public as being
engaged in any of the foregoing activities.
(12) 'Property manager-in-charge' means the property manager who is
designated as having the responsibility over the actions of associated
property managers and also the responsibility and control over and
liability for real estate trust accounts.
(13) 'Real estate' means land, buildings, and other appurtenances,
including all interests in land, whether corporeal, incorporeal, freehold,
or nonfreehold, whether the real estate is situate in or outside of this State.
(14) 'Real estate transaction' means an activity involving the sale,
purchase, exchange, or lease of real estate.
(15) 'Salesman' means a licensee associated with a broker-in-charge
who, for compensation, engages in or participates in an activity included
in item (3).
(16) 'Trust account' means an escrow account or properly designated
bank account established and maintained by a broker-in-charge or a
property manager-in-charge to safeguard funds belonging to parties to a
real estate transaction.
Section 40-57-40. (A) The South Carolina Real Estate Commission
consists of nine members elected or appointed as follows:
(1) Six members who are professionally engaged in the active
practice of real estate, one elected from each of the six congressional
districts by a majority of house members and senators, representing the
house and senate districts located within each of the congressional
districts.
(2) Two members representing the public who are not
professionally engaged in the practice of real estate, each appointed by the
Governor with the advice and consent of the Senate.
(3) The eight elected and appointed members shall elect from the
State at large, one additional member who must be in the active practice
of real estate.
(B) Commission members serve a term of four years and until their
successors are elected or appointed and qualify. A vacancy on the
commission must be filled in the manner of the original election or
appointment for the remainder of the unexpired term.
(C) Before entering upon the discharge of the duties of the office, a
member's election or appointment must be certified by and the member
shall take and file with the Secretary of State, in writing, an oath to
perform the duties of the office as a member of the commission and to
uphold the Constitutions of this State and the United States.
(D) A member's term commences on the date election or appointment
is certified by the Secretary of State.
(E) A member may be removed from office in accordance with
Section 1-3-240.
Section 40-57-50. The commission annually shall elect from its total
membership a chairman, vice-chairman, and other officers the
commission determines necessary. The commission may adopt an official
seal and shall adopt rules and procedures reasonably necessary for the
performance of its duties and the governance of its operations and
proceedings.
Section 40-57-60. The commission shall set general policy with regard
to administering and enforcing this chapter and regulations promulgated
under this chapter. Powers and duties include, but are not limited to:
(1) determining the standards for qualifications and eligibility of
applicants for licensure;
(2) conducting disciplinary hearings on alleged violations of this
chapter and regulations promulgated under this chapter and deciding
disciplinary actions as provided in this chapter for those found to be in
violation;
(3) recommending changes in legislation and promulgating
regulations governing the real estate industry relative to the protection of
the safety and welfare of the public.
Section 40-57-65. The commission shall submit to the department an
annual report in accordance with guidelines established by the
department.
Section 40-57-70. (A) All fees relevant to the licensure and regulation
of real estate brokers, salesmen, and property managers must be
established in accordance with Section 40-1-50(D).
(B) For each active license and inactive license not renewed by its
expiration date, the department may assess a reinstatement penalty of
twenty-five dollars per month for each month or part of a month for a
period not to exceed six months during which the license may be
reinstated.
(C) All application and license fees are payable to the department in
advance and must accompany an examination application or a license
application. Application fees are nonrefundable.
(D) The department may allocate up to ten dollars of each license
renewal fee to the South Carolina Real Estate Commission Education and
Research Fund which must be established as a separate and distinct
account within the office of the State Treasurer. The funds collected must
be deposited in this account and used exclusively for:
(1) the advancement of education and research for the benefit of
those licensed under this chapter and for the improvement and increased
efficiency of the real estate industry in this State;
(2) the analysis and evaluation of factors which affect the real estate
industry in this State; and
(3) the dissemination of the results of the research.
Section 40-57-80. To be eligible for licensure, an applicant shall:
(1) have attained the age of twenty-one if applying for a license as a
broker, broker-in-charge, or property manager-in-charge;
(2) have attained the age of eighteen if applying for a license as a
salesman or property manager;
(3) submit to a credit report which shall indicate creditworthiness
satisfactory to the commission. If notified of unsatisfactory credit, the
applicant has sixty days to respond;
(4) have graduated from high school or hold a certificate of
equivalency;
(5) submit proof of completion of education and, if applicable,
experience requirements as specified in this chapter;
(6) pass the applicable examination.
Section 40-57-90. An application for examination or licensure must
be made in writing on a form prescribed by the department and must be
accompanied by all applicable fees.
Section 40-57-100. (A) As a condition for and before applying to
take a license examination, an applicant for a salesman, broker, or
property manager license shall provide proof of having met these
educational requirements within the last five years:
(1) For a salesman's license, completion of thirty hours of
classroom instruction in fundamentals of real estate principles and
practices or evidence submitted to the department of a Juris Doctor,
Bachelor of Laws degree, or a baccalaureate degree with a major in real
estate from an accredited college or university. Within one year following
licensure, a salesman shall provide proof of satisfactory completion of
thirty hours of post-licensing instruction in advanced real estate principles
and practices. Failure to complete the post-licensing education within one
year will result in cancellation of the license;
(2) For a broker's license, completion of one hundred and twenty
hours, sixty hours of which may be the hours required for a salesman's
license, of classroom instruction in advanced real estate principles and
practices and related topics, and three years of experience with a
salesman's license or evidence submitted to the department of a Juris
Doctor, Bachelor of Laws degree, or a baccalaureate degree with a major
in real estate from an accredited college or university or the commission
may accept proof of related education and at least five years of experience
immediately preceding license application in business activities equivalent
to or closely related to real estate transactions;
(3) For a property manager's license, completion of thirty hours of
classroom instruction in property management principles and practices or
evidence submitted to the department of a Juris Doctor, Bachelor of Laws
degree, or a baccalaureate degree with a major in real estate from an
accredited college or university.
(B) As a condition of licensure, an applicant shall submit to an
examination which must be conducted by the department or a designated
test provider at a time and place specified by the department.
The applicant must receive a passing grade on the examination, in
accordance with a cut-score determination established by the department.
An applicant who fails an examination may be reexamined within the
six-month period following initial examination. If an applicant passes one
part of a two-part examination and fails the other, the applicant may be
reexamined on the failed portion within the succeeding six-month period.
An applicant who passes the examination must apply for a license
within one year, or the applicant must reapply for and retake the
examination.
An individual who, at the time of application, holds a real estate license
in another state or jurisdiction or whose real estate license in another state
or jurisdiction expired not more than six months before application is
required to pass only the state portion of the examination to qualify for
licensure.
The department or test provider is authorized to collect and retain
reasonable examination fees. An applicant for an examination to be
conducted by a test provider shall pay the fee directly to the test provider.
Section 40-57-110. (A) The department shall issue licenses in the
classifications of broker, salesman, or property manager to individuals
who qualify under and comply with the requirements of this chapter. No
individual may be licensed in more than one classification at the same
time. The license must be in the form and size as the department
prescribes and is not transferable.
(B) The department may issue a designated broker-in-charge license
to a broker or one qualified to be licensed as a broker and may issue a
designated property manager-in-charge license to a licensed property
manager or one qualified to be licensed as a property manager upon
application on a form prescribed by the department and accompanied by
applicable fees; however, no broker-in-charge or property
manager-in-charge license may be issued to or renewed for an applicant
unless the applicant:
(1) has an ownership interest in the applicant's company; or
(2) is actively engaged in the operation and management of the
company.
(C) Applicants also must submit to a credit report which must indicate
creditworthiness satisfactory to the department. If notified of
unsatisfactory credit, the applicant shall have sixty days to respond.
(D) An individual holding an active broker or salesman license must
be licensed under a broker-in-charge who is licensed by the department
and may not be licensed during the same period with more than one
broker-in-charge. When a licensee becomes disassociated with a
broker-in-charge for any reason, the broker-in-charge immediately shall
notify the department by letter and furnish a forwarding address.
(E) An individual holding an active property manager license must be
licensed under a property manager-in-charge or broker-in-charge who is
licensed by the department or must be designated as a property
manager-in-charge. A property manager may not be licensed during the
same period with more than one property manager-in-charge or
broker-in-charge. When a licensee becomes disassociated with a
broker-in-charge or property manager-in-charge for any reason, the
broker-in-charge or property manager-in-charge immediately shall notify
the department by letter and furnish a forwarding address.
(F) After revocation of a license, a new license may not be issued to
the same individual within a period of one year from the date of
revocation or at any time thereafter except upon an affirmative vote of a
majority of the members of the commission. A person seeking licensure
after revocation shall:
(1) submit to the commission satisfactory proof that the person is
trustworthy, has a good reputation for honesty and fair dealing, and is
competent to transact the business of a real estate licensee;
(2) submit proof of educational qualifications as set forth in this
chapter if the proof of educational qualifications on file is more than five
years old;
(3) pass the applicable examination; and
(4) meet any other qualifications and conditions which apply to
individuals applying for a license who have never been licensed.
(G) A licensee may place a license on inactive status by informing the
department in writing. To maintain an inactive license status, the license
must be renewed in the same manner as provided for active license
renewals. Upon proper compliance with the renewal requirements, a
license may remain on inactive status for an indefinite period of time. An
individual seeking to reactivate a license shall apply for the same license
classification which was placed on inactive status, pay the appropriate fee,
and meet the continuing education requirements as prescribed.
(H) A license must be renewed in accordance with procedures
established by the department pursuant to Section 40-1-50(E). It is the
licensee's responsibility to renew the license whether or not notice is
received.
(I) A license which has not been renewed by its date of expiration is
lapsed and may be reinstated within six months following expiration upon
payment of applicable fees plus penalties as provided for in Section
40-57-70.
(J) A license which has lapsed and has not been reinstated by the last
day of the sixth month following expiration must be canceled.
Section 40-57-120. (A) The commission may enter into reciprocal
agreements with real estate regulatory authorities of other jurisdictions
which provide for waivers of education requirements or examinations if
the commission considers the education and examination requirements of
another jurisdiction to be substantially equivalent to the requirements of
this chapter.
(B) An individual applying for a license by reciprocity shall submit an
application, license fee, and certification of licensure from the real estate
regulatory authority of the jurisdiction where the current or previous
license was held and shall comply with additional requirements as may be
established by the commission. The applicant also shall provide copies
of the records of any disciplinary actions taken against the applicant.
(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-in-charge licensed by the commission. If a
nonresident licensee terminates the affiliation with a broker-in-charge
licensed by the commission, the license of the nonresident is canceled
unless the licensee places the license on inactive status or affiliates with
another broker-in-charge licensed by the commission.
(D) A nonresident is not required to maintain a place of business in
this State if the nonresident maintains an active place of business in the
state of domicile. A 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 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 shall stipulate that the service of process or pleading must be
taken and held in all courts to be as valid and binding as if service had
been made upon the applicant in South Carolina. If the process or
pleadings mentioned in this chapter are served upon the chairman of the
commission or any authorized assistant or deputy appointed by the
Director of the Department of Labor, Licensing and Regulation, it must
be by duplicate copies, one of which must be filed in the office of the
commission and the other immediately forwarded by the commission by
registered or certified mail to the applicant against whom the process or
pleadings are directed, at the last known address of the applicant as shown
by the records of the commission.
(E)(1) A resident licensee who becomes a nonresident must notify the
commission in writing, within sixty days, of the change in residency and
comply with nonresident requirements or place his license on inactive
status to avoid cancellation of the license.
(2) A nonresident licensee who becomes a resident of South
Carolina must notify the commission in writing, within sixty days, of the
change in residency and comply with the requirements of this chapter or
place his license on inactive status to avoid cancellation of the license.
(3) Failure to notify the commission of the change in residency and
compliance with the requirements of this subsection is a violation of this
chapter and subject to the penalties provided for in Section 40-57-150.
(F) A nonresident applicant or licensee must comply with all
requirements of commission regulations and of this chapter. The
commission may adopt regulations necessary for the regulation of
nonresident licensees.
Section 40-57-130. (A) As a condition of active license renewal, a
broker or salesman shall provide proof of satisfactory completion
biennially of eight hours of continuing education in courses approved by
the department and taught by instructors approved by the department.
The eight hours shall include a minimum of two hours of instruction in
current federal and state law affecting brokers and salesmen.
(B) The following are exempt from the biennial continuing education
required by subsection (A):
(1) a broker or salesman who successfully completes a
post-licensing course is exempt for the period during which the course
was taken;
(2) a broker or salesman while on inactive status; however, the
eight-hour requirement must be completed and proof submitted with an
application to return to active status;
(3) instructors of approved courses if they request in writing
continuing education credit for time spent teaching or developing
approved continuing education courses;
(4) a nonresident broker or salesman who has successfully satisfied
the continuing education requirements of the jurisdiction of residence;
(5) a broker or salesman upon reaching the age of sixty-five years
with a minimum of twenty-five years of licensure.
(C) Brokers or salesmen taking more than the required number of
hours during a two-year period may not carry forward any excess hours
to another renewal period.
(D) A broker or salesman who fails to complete the continuing
education requirements required by this section by the date of license
renewal may renew by submitting applicable fees but must immediately
be placed on inactive status and may not engage in the practice of real
estate while on inactive status. The license may be reactivated upon proof
of completion of required continuing education and payment of applicable
fees.
Section 40-57-135. (A) The duties of the broker-in-charge or
property manager-in-charge are to:
(1) adequately supervise employees or associated licensees and
maintain real estate trust accounts;
(2) review and approve all forms of listing agreements, agency
agreements, offers, sale contracts, purchase contracts, leases, options,
contract addenda, or other routinely used contractual documents;
(3) maintain adequate, reasonable, and regular contact with
associated licensees engaged in real estate transactions so as to prevent or
curtail practices by a licensee which would violate any provision of this
chapter, Title 40, Chapter 1, the Interstate Land Sales Practices Act, or the
Vacation Time Sharing Plans Act;
(4) instruct employees and associated licensees on the proper
handling of trust funds;
(5) be available to the public during normal business hours in order
to discuss or resolve complaints and disputes which arise during the
course of real estate transactions in which the broker-in-charge or
property manager-in-charge or an associated licensee is involved;
(6) ensure that accurate and complete records, as required by this
chapter, are maintained for real estate trust accounts;
(7) ensure that backup copies are maintained for computerized real
estate trust accounts. Backup copies must be maintained on a data storage
medium which is separate from the medium which contains the source
documents;
(8) establish and maintain a written office policy in accordance with
Section 40-57-137(B).
(B)(1) The broker-in-charge or property manager-in-charge shall
establish and maintain control of and responsibility for an active real
estate trust account so designated in the company name for which the
respective broker-in-charge's or property manager-in-charge's license is
issued; however, the brokers-in-charge or property managers-in-charge of
a real estate company with multiple offices may utilize one central trust
account.
(2) All monies received by a property manager-in-charge as agent
for his principal in a real estate transaction must be deposited in a separate
real estate trust account so designated within forty-eight hours of receipt,
excluding Saturdays, Sundays, and bank holidays; except that rent monies
received by a licensee who also is directly employed by the owner of
rental property may be placed in an operating or other similar account, but
otherwise must be properly accounted for as provided for in this section.
(3) All monies received by a property manager-in-charge in
connection with a real estate rental including, but not limited to, security
deposits, pet deposits, damage deposits, and advance rentals (except
earned rental proceeds) shall remain in the trust account until the lease or
rental transaction expires or is terminated, at which time the monies must
be disbursed in accordance with the contract which directs the property
manager-in-charge to hold the monies, and a full accounting must be
made to the landlord or tenant as appropriate. Earned rental proceeds
must be disbursed to the landlord within a reasonable time after clearance
of the deposit by the bank.
(4) All monies received by a broker-in-charge as agent for a
principal in a real estate sales or exchange transaction must be deposited
as follows in a separate real estate trust account so designated:
(a) cash monies or certified funds must be deposited within
forty-eight hours of receipt, excluding Saturday, Sunday, and bank
holidays;
(b) checks must be deposited within forty-eight hours, excluding
Saturday, Sunday, and bank holidays, after acceptance of an offer by the
parties to the transaction;
(c) all monies received by a broker-in-charge in connection with
a real estate sales or exchange transaction and deposited in the real estate
trust account shall remain in the trust account until consummation or
termination of the transaction, at which time the monies must be disbursed
in accordance with the contract which directs the broker-in-charge to hold
the monies, and a full accounting must be made to the principal.
(5) If a dispute arises between buyer and seller concerning the
entitlement to and disposition of an earnest money deposit, and the
dispute is not resolved by reasonable interpretation of the contract by the
parties to the contract, the deposit must be held in the trust account until
the dispute is resolved by:
(a) a written agreement which directs the disposition of monies
and is signed by all parties claiming an interest in the trust monies. The
agreement must be separate from the contract which directs the
broker-in-charge or property manager-in-charge to hold the monies;
(b) filing of an interpleader action in a court of competent
jurisdiction;
(c) order of a court of competent jurisdiction;
(d) voluntary mediation.
(6) All trust accounts maintained by brokers-in-charge or property
managers-in-charge must be located in an insured financial institution
authorized to conduct business in South Carolina.
(7) A broker-in-charge or property manager-in-charge also shall
maintain, in his designated principal place of business, a recordkeeping
system consisting of:
(a) for real estate sales, a journal or an accounting system which
records the chronological sequence in which funds are received and
disbursed. For funds received, the journal or accounting system shall
include the date of receipt, the name of the party from whom the money
was received, the name of the principal, identification of the property, the
date of deposit and depository, the payee, the check numbers, dates, and
amounts. A running balance must be maintained for each entry of a
receipt or disbursement. The journal or accounting system shall provide
a means of reconciling the accounts;
(b) for property management, a journal or an accounting system
containing the same information as stated in item (a) except that the
required running balance may be determined at the time of reconciliation;
(c) when managing property, a separate record for each tenant
must be maintained which shall identify the unit, the unit owner, amount
of rent, due date, security deposit, and all receipts with dates. There also
must be maintained an owner's ledger for all properties owned by each
owner showing receipts and disbursements applicable to each property
managed. All disbursements must be documented by bids, contracts,
invoices, or other appropriate written memoranda;
(d) unless other appropriate written memoranda are maintained,
trust account deposit documents shall identify the broker-in-charge or
property manager-in-charge and the buyer or tenant;
(e) a general ledger identifying security deposits;
(f) a monthly reconciliation of each separate account except
where there has been no deposit or disbursement during that month. The
reconciliation shall include a written worksheet comparing the reconciled
bank balance with the journal balance and with the ledger total to ensure
agreement.
(8) All monies received by a licensee in connection with a real
estate transaction in which the licensee is engaged for his
broker-in-charge or property manager-in-charge immediately must be
delivered to the broker-in-charge or property manager-in-charge.
(9) A broker-in-charge or property manager-in-charge may not
commingle monies or other property of the principal with the
broker-in-charge or property manager-in-charge's own money or property,
except that a broker-in-charge or property manager-in-charge may
maintain a clearly identified amount of his own funds in the trust account
to cover bank service charges in order to avoid the closing of the account
when no client's monies are on deposit.
(10) Monies received by a broker-in-charge or property
manager-in-charge which must be deposited in a trust account may be
deposited in an interest-bearing account. Interest earned on these monies
may be retained by the broker-in-charge or property manager-in-charge
only if:
(a) the depositor or owner of such monies has been informed of
their right to ownership of the interest but relinquishes to the
broker-in-charge or property manager-in-charge by written agreement said
right of ownership; and
(b) if such agreement is part of a preprinted form, the language
must be conspicuous.
(11) Records required by this chapter must be maintained for a
minimum of five years and the broker-in-charge or property
manager-in-charge shall furnish a copy of the records to a representative
of the department upon request. Accounting records that may be
requested include, but are not limited to, journals, ledgers, folios, client
subaccounts, tenant accounts, canceled checks, deposit slips, and bank
statements.
(C) A licensed broker-in-charge or property manager-in-charge shall
establish and maintain a specific office location which must be accessible
by the public during reasonable business hours.
(1) A broker-in-charge or property manager-in-charge, in addition
to the principal office location, may maintain one or more branch offices
under the same company name at a different location. Each branch office
must be managed by a broker-in-charge or property manager-in-charge
who shall comply with the requirements of subsection (A).
(2) A licensee may not conduct real estate business under any other
name or at any address other than the one for which his license is issued.
The broker-in-charge or property manager-in-charge shall notify the
department by mail within ten days of any change of office name and/or
address and enclose appropriate fees.
(3) In the event of the death or medical incapacitation of a
broker-in-charge or property manager-in-charge which precludes him
from carrying out duties as required in this chapter, the department may
permit an associated licensee to act as broker-in-charge or property
manager-in-charge for up to six months.
(4) A licensee may not advertise or offer to conduct a real estate
transaction involving real estate owned in whole or in part by another
person without first obtaining a written agency agreement and when
advertising real estate in any medium including site signage, a licensee
shall clearly identify the company with which the licensee is affiliated.
(5) When operating under a trade or franchise name, a licensee
clearly shall reveal the identity of the franchisee or holder of the trade
name.
(6) A licensee clearly shall reveal his license status in a transaction
involving the purchase, sale, exchange, rental, lease, or auction of real
estate. This disclosure must be made before a person's material reliance
upon the licensee which may be influenced by the representations of the
licensee.
(7) Every broker-in-charge or property manager-in-charge shall
maintain for a minimum of five years and shall furnish to the department
upon request a written copy of a:
(a) lease;
(b) contract of sale;
(c) listing contract or agency agreement;
(d) option contract;
(e) management agreement;
(f) agency disclosure form;
(g) closing statement;
(h) policy on agency representation;
(i) fair housing policy.
(8) The department may license the same person as
broker-in-charge or property manager-in-charge of more than one
company or branch office if the broker-in-charge or property
manager-in-charge making the request acknowledges in writing that he
understands the duties and can fully assume the responsibility to ensure
full compliance with this chapter by each office and the associated
licensees.
(D) No licensee either directly or indirectly may buy for his own
account or for a corporation or any other business in which he holds an
interest or for a close relative, real estate listed with him or real estate for
which he has been approached by the seller or prospective buyer to act as
agent, without first making his true position clearly known in writing to
all parties involved. Upon request of the department, the licensee shall
provide evidence of having made this disclosure.
(1) With regard to offers to purchase real estate, a licensee shall:
(a) upon receipt, prepare all offers in writing and promptly
present them to the seller;
(b) upon obtaining a written acceptance of an offer, promptly
deliver true, executed copies to all parties;
(c) ensure that all of the terms and conditions of the transaction
are included in the offer to purchase;
(d) ensure that changes or modifications made during negotiation
are in writing and initialed and dated by both parties before proceeding
with the transaction.
(2) Every licensee shall ensure that, at closing, both the buyer and
the seller in a real estate transaction receive a complete and detailed
closing statement properly accounting for all funds paid, received, and
expended in connection with the transaction.
(3) A licensee may not allow or create an unreasonable delay in the
closing of a transaction or act in a manner which causes failure or
termination of a transaction due solely to a dispute among participating
licensees concerning the division of a commission.
(4) A listing or buyer's representation agreement must be in writing
and must set forth all material terms of the parties' agency relationship
including, but not limited to:
(a) a description of the agent's duties or services to be performed
for the principal;
(b) the amount of compensation to be paid or the method to be
used in calculating the amount of compensation to be paid;
(c) an explanation of how and when the agent earns his
compensation;
(d) an explanation of how compensation will be divided among
participating or cooperating brokers, if applicable;
(e) the amount of retainer fees, deposits, or any other money
which is collected before the agent's performance of any services on
behalf of the principal and an explanation of whether or not, and if so,
under what conditions such monies are refundable or payable to or on
behalf of the principal;
(f) the duration of the agency relationship, setting forth specific
dates for the beginning and ending of the relationship;
(g) the signature of all parties.
(5) In addition to the above requirements, a listing agreement shall:
(a) state the price of the listed property;
(b) not contain a provision requiring a party signing the listing to
notify the licensee of his intention to cancel the listing after the definite
expiration date;
(c) be clearly defined if intended to be either an 'exclusive
agency' listing or 'exclusive right to sell' listing;
(d) clearly specify any exception or variation in amount of
commission to be paid and circumstances which would apply;
(e) be given to the owner at the time of, or directly following,
signing.
(E) The management of each multi-unit rental location must be
provided by an on-site licensee or an off-site licensee if there is no on-site
staff.
(1) The department may permit multiple multi-unit rental property
locations to be managed by one licensee.
(2) An unlicensed employee of the owner of a multi-unit rental
property or an unlicensed individual who works under the supervision of
a licensee is permitted to perform only the following duties:
(a) maintenance;
(b) clerical or administrative support;
(c) collection of rents which are made payable to the owner or
real estate company;
(d) showing rental units to prospective tenants;
(e) furnishing published information;
(f) providing applications and lease forms;
(g) receiving applications and leases for submission to the owner
or the licensee for approval.
(3) An unlicensed employee of the owner or an unlicensed
individual working under the supervision of a licensee may not:
(a) negotiate binding contracts;
(b) vary or deviate from the rental price or other terms and
conditions previously established by the owner or licensee when
supplying relevant information concerning the rental of property;
(c) approve applications or leases or settle or arrange the terms
and conditions of a lease;
(d) indicate to the public that the unlicensed individual is in a
position of authority which has the managerial responsibility of the rental
property.
(4) Licensees who manage property shall do so under a written
management agreement which shall set forth, at a minimum, the:
(a) names and signatures of authorized parties to the agreement;
(b) property identification;
(c) method of compensation to the licensee;
(d) term, including definite expiration date;
(e) terms and conditions of tenant rental or lease arrangements.
Section 40-57-137. (A) A real estate brokerage company that
provides services through an agency agreement for a client is bound by
the duties of loyalty, obedience, disclosure, confidentiality, reasonable
care, diligence, and accounting as set forth in this chapter. The following
are the permissible agency relationships a licensee may establish:
(1) seller agency;
(2) buyer agency;
(3) disclosed dual agency; or
(4) subagency.
(B) The broker-in-charge of a real estate brokerage company shall
adopt a written company policy that identifies and describes the types of
real estate brokerage agency relationships in which associated licensees
may engage. The written policy shall include:
(1) the company's policy regarding cooperation with subagents or
buyer agents, or both, and whether the broker offers compensation to
these agents;
(2) the scope of services provided to the company's clients;
(3) the scope of services provided to the company's customers;
(4) when and how associated licensees shall explain and disclose
their agency relationships with any interested parties to a potential
transaction; the explanation and disclosure shall always comply with the
minimum requirements set forth in this chapter;
(5) when and how an associated licensee shall explain to clients the
potential for the licensee to later act as a disclosed dual agent in specific
transactions, as permitted by this chapter;
(6) the company's policy on compliance with state and federal fair
housing laws.
(C) On reaching a written agreement to provide brokerage services for
a seller of real estate, a seller's agent shall:
(1) perform the terms of the written brokerage agreement made with
the seller;
(2) in accordance with subsection (A), promote the interest of the
seller by performing agency duties which include:
(a) seeking a sale at the price and terms stated in the brokerage
agreement or at a price and terms acceptable to the seller, except that the
licensee is not obligated to seek additional offers to purchase unless the
brokerage agreement provides otherwise while the property is subject to
a contract of sale;
(b) presenting in a timely manner all offers and counteroffers to
and from the seller, even when the property is subject to a contract of sale;
(c) disclosing to the seller all relevant facts concerning the
transaction which are actually known to the licensee or, if acting in a
reasonable manner, should have been known to the licensee, except as
directed otherwise in this section;
(d) advising the seller to obtain expert advice on matters that are
beyond the expertise of the licensee;
(e) accounting in a timely manner, as required by this chapter, for
all money and property received in which the seller has or may have an
interest;
(3) exercise reasonable skill and care in discharging the licensee's
agency duties;
(4) comply with all provisions of this chapter and with any
regulations adopted by the department;
(5) comply with all applicable federal, state, or local laws, rules,
regulations, and ordinances related to real estate brokerage, including laws
which relate to fair housing and civil rights;
(6) preserve confidential information provided by the seller during
the course of and following the agency relationship that might have a
negative impact on the seller's real estate activity unless:
(a) the seller to whom the confidential information pertains
grants consent to disclose the information; or
(b) disclosure is required by law; or
(c) disclosure is necessary to defend the licensee against an
accusation of wrongful conduct in a proceeding before the commission or
before a professional association or professional standards committee.
No cause of action may arise against a licensee for disclosing
confidential information in compliance with subsection (C)(6)(a), (b), or
(c).
(D) A licensee acting as a seller's agent may offer alternative
properties to prospective buyers. A licensee acting as a seller's agent also
may list for sale competing properties.
(E) A licensee acting as a seller's agent may not offer a subagency
relationship to other brokers or offer to compensate another broker who
represents a buyer without the knowledge and consent of the seller client.
(F) A licensee who represents a seller shall treat all prospective buyers
honestly and may not knowingly give them false or misleading
information about the condition of the property which is known to the
licensee or, when acting in a reasonable manner, should have been known
to the licensee. A seller's agent is not obligated to discover latent defects
in property or to advise the agent's clients on matters outside the scope of
the agent's real estate expertise. A seller's agent, the company, and the
broker-in-charge are not liable to a buyer for providing the buyer with
false or misleading information if that information was provided to the
licensee by his client and the licensee did not know or have reasonable
cause to suspect the information was false or incomplete.
(G) Nothing in this chapter limits the obligation of the buyer to inspect
the physical condition of the property which the buyer may purchase.
(H) On reaching a written agreement to provide brokerage services to
a potential buyer of real estate, a buyer's agent shall:
(1) perform the terms of the written brokerage agreement made with
the buyer;
(2) in accordance with subsection (A), promote the interest of the
buyer by performing the buyer's agent's duties which include:
(a) seeking property at the price and terms stated in the brokerage
agreement or at a price and terms acceptable to the buyer, except that the
licensee is not obligated to seek additional properties unless the brokerage
agreement provides otherwise for a buyer once the buyer becomes a party
to a contract of sale;
(b) presenting in a timely manner all offers and counteroffers to
and from the buyer;
(c) disclosing to the buyer all relevant facts concerning the
transaction which are actually known to the licensee or, if acting in a
reasonable manner, should have been known to the licensee, except as
directed otherwise in this section. Nothing in this chapter shall limit a
buyer's obligation to inspect the physical condition of the property which
the buyer may purchase;
(d) advising the buyer to obtain expert advice on material matters
that are beyond the expertise of the licensee;
(e) accounting in a timely manner, as required by this chapter, for
all money and property received in which the buyer has or may have an
interest;
(3) exercising reasonable skill and care in discharging the buyer's
agent's agency duties;
(4) complying with all provisions of this chapter and with any
regulations promulgated by the department;
(5) complying with all applicable federal, state, or local laws, rules,
regulations, and ordinances related to real estate brokerage, including laws
which relate to fair housing and civil rights;
(6) preserving confidential information provided by the buyer
during the course of or following the agency relationship that might have
a negative impact on the buyer's real estate activity unless:
(a) the buyer to whom the confidential information pertains,
grants consent to disclose the information; or
(b) disclosure is required by law; or
(c) disclosure is necessary to defend the licensee against an
accusation of wrongful conduct in a proceeding before the commission or
before a professional association or professional standards committee.
No cause of action may arise against a licensee for disclosing
confidential information in compliance with subsections (H)(6)(a), (b), or
(c).
(I) A licensee acting as a buyer's agent may offer properties which
interest his buyer client to other potential buyers.
(J) A licensee acting as a buyer's agent may not offer a subagency
relationship to other brokers or offer to compensate another broker who
represents a seller without the knowledge and consent of the buyer client.
(K) A licensee who represents a buyer shall treat all prospective sellers
honestly and may not knowingly give them false or misleading
information about the buyer's ability to perform the terms of a transaction.
A buyer's agent is not obligated to discover latent defects in property or
to advise his clients on matters outside the scope of his real estate
expertise. A buyer's agent, his company, and the broker-in-charge are not
liable to a seller for providing the seller with false or misleading
information if that information was provided to the licensee by his client
and the licensee did not know or have reasonable cause to suspect the
information was false or incomplete.
(L) A licensee who represents one party to a real estate transaction
may provide assistance to other parties to the transaction by performing
ministerial acts such as writing and conveying offers, and providing
information and aid concerning other professional services not related to
the real estate brokerage services being performed for a client. Performing
ministerial acts does not create an agency relationship.
(M) A licensee may act as a disclosed dual agent only with the prior
informed and written consent of all parties. Consent is presumed to be
informed if a party signs a completed copy of the agency disclosure form
prescribed by the commission. The form shall specify the transaction in
which a licensee shall serve as dual agent and shall state:
(1) that in acting as a dual agent, a licensee represents clients whose
interest may be adverse and that agency duties are limited;
(2) that the dual agent may disclose any information gained from
one party to another party if the information is relevant to the transaction,
except if the information concerns:
(a) the willingness or ability of a seller to accept less than the
asking price;
(b) the willingness or ability of a buyer to pay more than an
offered price;
(c) confidential negotiating strategy not disclosed in an offer as
terms of a sale;
(d) the motivation of a seller for selling property or the
motivation of a buyer for buying property.
(3) that the clients may choose to consent to disclosed dual agency
or may reject it;
(4) that the clients have read and understood the agency agreement
and the agency disclosure form and acknowledge that their consent to
dual agency is voluntary.
(N) A subagent is a designated broker and all associated licensees
engaged by a broker of another company to act as agent for his client. A
subagent owes the same duties and responsibilities to the client as the
client's primary broker pursuant to subsections (C) and (H).
(O) Prospective buyers of real estate who do not choose to establish an
agency relationship with a licensee but who use the services of the
licensee are considered customers and shall receive the following:
(1) a meaningful explanation of agency relationships in real estate
transactions including the customer's right to choose no representation by
licensee;
(2) an explanation of scope of services to be provided by licensee;
(3) fairness, honesty, and accurate information in all dealings.
(P) The provisions of this section which are inconsistent with
applicable principles of common law shall supersede the common law,
and the common law may be used to aid in interpreting or clarifying the
duties described in this section. Except as otherwise stated, nothing in the
section precludes an injured party from bringing a cause of action against
licensees, their companies, or their brokers-in-charge.
Section 40-57-139. (A) A licensee shall provide in a timely manner
to all buyers and sellers with whom the licensee works:
(1) a meaningful explanation of agency relationships in real estate
transactions;
(2) a completed agency disclosure form prescribed by the
commission indicating whom the licensee shall represent in a real estate
transaction.
(B) A licensee who becomes a seller's agent shall provide a completed
agency disclosure form to the seller at the time the listing is obtained and
signed.
(C) A licensee who becomes a buyer's agent shall provide a completed
agency disclosure form to the buyer at the time an agency agreement is
signed.
(D) A licensee who becomes a disclosed dual agent shall provide to
both buyer and seller a completed agency disclosure form in accordance
with Section 40-57-137.
(E) A licensee who begins working with a potential buyer shall
provide to the potential buyer a completed agency disclosure form at the
first substantive contact. At the time of contact, it must be established
between licensee and potential buyer whether the buyer will be a
'customer' or 'client'. Substantive contact must be the earlier of:
(1) prequalifying by requesting specific financial information in
order to determine ability to conclude a real estate transaction; or
(2) prior to showing real estate to a prospective buyer, other than at
an open house.
(F) If first contact occurs over the telephone, a licensee shall provide
a buyer with the completed agency disclosure form at the first meeting.
Section 40-57-140. A real estate broker and all associated licensees
owe no duty or obligation to a client following termination, expiration,
completion, or performance of an agency agreement, except the duties of:
(1) accounting in a timely manner for all money and property
related to and received during the relationship; and
(2) treating as confidential any information provided by the client
during the course of the relationship that could have a negative impact on
the client's real estate activity, except as provided for in Sections
40-57-137(C)(6) and 40-57-137(H)(6).
Section 40-57-145. (A) In addition to Section 40-1-110, the
commission may deny issuance of a license to an applicant or may take
disciplinary action against a licensee who:
(1) makes a substantial misrepresentation involving a real estate
transaction;
(2) makes false promises of a character likely to influence,
persuade, or induce;
(3) pursues a continued and flagrant course of misrepresentation or
makes false promises through associated licensees or any medium of
advertising or otherwise;
(4) in the practice of real estate demonstrates bad faith, dishonesty,
untrustworthiness, or incompetency in a manner as to endanger the
interest of the public;
(5) represents or attempts to represent a real estate broker other than
his broker-in-charge or property manager-in-charge without the express
knowledge and written consent of the employing broker-in-charge or
property manager-in-charge;
(6) guarantees or authorizes and permits any associated licensee to
guarantee future profits from the resale of real estate;
(7) makes a dual set of contracts, written or otherwise, by stating a
sales price higher than the actual sales price in an effort to obtain a larger
loan from a lender or lending institution or for the purpose of
misinforming a governmental agency or any other reason;
(8) is convicted of forgery, embezzlement, breach of trust, larceny,
obtaining money or property under false pretense, extortion, fraud,
conspiracy to defraud, or any other offense involving moral turpitude, or
pleading guilty or nolo contendere to any such offense in a court of
competent jurisdiction of this State, any other state, or any federal court;
(9) fails to report to the department in writing by certified mail,
within ten days, notice of conviction of a crime provided for in item (8);
(10) fails, within a reasonable time, to account for or to remit any
monies coming into his possession which belong to others;
(11) pays a commission or compensation to an unlicensed individual
for conducting activities requiring a license as defined in this chapter;
(12) violates any provision of law relating to a buyer's freedom of
choice in choosing an attorney, insurance agent, title insurance agent, or
any other service provider to facilitate the buyer's real estate transaction;
(13) fails to disclose in accordance with Section 40-57-139 the party
or parties for whom the licensee will be acting as an agent in a real estate
transaction;
(14) receives compensation from more than one party except with the
full knowledge and written consent of all parties;
(15) represents more than one party in a real estate transaction
without the full written knowledge and consent of all parties the licensee
represents as provided in Section 40-57-137(M);
(16) acts in the dual capacity of agent and undisclosed principal in
a real estate transaction;
(17) accepts deposit money which is to be delivered to the licensee's
principal in a real estate transaction without informing the payor and
having the payor acknowledge in writing who will hold the money
received by the licensee;
(18) issues a check in connection with his real estate business which
is returned for insufficient funds or closed account;
(19) fails to disclose in accordance with Section 40-57-137 any
material facts concerning a real estate transaction;
(20) violates any provision of this chapter or a regulation
promulgated under this chapter;
(21) violates a rule or order of the commission.
(B) If after an investigation, charges of a violation are brought against
a licensee, the broker-in-charge or property manager-in-charge must be
notified of the charges.
Section 40-57-150. (A) Investigations must be conducted in
accordance with Section 40-1-80.
(B) A restraining order must be obtained in accordance with Section
40-1-100.
(C)(1) Whenever the department has reason to believe that a violation
of this chapter has occurred, an investigation must be initiated within
thirty days.
(2) A hearing on the charges must be at the time and place
designated by the commission and must be conducted in accordance with
the Administrative Procedures Act.
(3) The commission shall render a decision and shall serve
immediate notice, in writing, of the commission's decision to the applicant
or licensee charged. The commission also shall state in the notice the date
upon which the ruling or decision becomes effective.
(4) The department shall maintain a public docket or other
permanent record in which must be recorded all orders, consent orders, or
stipulated settlements.
(D) A licensee may voluntarily surrender his license in accordance
with Section 40-1-150.
(E)(1) The commission may impose disciplinary action in accordance
with Section 40-1-120.
(2) Upon determination by the commission that one or more of the
grounds for discipline exists, as provided for in Section 40-1-110 or
Section 40-57-140, the commission may impose a fine of not less than one
hundred or more than one thousand dollars for each violation.
(3) Nothing in this section prevents a licensee from voluntarily
entering into a consent order with the commission wherein violations are
not contested and sanctions are accepted.
Section 40-57-170. (A) Service of a notice provided for by law upon
a nonresident licensed under this chapter or upon a resident who, having
been licensed, subsequently becomes a nonresident or after due diligence
cannot be found at his usual abode or place of business in this State, may
be made by leaving with the director of the Department of Labor,
Licensing and Regulation a copy of the notice, and accompanying
documents. A copy of the notice, any accompanying documents, and a
certified copy of the service on the director must be mailed to the licensee
at his last known address, return receipt requested. The director shall
keep a record of the day of the service of the notice and the return receipt
must be attached to and made part of the return of service of the notice by
the commission.
(B) A continuance may be given in a hearing under this chapter for
which notice is given pursuant to this section so as to afford the licensee
a reasonable opportunity to appear and be heard.
Section 40-57-180. (A) The department may not be involved in the
resolution of disputes between licensees over the payment or division of
commission.
(B) A resident licensee may pay a part of his commission on a
cooperative basis to a licensee of another state or jurisdiction if that
licensee does not conduct in this State any of the negotiations for which
a fee, compensation, or commission is paid.
(C) The department may conduct periodic inspections of the offices of
licensees in order to assist with and to ensure compliance with this
chapter.
(D) It is the responsibility of a licensee to keep on file with the
department a current mailing address.
(E) No cause of action may arise against an owner of real estate or
agent of any party to a transaction for failure to disclose in a transaction
that:
(1) the subject real estate is or was occupied by an individual who
was infected with a virus or any other disease which has been determined
by medical evidence as being highly unlikely to be transmitted through
occupancy of a dwelling place either presently or previously occupied by
the infected individual; or
(2) the death of an occupant of a property has occurred or the
manner of the death.
(F) Nothing in subsection (E) precludes an action against an owner of
real estate or agent of the owner who makes intentional
misrepresentations in response to direct inquiry from a buyer or
prospective buyer with regard to psychological impacts or stigmas
associated with the real estate.
(G) The commission shall establish and publish standards relevant to
the approval and conduct of education required by this chapter.
(1) The department shall review, approve, and regulate education
courses required by this chapter and providers and instructors of these
courses including, but not limited to, accredited colleges, universities,
private business entities, organizations, schools, associations, and
institutions.
(2) The department may deny, reprimand, fine, suspend, or revoke
the approval of an education provider or instructor if the department finds
that the education provider or instructor has violated or failed to satisfy
the provisions of this chapter or the regulations and standards
promulgated pursuant to this chapter.
(3) Application by providers seeking approval to offer and conduct
educational instruction or application by instructors must be made on a
form prescribed by the department and accompanied by applicable fees
not less than sixty days before a course offering and must be approved by
the department before the commencement of any instruction.
(4) If an application for provider, instructor, or course is not
approved, the reason must be detailed and the applicant must be given
thirty days to respond.
(5) Upon approval, certificates must be issued to providers, courses,
and instructors to be renewed biennially.
(6) Approved courses must be taught by approved instructors who
are qualified and have demonstrated knowledge of the subject matter to
be taught as well as the ability to teach.
(7) Approved instructors shall attend annual instructor development
workshops sponsored by the department whenever possible or provide
evidence of equivalent hours of continuing education which increases
their knowledge of either the subject content in their area of expertise or
their teaching techniques.
Section 40-57-190. Payment and collection of costs associated with
investigations and prosecution of violations under this chapter must
comply with Section 40-1-170.
Section 40-57-200. Imposition and collection of all costs and fines
imposed pursuant to this chapter must comply with Section 40-1-180.
Section 40-57-210. The provisions of Section 40-1-190 pertaining to
privileged communications, whether written or oral, made by or on behalf
of a person apply.
Section 40-57-220. (A) It is unlawful for a person to act as a real
estate broker, real estate salesman, or property manager or to advertise or
assume to act as such without first having obtained a license issued by the
Real Estate Commission. A person violating this subsection is guilty of
a misdemeanor and, upon conviction, must be fined not more than five
hundred dollars or imprisoned for not more than six months, or both.
(B) A real estate broker, salesman, or property manager who fails to
renew or register his license annually and continues to engage in such
business is guilty of a misdemeanor and, upon conviction, must be fined
not more than five hundred dollars or imprisoned not more than six
months, or both.
Section 40-57-230. A civil action may be brought for violations of
this chapter as provided for violations of Title 40, Chapter 1, Article 1 in
accordance with Section 40-1-210.
Section 40-57- 240. This chapter does not apply to:
(1) the sale, lease, or rental of real estate by an unlicensed owner of
real estate who owns any interest in the real estate if the interest being
sold, leased, or rented is identical to the owner's legal interest;
(2) an attorney at law acting within the scope of his duties involved
in the legal representation of his client/owner;
(3) agencies and instrumentalities of the state or federal government
and their employees acting within the scope of their official duties;
(4) foresters registered under Chapter 27, Title 48, if the sale of any
land is merely incidental to the sale of timber on the land;
(5) court-appointed receivers and trustees while acting within the
scope of their appointment.
Section 40-57-250. If a provision of this chapter or the application of
a provision of this chapter to a person or circumstance is held invalid, the
invalidity does not affect other provisions or applications of this chapter
which can be given effect without the invalid provision or application, and
to this end, the provisions of this chapter are severable."
Affidavits accompanying deeds
SECTION 2. Section 12-24-70 of the 1976 Code, as added by Section
57A, Part II, Act 458 of 1996, is amended to read:
"Section 12-24-70. (A) Unless the total value of the realty is set
forth explicitly in the deed, an affidavit must accompany every deed
presented for recording and must set forth the true, full, and complete
value of the realty as defined in Section 12-24-30. In addition, the clerk
or register of mesne conveyances may require any other information
considered necessary. However, the clerk or register of mesne
conveyances, at his discretion, may waive the affidavit requirement.
If the deed is exempt under Section 12-24-40, the affidavit must state
that the deed is exempt and state the reason for the exemption. This
affidavit must be signed by a responsible person connected with the
transaction and the affidavit must state that connection.
(B) The clerk of court or register of mesne conveyances must file these
affidavits in his office.
A person required to furnish the affidavit who wilfully furnishes a false
or fraudulent affidavit is guilty of a misdemeanor and, upon conviction,
must be fined not more than one thousand dollars or imprisoned not more
than one year, or both."
Fees continue in effect
SECTION 3. Notwithstanding Section 40-57-70 of the 1976 Code, as
amended by this act, fees for the licensing and regulation of real estate
brokers, salesmen, and property managers on June 30, 1997, remain in
effect until revised by the South Carolina Real Estate Commission in
accordance with Chapter 57, Title 40 of the 1976 Code, as amended by
this act.
Time effective
SECTION 4. Upon approval by the Governor, this act takes effect
January 1, 1998.
Became law without the signature of the Governor -- 5/22/97. |