Current Status Bill Number:4861 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19960402 Primary Sponsor:Boan All Sponsors:Boan Drafted Document Number:pfm\9185ac.96 Companion Bill Number:1279 Residing Body:House Date of Last Amendment:19960613 Subject:Real estate, property managers; uniform framework revised
Body Date Action Description Com Leg Involved
______ ________ _______________________________________ _______ ____________
Senate 19960627 Read third time, returned to House
with amendment
Senate 19960626 Continued the Bill
Senate 19960613 Amended, read second time
Senate 19960613 Reconsidered vote whereby
read second time with notice of
general amendments
Senate 19960613 Amended, read second time,
ordered to third reading
with notice of general amendments,
carrying over all amendments
to third reading
Senate 19960523 Recalled from Committee, 12 SLCI
placed on the Calendar
Senate 19960502 Introduced, read first time, 12 SLCI
referred to Committee
House 19960502 Read third time, sent to Senate
House 19960501 Amended, read second time
House 19960424 Committee report: Favorable with 26 HLCI
amendment
House 19960402 Introduced, read first time, 26 HLCI
referred to Committee
View additional legislative information at the LPITS web site.
Indicates Matter Stricken
Indicates New Matter
AMENDED AND READ SECOND TIME
June 13, 1996
H. 4861
S. Printed 6/13/96--S.
Read the first time May 2, 1996.
TO AMEND CHAPTER 57, TITLE 40, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE LICENSURE AND REGULATION OF REAL ESTATE BROKERS, COUNSELORS, SALESMEN, APPRAISERS, AUCTIONEERS, AND PROPERTY MANAGERS, SO AS TO REVISE THE CHAPTER TO CONFORM TO A UNIFORM FRAMEWORK FOR THE ORGANIZATION AND OPERATION OF PROFESSIONAL AND OCCUPATIONAL BOARDS.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 57, Title 40 of the 1976 Code is amended to read:
SECTION 40-57-10. As used in this chapter:
(1) `Broker' means any person who for a fee, commission, or other valuable consideration, or with the intent or expectation of receiving a fee, commission, or consideration, negotiates or attempts to negotiate the listing, sale, auction, purchase, exchange, or lease of any real estate or of the improvements thereon, or negotiates or attempts to negotiate, or solicits or attempts to solicit, a referral with respect to the foregoing activities, or collects rents or attempts to collect rents, or who advertises or holds himself out as engaged in any of the foregoing activities. The term includes the activity provided in subsections (3) and (4) of this section. The term also includes any person employed by or on behalf of the owner of real estate to conduct the sale, auction, leasing, or other disposition thereof at a salary or for a fee, commission, or any other consideration. It also includes any person who engages in the business of charging an advance fee or contracting for collection of a fee in connection with any contract whereby he undertakes primarily to promote the sale of real estate through its listing in a publication issued primarily for such purpose or for referral of information concerning the real estate to brokers, or both.
(2) `Broker-in-charge' means the broker who is designated as having the responsibility over the actions of all brokers, salesmen, and property managers licensed under him and also the responsibility, control, and liability over any real estate trust or escrow accounts.
(3) `Salesman' means any person employed or engaged under contract by or on behalf of a licensed broker to participate in any activity included in subsection (1) of this section for compensation or otherwise. The term includes activity provided in subsection (4) of this section.
(4) `Property manager' means any person who for a fee, commission, or other valuable consideration, or with the intent or expectation of receiving a fee, commission, or consideration, negotiates, or attempts to negotiate the rental, exchange, or leasing of any real estate or of the improvements thereon; or the listing of exchanges, rentals, or leases; or collects rents or attempts to collect rents; or who advertises or holds himself out as engaged in any of the foregoing activities.
The term also includes any person who engages in the business of charging an advance fee or contracting for collection of a fee in connection with any contract whereby he undertakes to promote the renting or leasing through its listing in a publication issued primarily for this purpose, or for referral of information concerning the rentals or leases.
An employee of the owner of rental property may perform the following duties without securing a property manager license. Such employee to be exempt from licensing is restricted as follows:
1. Must be an employee of the owner whose compensation for services shall be on a salary basis and not on a commission basis.
2. Employee may only exhibit a rental property to prospective tenants, accept applications for leases, and furnish such prospective tenants with information relative to the rental of such units. The activities must be further restricted as follows:
(a) No binding contracts may be negotiated, drawn, or signed by the employee.
(b) The employee may only accept and receipt for rental payments or deposits that are made payable to the owner.
(c) The employee may not hold himself out as a property manager.
(5) `Property manager-in-charge' means the property manager who is designated as having the responsibility over the actions of all property managers licensed under him and also the responsibility, control, and liability over any real estate trust or escrow accounts.
(6) `Person' means individuals, corporations, partnerships, or associations, foreign and domestic.
(7) `Real estate' means leaseholds, as well as any other interest in land, whether corporeal, incorporeal, freehold, or nonfreehold, and whether the real estate is situate in this State or elsewhere.
SECTION 40-57-20. It is unlawful for any person to act as a real estate broker, counsellor, real estate salesman, property manager, or real estate auctioneer or to advertise or assume to act as such without first having obtained a license issued by the Real Estate Commission. Any person violating this provision is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not more than five hundred dollars or by imprisonment for a term of not more than six months, or both, in the discretion of the court.
SECTION 40-57-30. The provisions of this chapter do not apply to any transaction involving the sale, rental, or leasing of real estate by anyone who is the owner thereof or who owns any interest therein, if the legal ownership interest in the real estate being sold, rented, or leased is identical to the owner's legal interest, or to the attorney at law of the owner acting within the scope of his duties. Ownership of stock in a corporation is not ownership of an interest in real estate owned by the corporation and does not exempt the stockholder from the provisions of this chapter, unless the stockholder owns or controls at least ten percent of the stock of the corporation.
SECTION 40-57-40. The provisions of this chapter are applicable only to those persons holding themselves out to the public as real estate brokers, counsellors, auctioneers, real estate salesmen, and property managers and shall not apply to agencies and instrumentalities of the state or federal government nor to employees of any lender or public officials making appraisals for federal, state, and local units of the government.
SECTION 40-57-50. The legislative delegations, including the Senators of the counties comprising each congressional district shall select a person experienced in real estate transactions to serve on the Real Estate Commission of South Carolina to establish the policy, and to issue general rules and regulations in carrying out the provisions of this chapter. The members of the commission shall serve for terms of four years, or until their successors shall have been selected and qualified. The members of the commission shall select one member from the State at large, and shall elect a chairman and vice-chairman from their membership. In addition to the real estate members on the board effective July 1, 1978, two persons not professionally engaged in the real estate business shall be appointed to the board by the Governor, with the advice and consent of the Senate. The terms of the public members shall be for four years and until successors are appointed and qualify. The two public members shall be appointed to assume office July 1, 1978.
SECTION 40-57-60. The Real Estate Commission shall receive no salary, but shall be allowed such per diem, subsistence and mileage as is authorized by law for members of boards and commissions.
SECTION 40-57-70. In order to carry out the provisions of this chapter, the Real Estate Commission shall retain such fees and other funds as may come into its possession.
SECTION 40-57-80. The Director of the Department of Labor, Licensing, and Regulation shall appoint any employees as may be necessary to carry out the work of the Real Estate Commission and the South Carolina Real Estate Appraisers Board defined in Section 40-60-20.
SECTION 40-57-90. Licenses as real estate broker, counsellor, real estate salesman, auctioneer, or property manager must be granted only to persons who submit satisfactory proof to the commission that they are trustworthy and bear a good reputation for honesty and fair dealing, and are competent to transact the business of a real estate broker, counsellor, real estate salesman, auctioneer, or property manager in that manner as to safeguard the interest of the public. A person applying for a license or an examination shall first submit to a credit report and satisfy requirements established by regulation. A real estate salesman must be employed by a real estate broker-in-charge in order to be licensed.
SECTION 40-57-100. (1) Any person desiring to act as a real estate broker, counsellor, salesman, property manager, or auctioneer shall file with the Real Estate Commission an application in writing upon that form and with that detail as the South Carolina Real Estate Commission prescribes, and each applicant shall first pass to the satisfaction of the commission the examination prescribed, unless he is exempt therefrom.
(2) Prerequisites for taking an examination for the broker's license are a minimum of three years of actual experience immediately preceding application as a licensed real estate salesman in this State or in another state having similar requirements and successful completion of at least ninety hours of instruction, including time spent on examinations. The ninety hours include the required sixty hours of instruction for a real estate salesman's license in the basic fundamentals of real estate and other related matters, all as specified by the Real Estate Commission and conducted by:
(a) a university or duly accredited college wherever situated if the credits were earned within five years prior to license application. For purposes of computing required hours of classroom instruction, one credit equals ten classroom hours; or
(b) a bona fide business school situated in this State and approved by the commission; or
(c) an institution, organization, or association approved by the commission; or
(d) correspondence where the course of instruction is part of an extension department of an accredited college or university.
(3) In lieu of the above prerequisites for the taking of a broker's license examination, an applicant may furnish to the commission evidence of one of the following:
(a) a baccalaureate degree with a major in real estate from an accredited college or university, or a Juris Doctor, or Bachelor of Laws degree;
(b) proof acceptable to the commission of at least five years of equivalent experience preceding license application in business activities closely related to real estate transactions.
(4) Upon satisfactorily passing the broker's examination, the applicant shall apply for his broker's license within ninety days from the examination date. Failure to do so will result in the applicant being required to reapply and be reexamined for his broker's license.
(5) As a prerequisite to taking the first year real estate sales examination, every applicant shall furnish evidence satisfactory to the Real Estate Commission of successful completion of thirty classroom hours of instruction in the fundamentals of real estate as prescribed by subsection (2). Upon passing the first year real estate sales examination, a first year real estate sales license must be immediately issued.
(6) Within one year of passing the first year exam each applicant shall satisfactorily complete an additional thirty hours of instruction in order to qualify for the final sales examination. The applicant also shall have held his first year real estate sales license in an active status for no less than a total of twelve months prior to taking the final sales examination and his license must be active at the time of taking the examination. The final sales examination must be taken not less than twelve nor more than fifteen months following the first year examination. Failure to meet these requirements will result in the cancellation of the first year sales license.
(7) In lieu of the classroom hours required for a final sales license, an applicant may furnish to the commission one of the following:
(a) satisfactory evidence of at least three years' experience within the past five years in real estate transactions acceptable to the commission;
(b) evidence that he has successfully completed at least six credit hours in real estate or real estate related subjects at an accredited college or university;
(c) evidence of a Juris Doctor or Bachelor of Laws degree.
(8) As a prerequisite to taking the property manager's examination, every applicant shall furnish evidence satisfactory to the Real Estate Commission of successful completion of thirty classroom hours of instruction in the fundamentals of real estate property management, all as specified by the Real Estate Commission and conducted by:
(a) a university or duly accredited college wherever situated, if the credits were earned within five years prior to license application. For purposes of computing required hours of classroom instruction, one credit equals ten classroom hours; or
(b) a bona fide business school situated in this State and approved by the commission; or
(c) an institution, organization, or association approved by the commission; or
(d) correspondence where such course of instruction is part of an extension department of an accredited college or university.
(9) In lieu of the above prerequisites for the taking of a property manager's license examination, an applicant may furnish to the commission evidence of one of the following:
(a) a baccalaureate degree with a major in real estate from an accredited college or university, or a Juris Doctor, or Bachelor of Laws degree;
(b) satisfactory evidence of at least three years' experience within the past five years in business activities closely related to real estate property management transactions.
SECTION 40-57-110. In addition to the proof of honesty, integrity, truthfulness, and good reputation of an applicant for a license, either real estate broker, counsellor, salesman, property manager, or auctioneer, the applicant shall submit to a written examination to be prepared and conducted by the commission or an institution designated by the commission.
SECTION 40-57-115. (A) The commission, through its regulations and guidelines, shall establish standards relative to the establishment and conducting of all education courses required by this chapter and the review, approval, or regulation of schools, organizations, associations, institutions, or instructors offering these courses including, but not limited to, sponsorship by accredited colleges, universities, and private business entities and organizations; establishment, approval, and review of curriculum; instructors; hours of attendance; classroom facilities; enrollment and cancellation policies; texts; examinations; certificates of completion; and other operating procedures.
(B) The commission, by regulation, shall establish reasonable fees relative to the review, approval, or regulation of schools, organizations, associations, institutions, or instructors offering the education courses required by this chapter.
(C) The commission may deny, reprimand, fine, suspend, or revoke the approval of an instructor or school, organization, association, institution, or other educational provider if, after a hearing, the commission finds that the applicant, instructor, or educational provider has violated or failed to satisfy the provisions of this chapter or the regulations and guidelines established under this chapter.
SECTION 40-57-120. The commission shall issue licenses for three classifications: one for each real estate broker; one for each real estate salesman; and one for each property manager. The commission shall issue designated licenses within each classification as necessary and as established by regulation. No person may be licensed in more than one classification at any one time.
SECTION 40-57-130. This chapter shall not apply to foresters registered under the provisions of Chapter 27 of Title 48, so long as the sale of any land is merely incidental to the sale of timber thereon.
SECTION 40-57-140. (A) A nonresident of this State may become a real estate broker, real estate salesman, or property manager upon complying with all the provisions and conditions of this chapter. A person who is licensed as a real estate broker, real estate salesman, or property manager in another state, territory of the United States, or the District of Columbia shall submit a certificate of licensure from the real estate regulatory authority from the other jurisdictions at the time of filing an application for examination and copies of the records of any disciplinary actions taken against the applicant's license. In the application for examination, all questions of equivalency of academic and experience requirements of other states, territories, or the District of Columbia must be determined by the commission and, at the discretion of the commission, the nonresident applicant must comply with additional requirements specified by the commission.
(B) The commission may enter into reciprocal agreements with real estate regulatory authorities of other states which provide for waivers of education requirements or examinations if the commission considers the education and examination requirements of another state to be substantially equivalent to the requirements of this chapter and its regulations.
(C) A nonresident real estate salesman license may not be granted to an applicant unless that applicant is affiliated with a resident or nonresident broker licensed by the commission. If a nonresident licensee terminates the affiliation with a broker licensed by the commission, the license of the nonresident is canceled unless he places the license on inactive status or affiliates with another broker licensed by the commission.
(D) A nonresident is not required to maintain a place of business in this State if he maintains an active place of business in the state of domicile. Every nonresident applicant shall file an irrevocable consent that suits and actions may be commenced against the applicant in the proper court in a judicial circuit of the state in which a cause of action may arise or in which the plaintiff may reside, by the service of a process or pleading, authorized by the laws of this State, on the chairman of the commission or any authorized assistant or deputy appointed by the Director of the Department of Labor, Licensing, and Regulation, the consent stipulating and agreeing that the service of the process or pleading must be taken and held in all courts to be as valid and binding as if service had been made upon the applicant in the State of South Carolina. If the process or pleadings mentioned in this chapter are served upon the chairman of the commission or any authorized assistant or deputy appointed by the Director of the Department of Labor, Licensing, and Regulation, it must be by duplicate copies, one of which must be filed in the office of the commission and the other immediately forwarded by the commission by registered or certified mail to the applicant against whom the process or pleadings are directed, at the last known address of the applicant as shown by the records of the commission.
(E)
(1) A resident licensee who becomes a nonresident, within sixty days, must notify the commission in writing of the change in residency and comply with nonresident requirements or place his license on inactive status to avoid cancellation of his license.
(2) A nonresident licensee who becomes a resident of South Carolina, within sixty days, must notify the commission in writing of the change in residency and comply with the requirements of this chapter or place his license on inactive status to avoid cancellation of his license.
(3) Failure to notify the commission of the change in residency and compliance with the requirements of this section is a violation of the license law subject to the penalties as provided by Section 40-57-170.
(F) All nonresident applicants and licensees must comply with all requirements of commission regulations and of this chapter. The commission may adopt regulations necessary for the regulation of nonresident licensees.
SECTION 40-57-145. A nonresident holding a license on the effective date of this act is not required to meet the prelicense education and examination requirements of Sections 40-57-100 and 40-57-110 of the 1976 Code in order to continue to hold a license after that date unless he allows the license to lapse or applies for a license that requires passing a different qualifying examination.
SECTION 40-57-150. The Real Estate Commission is authorized to establish license and application fees by regulation. None of the license fees provided for is in lieu of any business license fees or taxes imposed by a municipality. In addition to the fees authorized by this section, the Commission is authorized to contract with a state-funded institution of higher learning to conduct examinations for the Commission and the institution is authorized to charge and collect examination fees, not to exceed the reasonable cost to conduct examinations, which must be retained by the institution to defray the cost of conducting those examinations.
The Real Estate Commission may allocate a sum of up to five dollars from each real estate broker's, salesman's, and property manager's annual renewal fee to the South Carolina Real Estate Commission Education and Research Fund to be used: (1) to carry out the advancement of education and research for the benefit of those licensed under the provisions of this chapter and for the improvement and increased efficiency of the real estate industry in this State; (2) to provide for the analysis and evaluation of factors which affect the real estate industry in South Carolina; and (3) to provide for the dissemination of the results of the research.
The funds collected from the fee authorized in the above paragraph must be deposited in a special fund by the State Treasurer to be used exclusively for the purposes provided in the above paragraph. Withdrawals from the fund must be made upon the written request of the South Carolina Real Estate Commission.
SECTION 40-57-155. (A) As a condition of license renewal, a broker or sales agent must satisfactorily complete eight hours of approved course instruction biennially as prescribed by the commission by a course provider approved by the commission. The eight hours must include a minimum of two hours of instruction on changes in federal and state law affecting licensees. A licensee having successfully completed a thirty-hour course for qualification as a broker is not required to participate in the continuing education program for that particular year. A licensee who decides to become inactive is not required to participate in the continuing education program but must complete the eight-hour requirement before returning to active status.
(B) A licensee may receive continuing education credit for courses taken under a continuing legal education program, provided such courses relate directly to real estate law in South Carolina and have been preapproved by the commission as meeting the criteria for continuing real estate education. Credit for such courses is subject to approval by the commission.
(C) The commission shall administer the continuing education program and shall approve and regulate courses, instructors, and course providers to implement the purposes of this section. In administering the program, the commission may promulgate regulations to require licensees to provide proof of compliance with the continuing education requirements as a condition of license renewal. The commission may contract with an outside provider for the record keeping services required by this section.
(D) Temporary fees must be charged by and paid to the commission until permanent fees are established by regulation as follows:
(1) an annual filing fee of fifteen dollars;
(2) a fee of fifteen dollars for providing certification to another state of a licensee meeting the South Carolina continuing education requirement;
(3) a fee of one hundred dollars for each course approved;
(4) a fee of one hundred dollars for each instructor approved;
(5) a fee of fifty dollars for each course approval renewal;
(6) a fee of fifty dollars for each instructor approval renewal.
(E) The commission shall promulgate regulations prescribing the overall parameters of the continuing education program.
(F) This section also applies to nonresident licensees. Where applicable, a nonresident licensee who has successfully satisfied the continuing education requirements of his resident state and certifies this information to the continuing education administrator or service is considered to have satisfied the requirements of this section. A nonresident who lives in a state which does not require continuing education must satisfy the South Carolina continuing education requirements.
(G) All information received by an outside contract service provider in the course and scope of his duties is confidential and proprietary and may not be used or disclosed beyond the requirements of the duties imposed upon them by law.
(H) A licensee upon reaching the age of sixty-five, with a minimum of twenty-five years of licensure, is exempt from the requirements of this section.
SECTION 40-57-160. It is the duty of the commission to issue a license to engage in the business of real estate broker, counsellor, salesman, property manager, or auctioneer to all applicants who are duly qualified under, and who comply with, all requirements of this chapter and all regulations of the commission. The license must be in that form and size as the commission prescribes and must not be transferable. The licenses expire annually.
SECTION 40-57-170. (A) The commission may upon its own motion or a verified complaint together with evidence, documentary or otherwise, presented in connection therewith, making out a prima facie case, investigate the actions of any real estate broker, counsellor, salesman, auctioneer, property manager, or any person who has unlawfully assumed to act in either capacity within this State and has the power to suspend, revoke, and cancel any license issued under the provisions of this chapter and assess fines at any time where the licensee has by material misrepresentation obtained a license, or where the licensee is found by the commission to be guilty of any of the following acts:
(1) making any substantial misrepresentation;
(2) making any false promises of a character likely to influence, persuade, or induce;
(3) pursuing a continued and flagrant course of misrepresentation, or making false promises through agents or salesmen or any medium of advertising, or otherwise;
(4) any conduct in a real estate transaction which demonstrates bad faith, dishonesty, untrustworthiness, or incompetency in a manner as to endanger the interest of the public;
(5) acting for more than one party in a transaction without the knowledge of all parties for whom he acts;
(6) acting in the dual capacity of broker and undisclosed principal in any transaction;
(7) representing or attempting to represent, if a salesman, a real estate broker other than his employer without the express knowledge and consent of his employer;
(8) guaranteeing or authorizing or permitting any person to guarantee future profits which may result from the resale of real property;
(9) making of dual sets of contracts, written or otherwise, which would falsify the transaction by stating a sales price higher than the actual sales price in an effort to obtain a larger loan from any lender or lending institution or for the purpose of misinforming any governmental agency;
(10) being convicted in any court of competent jurisdiction of this State, any other state, or any federal court of forgery, embezzlement, breach of trust, larceny, obtaining money or property under false pretense, extortion, fraud, conspiracy to defraud, or any other offense involving moral turpitude, or pleading guilty or nolo contendere to any such offense;
(11) failing, within a reasonable time, to account for or to remit any monies coming into his possession which belong to others;
(12) paying a commission or compensation to any person for performing the services of a real estate broker, salesman, or property manager who has not first secured his license under the South Carolina Real Estate Licensing Act. A South Carolina licensed broker may pay a part of his commission on a cooperative basis to a licensed broker of another state if the nonresident broker does not conduct in this State any of the negotiations for which a fee, compensation, or commission is paid;
(13) failing, if a broker, to place, within forty-eight hours of receipt, excluding Saturdays, Sundays, and bank holidays, any deposit money or other money received by him in a real estate transaction in a separate real estate trust or escrow account maintained by him in a banking institution authorized to do business in this State, wherein the funds must be kept until the transaction is consummated or otherwise terminated, at which time a full accounting thereof must be made by the broker. Records relative to the deposit, maintenance, and withdrawal of the funds must be properly maintained and made available to a representative of the South Carolina Real Estate Commission upon request;
(14) violating any provision of law relating to a buyer's freedom of choice in choosing an attorney, insurance agent, or title insurance agent to handle his real estate transaction;
(15) failing, if a broker or property manager, to deposit all security deposits, damage deposits, advance fees, and rental proceeds received by the broker or property manager within forty-eight hours of receipt, excluding Saturdays, Sundays, and bank holidays, in a separate escrow or real estate trust account so designated. All these funds except rental proceeds shall remain until the lease or rental transaction expires or is terminated, at which time a full accounting must be made by the broker or property manager. Rental proceeds must be disbursed within a reasonable time after deposit and clearance of the deposit by the bank. Records relative to the receipt, deposit, maintenance, and withdrawal of the funds must be properly maintained and made available to a representative of the South Carolina Real Estate Commission upon request;
(16) failing, if a licensee, to report to the commission in writing by certified mail, return receipt requested, within ten days after receipt by the licensee of those convictions set forth in item (10) of this subsection;
(17) a real estate licensee shall disclose on a form approved by the commission for which party he is acting and may not receive compensation from more than one party except with the full knowledge and consent of all parties;
(18) violating any regulation promulgated by the commission.
(B)
(1) The commission may make any public or private investigation which it considers necessary to determine whether any person has violated this chapter or any order or regulation hereunder, or to aid in the enforcement of this chapter or in the prescribing of regulations and forms thereunder.
(2) The commission may require or permit any person to file a statement in writing, under oath or otherwise as the commission determines, as to all facts and circumstances concerning the matter to be investigated.
(3) For the purpose of any investigation or proceeding under this chapter, the commission or any officer designated by regulation may administer oaths or affirmations, and upon its own motion or upon request of any party shall subpoena witnesses, compel their attendance, take evidence, and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence.
(4) Upon failure to obey a subpoena or to answer questions propounded by the investigating officer and upon reasonable notice to all persons affected thereby, the commission, through the Attorney General, may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an order compelling compliance.
(C) The commission may:
(1) issue an order requiring a person to cease and desist from any unlawful practice and to take such affirmative action as in the judgment of the commission will carry out the purposes of this chapter if, after notice and hearing, the commission determines that a person has:
(a) violated any provisions of this chapter.
(b) directly or through any agent or employees knowingly engaged in any false, deceptive, or misleading practices in the sale or rental of real estate, including advertising and promotions.
(c) violated any lawful order or rule of the commission.
(2) make findings of fact in writing that the public interest will be irreparably harmed by delay in issuing an order and in such case may issue a temporary cease and desist order. Prior to issuing the temporary cease and desist order, the commission, whenever possible by telephone or otherwise, shall give notice of the proposal to issue a cease and desist order to the person. Every temporary cease and desist order shall include in its terms a provision that upon request a hearing will be held promptly to determine whether or not it becomes permanent.
SECTION 40-57-180. Before refusing, suspending, or revoking any license and before issuing any public or private reprimand or assessing any fines, the commission shall notify the applicant or licensee of the charges against him and must grant him an opportunity to be heard. The hearing must be held not less than thirty days nor more than ninety days after the applicant or licensee is notified of the charges against him. If charges are brought against a salesman, his broker must also be notified of the charges. Hearing of the charges must be at the time and place designated by the commission and must be conducted in accordance with the State Administrative Procedures Act. The hearing must be attended by at least five members of the Real Estate Commission, including the member from the congressional district in which the applicant or licensee resides.
SECTION 40-57-190. The commission or any authorized assistant or deputy appointed by the Director of the Department of Labor, Licensing, and Regulation shall have power to administer oaths and to issue subpoenas for the attendance of witnesses and the production of books, records, accounts, and papers.
SECTION 40-57-200. The commission shall render a decision on any complaint within sixty days from the final hearing on such complaint and shall give immediate notice in writing of such ruling or decision to the applicant or licensee affected thereby, and where the investigation or hearing shall have been instituted by complaint filed, to the party or parties by whom the complaint was made. If such ruling shall be to the prejudice of, or shall injuriously affect the licensee, the commission shall also state in such notice the date upon which the ruling or decision shall become effective, and such date shall be not less than thirty days after the date of the notice.
SECTION 40-57-210. The commission shall maintain a public docket or other record, in which the commission shall record, from time to time as made, the rulings or decisions upon all complaints filed with the commission, and all investigations instituted by the commission in the first instance, upon or in connection with which any such hearing shall have been had, or in which the licensee charged shall have made no defense.
SECTION 40-57-220. Every applicant or licensee aggrieved by a decision of the commission in refusing, suspending, or revoking any license or in issuing reprimands provided under the provisions of this chapter may appeal from the decision of the commission to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1.
SECTION 40-57-230. After the revocation of any license, no new license shall be issued to the same licensee, within a period of one year from and after the date of such revocation, nor at any time thereafter except upon an affirmative vote of at least a majority of the members of the Commission.
SECTION 40-57-240. Any real estate broker, counsellor, salesman, auctioneer, or property manager who fails to renew or register his license annually and continues to engage in such business is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not more than five hundred dollars or imprisonment of not more than six months, or both, in the discretion of the court.
SECTION 40-57-250. After a hearing as provided for in Section 40-57-170, or after entering a plea of guilty in lieu of hearing, a licensee adjudged to be in violation of the provisions of Section 40-57-170 of this chapter, or of any regulation or order promulgated under the authority of this chapter, may be required by the Commission to pay a penalty of not less than twenty-five dollars nor more than five hundred dollars to be assessed and collected by the Commission in addition to such sanctions as set forth in Section 40-57-170. Any party penalized under this subsection has the right of review as provided for in Section 40-57-220.
SECTION 40-57-270. (A) The fact or suspicion that a property may be or is psychologically impacted, as a result of facts or suspicions that the death of an occupant of the real property has occurred or may have occurred upon the real property, or the manner of death where death has occurred, or that an occupant was inflicted with or died from Human Immuno-deficiency Virus or diagnosed with Acquired Immune Deficiency Syndrome, or any other disease which has been determined by medical evidence to be highly unlikely to be transmitted through the occupancy of a dwelling place is not a material fact that must be disclosed in a real estate transaction.
(B) No cause of action may arise against an owner of real estate or his agent for the failure to disclose to the transferee that the transferred property was psychologically impacted as described in subsection (A) of this section.
(C) This section does not relieve an owner or agent of an obligation to disclose the physical condition of the premises.
(D) Nothing in this section immunizes an owner or his agent from making an intentional misrepresentation in response to a direct inquiry from a transferee or a prospective transferee of real property, concerning psychological impacts or stigmas associated with real property.
SECTION 40-57-280. Notwithstanding any other provision of law:
(1) All monies received by a property manager as agent for his principal in a real estate transaction must be deposited within forty-eight hours of receipt, excluding Saturdays, Sundays, and bank holidays, in a separate escrow or real estate trust account so designated.
(2) All monies received by a broker as agent for his principal in a real estate transaction must be deposited in a separate escrow or real estate trust account so designated as follows:
(a) all cash monies or certified funds must be deposited within forty-eight hours of receipt, excluding Saturdays, Sundays, and bank holidays;
(b) all other monies must be deposited within forty-eight hours of receipt, excluding Saturdays, Sundays, and bank holidays.
(3) All monies received by a broker or property manager and deposited in the escrow or real estate trust account as provided for above must remain there until consummation or termination of the transaction, at which time the broker or property manager shall make a full accounting of it to his principal.
Section 40-57-10. There is created the South Carolina Real Estate Commission under the administration of the Department of Labor, Licensing and Regulation. The purpose of this commission is to regulate the real estate industry so as to protect the public's interest when involved in real estate transactions.
Section 40-57-20. It is unlawful for an individual to act as a real estate broker, real estate salesman, real estate property manager, or to advertise as such without a valid license issued by the department.
Section 40-57-30. For purposes of this chapter:
(1) `Commission' means the group of individuals charged by law with the responsibility of licensing or otherwise regulating real estate within the State of South Carolina.
(2) `Department' means the Department of Labor, Licensing and Regulation.
(3) `Licensee' means an individual currently licensed under the provisions of this chapter.
(4) `Broker' means an individual who for a fee, salary, commission, or other valuable consideration, or who with the intent or expectation of receiving compensation:
(a) negotiates or attempts to negotiate the listing, sale, purchase, exchange, lease, or other disposition of real estate or the improvements thereon;
(b) auctions or offers to auction real estate;
(c) solicits a referral in order to conduct activities set forth in this section;
(d) offers advisory services as a real estate consultant or counsellor;
(e) offers to act as an agent representing a principal in a real estate transaction;
(f) advertises or otherwise holds himself out to the public as being engaged in any of the foregoing activities.
(5) `Broker-in-charge' means the broker who is designated as having responsibility over the actions of all associated licensees and also has the responsibility and control over and liability for any real estate trust accounts.
(6) `Salesman' means a licensee associated with a broker-in-charge who, for compensation, engages in or participates in an activity included in item (4).
(7) `Property manager' means an individual who for a fee, salary, commission, or other valuable consideration, or who with the intent or expectation of receiving compensation:
(a) negotiates or attempts to negotiate the rental or leasing of real estate or improvements thereon;
(b) lists or offers to list and provide services in connection with the leasing or rental of real estate or improvements thereon;
(c) advertises or otherwise holds himself out to the public as being engaged in any of the foregoing activities.
(8) `Property manager-in-charge' means the property manager who is designated as having the responsibility over the actions of associated property managers and also the responsibility and control over and liability for real estate trust accounts.
(9) `Real estate' means land, buildings, and other appurtenances, including all interests in land, whether corporeal, incorporeal, freehold, or nonfreehold, whether the real estate is situate in this State or out-of-state.
(10) `Real estate transaction' means an activity involving the sale, purchase, exchange, or lease of real estate.
(11) `Trust account' means a properly designated bank account established and maintained by a broker-in-charge or a property manager-in-charge to safeguard funds belonging to parties to a real estate transaction. As used in this chapter, `trust account' and `escrow account' shall have the same meaning.
(12) `Office' means the principal office location where a broker-in-charge or a property manager-in-charge is licensed to conduct real estate business.
(13) `Branch office' means a suboffice of a company in which full-service real estate activities are conducted and at which a broker-in-charge or property manager-in-charge is licensed to conduct real estate transactions.
(14) `Client' means a person with whom a licensee has established an agency relationship.
(15) `Customer' means a person with whom a licensee has not established an agency relationship.
(16) `Associated licensee' means a licensee who is affiliated with a broker-in- charge or property manager-in-charge.
Section 40-57-40. (A) The South Carolina Real Estate Commission consists of nine members of whom:
(1) Six members who are professionally engaged in the practice of real estate, one elected from each of the six congressional districts by the legislative delegation, including the Senators, of the counties compromising each of the congressional districts.
(2) Three members representing the public who are not professionally engaged in the practice of real estate, each appointed by the Governor with the advice and consent of the Senate.
(B) Except as provided in subsection (E), commission members serve a term of four years and until their successors are appointed and qualify. No member may serve more than two consecutive full terms. A vacancy on the commission must be filled in the manner of the original appointment for the remainder of the unexpired term.
(C) Before entering upon the discharge of the duties of the office, a member shall take and file with the Secretary of State, or other appropriate office charged with the duties of the Secretary of State as its successor entity, in writing an oath to perform the duties of the office as a member of the commission and to uphold the constitutions of this State and the United States.
(D) A member may be removed from office in accordance with Section 1-3-240.
(E) In order to establish terms which do not expire simultaneously, those members elected under subsection (A)(1) to fill seats which terms expire on June 30, 1996, shall serve for terms which expire as follows: two members on June 30, 1998; two members on June 30, 1999; and two members on June 30, 2000.
Section 40-57-50. The commission annually shall elect from its total membership a chairman, vice-chairman, and other officers the commission determines necessary. The commission may adopt an official seal and shall adopt rules and procedures reasonably necessary for the performance of its duties and the governance of its operations and proceedings.
Section 40-57-60. The commission shall set general policy with regard to the administering and enforcement of this chapter and regulations promulgated under this chapter. Powers and duties include, but are not limited to:
(1) determining the standards for qualifications and eligibility of applicants for licensure;
(2) conducting disciplinary hearings on alleged violations of this chapter and deciding disciplinary actions as provided in this chapter for those found to be in violation;
(3) recommending changes in legislation and promulgating regulations governing the real estate industry relative to the protection of the safety and welfare of the public.
Section 40-57-65. The annual report must be made in accordance with Section 40-1-50 (I).
Section 40-57-70. (A) Fees must be established in accordance with Section 40-1-50(D). Current published fees are in effect until such time as they may be revised by the board in accordance with this section.
(B) For each active license and inactive license not renewed by its expiration date, the department may assess a reinstatement penalty of one hundred dollars per month for each month or part of a month for a period not to exceed six months during which the license may be reinstated.
(C) All application and license fees are payable to the department in advance and must accompany an examination application or a license application. Application fees are nonrefundable.
(D) The department may allocate a sum of up to ten dollars from each licensee's renewal fee to a South Carolina Real Estate Commission Education and Research Fund. The funds collected must be deposited in a special fund by the State Treasurer to be used exclusively for:
(1) the advancement of education and research for the benefit of those licensed under the provisions of this chapter and for the improvement and increased efficiency of the real estate industry in this State;
(2) the analysis and evaluation of factors which affect the real estate industry in this State; and
(3) the dissemination of the results of the research.
Section 40-57-80. To be eligible for licensure as a broker, salesman, or property manager, an applicant shall:
(A) have attained the age of twenty-one if applying for a license as a broker, broker-in-charge, or property manager-in-charge.
(B) have attained the age of eighteen if applying for a license as a salesman or property manager.
(C) submit to a credit report which indicates credit worthiness satisfactory to the commission. If notified of unsatisfactory credit, the applicant shall have sixty days to respond.
(D) be a high school graduate or hold a certificate of equivalency.
(E) submit proof of completion of education and, where applicable, experience requirements as specified in this chapter.
(F) pass the appropriate examination unless exempt.
Section 40-57-90. An application for examination or licensure must be made in writing on a form prescribed by the department and accompanied by all applicable fees.
Section 40-57-100. (A) As a condition for and before applying to take a license examination, an applicant for a salesman, broker, or property manager license shall provide proof of having met the following educational requirements which are valid for five years:
(1) For a salesman's license, completion of thirty hours of classroom instruction in fundamentals of real estate principles and practices. Within one year following licensure, a salesman shall provide proof of satisfactory completion of thirty hours of post-licensing instruction in advanced real estate principles and practices. Failure to complete the post-licensing education within one year will result in cancellation of the license. In lieu of classroom hours required for taking the salesman's license examination, an applicant may furnish to the department evidence of a Juris Doctor, Bachelor of Laws degree, or a baccalaureate degree with a major in real estate from an accredited college or university, or the Commission may, at its discretion, accept proof of at least five years of equivalent experience immediately preceding license application in business activities closely related to real estate transactions;
(2) For a broker's license, completion of ninety hours, including the sixty hours completed for salesman's license, of classroom instruction in advanced real estate principles and practices and related topics plus three years of experience as a licensee. In lieu of the experience and classroom hours required for taking the broker's license examination, an applicant may furnish to the department evidence of a Juris Doctor, Bachelor of Laws degree, or a baccalaureate degree with a major in real estate from an accredited college or university, or the Commission may, at its discretion, accept proof of at least five years of equivalent experience immediately preceding license application in business activities closely related to real estate transactions;
(3) For a property manager's license, completion of thirty hours of classroom instruction in property management principles and practices. In lieu of the classroom instruction required for taking the property manager's examination, an applicant may furnish to the department evidence of a Juris Doctor, Bachelor of Laws degree, or a baccalaureate degree with a major in real estate from an accredited college or university.
(B) In order to determine competency and as a condition for licensure applicants shall submit to appropriate examinations which must be conducted by the department or a designated test provider at times and places specified by the department.
(1) An individual who currently holds a real estate license in another state or jurisdiction or whose real estate license in another state or jurisdiction expired not more than six months prior to application will be required to pass only the state portion of the examination to qualify for licensure.
(2) To become eligible for issuance of a license, an applicant must receive a passing grade on the examination, in accordance with a cut-score determination conducted by the department.
(3) An applicant who fails an examination may be reexamined within the three-month period following initial examination. Should an applicant pass one part of a two-part examination and fail the other, the applicant may be reexamined and pass the failed portion within the succeeding three-month period.
(4) Applicants who pass the examination shall apply for a license within one year or be required to apply for and retake the examination.
(5) The department or test provider is authorized to collect and retain reasonable examination fees. Applicants for the examination by a test provider will pay the fee directly to test provider.
Section 40-57-110. (A) The department shall issue a license in classifications of broker, salesman, or property manager to individuals who apply and who qualify under and comply with the requirements of this chapter. No individual may be licensed in more than one classification at the same time. The license must be in the form and size as the department prescribes and is not transferable.
(B) The department may issue a designated broker-in-charge license to a broker or one qualified to be licensed as a broker and may issue a designated property manager-in-charge license to a licensed property manager or one qualified to be licensed as a property manager upon application on a form prescribed by the department and accompanied by applicable fees; however, no broker-in-charge or property manager-in-charge license shall be issued to or renewed for an applicant unless the applicant:
(1) has an ownership interest in the applicant's company; or
(2) is actively engaged in the operation and management of the company.
(C) Applicants must also submit to a credit report indicating credit worthiness satisfactory to the department. If notified of unsatisfactory credit, the applicant shall have sixty days to respond.
(D) Individuals may not practice real estate until they receive a license issued by the department.
(E) Individuals holding an active broker or salesman license must be licensed under a broker-in-charge who is licensed by the department and may not be licensed during the same period with more than one broker-in-charge. When a licensee becomes disassociated with a broker-in-charge for any reason, the broker-in-charge shall notify immediately the department by letter and furnish a forwarding address.
(F) Individuals holding an active property manager license must be licensed under a property manager-in-charge or broker-in-charge who is licensed by the department or be designated as a property manager-in-charge. A property manager may not be licensed during the same period with more than one property manager-in-charge or broker-in-charge. When a licensee becomes disassociated with a broker-in-charge or property manager-in-charge for any reason, the broker-in-charge or property manager-in-charge shall notify immediately the department by letter and furnish a forwarding address.
(G) After revocation of a license, a new license may not be issued to the same individual within a period of one year from the date of revocation, or at any time thereafter except upon an affirmative vote of a majority of the members of the commission. A person seeking licensure after revocation shall:
(1) submit to the commission satisfactory proof that the person is trustworthy, has a good reputation for honesty and fair dealing, and is competent to transact the business of a real estate licensee;
(2) submit proof of educational qualifications as set forth in this chapter if the proof of educational qualifications on file is more than five years old;
(3) pass the applicable examination; and
(4) meet any other qualifications and conditions which apply to individuals applying for a license and who have never been licensed.
(H) A licensee may place a license on inactive status by informing the department in writing. To maintain an inactive status of the license, the license must be renewed in the same manner as provided for active license renewals. Upon proper compliance with the renewal requirements, a license may remain on inactive status for an indefinite period of time. Individuals seeking to reactivate a license shall apply for the same license classification which was placed on inactive status, pay the appropriate fee, and meet the continuing education requirements as prescribed.
(I) Licenses must be renewed in accordance with Section 40-1-50(E). It is the licensee's responsibility to renew the license whether or not notice is received.
(J) A license which has not been renewed by its date of expiration is lapsed and may be reinstated within six months following expiration upon payment of applicable fees plus penalties.
(K) A license which has lapsed and has not been reinstated by the last day of the sixth month following expiration must be canceled.
Section 40-57-120. (A) The commission may enter into reciprocal agreements with real estate regulatory authorities of other jurisdictions which provide for waivers of education requirements or examinations if the commission considers the education and examination requirements of another jurisdiction to be substantially equivalent to the requirements of this chapter.
(B) An individual applying for a license by reciprocity shall submit an application, license fee, and certification of licensure from the real estate regulatory authority of the jurisdiction where the current or previous license was held. In addition, copies must be provided of the records of any disciplinary actions taken against the applicant's license. The commission, at its discretion, may impose additional requirements with which an applicant shall comply.
(C) A nonresident real estate salesman license may not be granted to an applicant unless that applicant is affiliated with a resident or nonresident broker licensed by the commission. If a nonresident licensee terminates the affiliation with a broker licensed by the commission, the license of the nonresident is canceled unless the licensee places the license on inactive status or affiliates with another broker licensed by the commission.
(D) A nonresident is not required to maintain a place of business in this State if he maintains an active place of business in the state of domicile. Every nonresident applicant shall file an irrevocable consent that suits and actions may be commenced against the applicant in the proper court in a judicial circuit of the state in which a cause of action may arise or in which the plaintiff may reside, by the service of a process or pleading, authorized by the laws of this State, on the chairman of the commission or any authorized assistant or deputy appointed by the Director of the Department of Labor, Licensing and Regulation, the consent stipulating and agreeing that the service of the process or pleading must be taken and held in all courts to be as valid and binding as if service had been made upon the applicant in South Carolina. If the process or pleadings mentioned in this chapter are served upon the chairman of the commission or any authorized assistant or deputy appointed by the Director of the Department of Labor, Licensing and Regulation, it must be by duplicate copies, one of which must be filed in the office of the commission and the other immediately forwarded by the commission by registered or certified mail to the applicant against whom the process or pleadings are directed, at the last known address of the applicant as shown by the records of the commission.
(E) (1) A resident licensee who becomes a nonresident, within sixty days, shall notify the commission in writing of the change in residency and comply with nonresident requirements or place his license on inactive status to avoid cancellation of the license.
(2) A nonresident licensee who becomes a resident of South Carolina, within sixty days must notify the commission in writing of the change in residency and comply with the requirements of this chapter or place his license on inactive status to avoid cancellation of the license.
(3) Failure to notify the commission of the change in residency and compliance with the requirements of this section are violations of the license law subject to the penalties as provided by Section 40-57-170.
(F) All nonresident applicants and licensees must comply with all requirements of commission regulations and of this chapter. The commission may adopt regulations necessary for the regulation of nonresident licensees.
Section 40-57-130. (A) As a condition of active license renewal, a broker or salesman shall provide proof of satisfactory completion biennially of eight hours of instruction in courses approved by the department and taught by instructors approved by the department. The eight hours shall include a minimum of two hours of instruction in current federal and state law affecting brokers and salesmen.
(B) The following are exempt from the mandatory continuing education program:
(1) a broker or salesman who successfully completes a thirty-hour post-licensing course or a licensee who successfully completes the thirty-hour course for qualification as a broker;
(2) a broker or salesman while on inactive status; however, the eight-hour requirement must be completed and proof submitted with an application to return to active status;
(3) instructors of approved courses if they request in writing continuing education credit for time spent teaching or developing approved continuing education courses;
(4) a nonresident broker or salesman who has successfully satisfied the continuing education requirements of the jurisdiction of residence;
(5) a broker or salesman upon reaching the age of sixty years with a minimum of twenty-five years of licensure.
(C) Brokers or salesmen taking more than the required number of hours during a two-year period may not carry forward any excess hours to another renewal period.
(D) A broker or salesman who fails to complete continuing education requirements by the date of license renewal may renew by applying applicable fees, but must immediately be placed on inactive status and may not engage in the practice of real estate while on inactive status. The license may be reactivated upon proof of completion of required continuing education and payment of applicable fees.
Section 40-57-135. (A) The duties of the broker-in-charge or property manager-in-charge are to:
(1) adequately supervise employees or associated licensees and maintain real estate trust accounts;
(2) review and approve all forms of listing agreements, agency agreements, offers, sale contracts, purchase contracts, leases, options, contract addenda, or other routinely used contractual documents;
(3) maintain adequate, reasonable, and regular contact with associated licensees engaged in real estate transactions so as to prevent or curtail practices by a licensee which would violate any provision of Title 40, Chapters 1 and 57, the Interstate Land Sales Practices Act, or the Vacation Time Sharing Plans Act;
(4) instruct employees and associated licensees on the proper handling of trust funds;
(5) be available to the public during normal business hours in order to discuss or resolve complaints and disputes which arise during the course of real estate transactions in which the broker-in-charge or property manager-in-charge or an associated licensee is involved;
(6) ensure that accurate and complete records, as described in this chapter, are maintained for real estate trust accounts;
(7) ensure that backup copies are maintained for computerized real estate trust accounts. Backup copies must be maintained on a data storage medium which is separate from the medium which contains the source documents;
(8) establish and maintain a written office policy in accordance with Section 40-57-138(B).
(B) (1) The broker-in-charge or property manager-in-charge shall establish and maintain an active real estate trust account so designated in the name for which the respective broker-in-charge's or property manager-in-charge's license is issued. Notwithstanding the foregoing provision, the brokers-in-charge or property managers-in-charge of a real estate company with multiple offices may utilize one central trust account.
(2) All monies received by a property manager as agent for his principal in a real estate transaction must be deposited in a separate real estate trust account so designated within forty-eight hours of receipt, excluding Saturdays, Sundays and bank holidays; except that rent monies received by a licensee who is also directly employed by the owner of rental property may be placed in an operating or other similar account, but otherwise must be properly accounted for as provided for in this section.
(3) All monies received by a property manager-in-charge in connection with a real estate rental including, but not limited to, security deposits, pet deposits, damage deposits, and advance rentals (except earned rental proceeds) shall remain in the trust account until the lease or rental transaction expires or is terminated, at which time the monies must be disbursed in accordance with the contract which directs the property manager-in-charge to hold the monies, and a full accounting must be made to the landlord or tenant as appropriate. Earned rental proceeds must be disbursed to the landlord within a reasonable time after clearance of the deposit by the bank.
(4) All monies received by a broker-in-charge as agent for a principal in a real estate sales or exchange transaction must be deposited as follows in a separate real estate trust account so designated:
(a) Cash monies or certified funds must be deposited within forty-eight hours of receipt, excluding Saturdays, Sundays, and bank holidays.
(b) Checks must be deposited within forty-eight hours, excluding Saturday, Sunday, and bank holidays, after acceptance of an offer by the parties to the transaction.
(c) All monies received by a broker-in-charge in connection with a real estate sales or exchange transaction and deposited in the real estate trust account shall remain in the trust account until consummation or termination of the transaction, at which time the monies shall be disbursed in accordance with the contract which directs the broker-in-charge to hold the monies, and a full accounting must be made to the principal.
(5) In the event a dispute arises between buyer and seller concerning the entitlement to and disposition of an earnest money deposit, and the dispute is not resolved by reasonable interpretation of the contract by the parties to the contract, the deposit must be held in the trust account until the dispute is resolved by:
(a) a written agreement which directs the disposition of monies and is signed by all parties claiming an interest in the trust monies. The agreement must be separate from the contract which directs the broker-in-charge or property manager-in-charge to hold the monies;
(b) filing of an interpleader action in a court of competent jurisdiction;
(c) order of a court of competent jurisdiction;
(d) voluntary mediation.
(6) All trust accounts maintained by brokers-in-charge or property managers-in-charge must be located in an insured financial institution authorized to conduct business in South Carolina.
(7) A broker-in-charge or property manager-in-charge shall also maintain, in his designated principal place of business, a recordkeeping system consisting of:
(a) for real estate sales, a journal or an accounting system which records the chronological sequence in which funds are received and disbursed. For funds received, the journal or accounting system shall include the date of receipt, the name of the party from whom the money was received, the name of the principal, identification of the property, the date of deposit and depository, the payee, the check numbers, dates, and amounts. A running balance must be maintained for each entry of a receipt or disbursement. The journal or accounting system shall provide a means of reconciling the accounts;
(b) For property management, a journal or an accounting system containing the same information as stated in item (a) except that the required running balance may be determined at the time of reconciliation;
(c) When managing property, a separate record for each tenant must be maintained which shall identify the unit, the unit owner, amount of rent, due date, security deposit, and all receipts with dates. There also must be maintained an owner's ledger for all properties owned by each owner showing receipts and disbursements applicable to each property managed. All disbursements must be documented by bids, contracts, invoices, or other appropriate written memoranda;
(d) unless other appropriate written memoranda are maintained, trust account deposit documents shall identify the broker-in-charge or property manager-in-charge and the buyer or tenant;
(e) A general ledger identifying security deposits;
(f) A monthly reconciliation of each separate account except where there has been no deposit or disbursement during that month. The reconciliation shall include a written worksheet comparing the reconciled bank balance with the journal balance and with the ledger total to ensure agreement.
(8) All monies received by a licensee in connection with a real estate transaction in which the licensee is engaged for his broker-in-charge or property manager-in-charge must be immediately delivered to the broker-in-charge or property manager-in-charge.
(9) A broker-in-charge or property manager-in-charge may not commingle monies or other property of the principal with the broker-in charge or property manager-in-charge's own money or property, except that a broker-in-charge or property manager-in-charge may maintain a clearly identified amount of his own funds in the trust account to cover bank service charges in order to avoid the closing of the account when no client's monies are on deposit.
(10) Monies received by a broker-in-charge or property manager-in-charge which must be deposited in a trust account may be deposited in an interest-bearing account. Interest earned on these monies may be retained by the broker-in-charge or property manager-in-charge only if:
(a) a person remitting the monies to the broker-in-charge or property manager-in-charge has been informed of the person's right to ownership of the interest but relinquishes the right of ownership by written agreement; and
(b) if part of a preprinted form, the written agreement must be conspicuous and must require initials indicating an affirmative or negative response.
(11) Records required by this chapter shall be held for a minimum of five years and the broker-in-charge or property manager-in-charge shall furnish a copy of the records to a representative of the department upon request. Accounting records to be requested shall include, but are not limited to, journals, ledgers, folios, client subaccounts, tenant accounts, canceled checks, deposit slips, and bank statements.
(C) A licensed broker-in-charge or property manager-in-charge shall establish and maintain a specific office location which shall be accessible by the public during reasonable business hours.
(1) A broker-in-charge or property manager in-charge, in addition to the principal office location, may maintain one or more branch offices under the same company name at a different location. Each branch office must be managed by a broker-in-charge or property manager-in-charge who shall comply with the requirements of subsection (A).
(2) A licensee may not conduct real estate business under any other name or at any address other than the one for which his license is issued. The broker-in-charge or property manager-in-charge shall notify the department by mail within ten days of any change of office name and/or address and enclose appropriate fees.
(3) In the event of the death or medical incapacitation of a broker-in-charge or property manager-in-charge which precludes him from dispatching duties as provided in this chapter, the department may, at its discretion, permit an associated licensee to act as broker-in-charge or property manager-in-charge for no more than six months.
(4) A licensee may not advertise or offer to conduct a real estate transaction involving real estate owned in whole or in part by another person without first obtaining a written agency agreement and when advertising real estate in any medium including site signage, a licensee shall clearly identify the company with which the licensee is affiliated.
(5) When operating under a trade or franchise name, a licensee shall reveal clearly the identity of the franchisee or holder of the trade name.
(6) A licensee clearly shall reveal his licensed status in a transaction involving the purchase, sale, exchange, rental, lease, or auction of real estate. This disclosure must be made before a person's material reliance upon the licensee which may be influenced by the representations of the licensee.
(7) Every broker-in-charge or property manager-in-charge shall maintain for a minimum of five years and shall furnish to the department upon request a written copy of a:
(a) lease;
(b) contract of sale;
(c) listing contract or agency agreement;
(d) option contract;
(e) management agreement;
(f) agency disclosure form;
(g) closing statement;
(h) policy on agency representation;
(i) fair housing policy.
(8) The department may, at its discretion, license the same person as broker-in-charge or property manager-in-charge of more than one company or branch office if the broker-in-charge or property manager-in-charge making the request acknowledges in writing that he understands the duties and can fully assume the responsibility to ensure full compliance with this chapter by each office and the associated licensees.
(D) No licensee shall either directly or indirectly buy for his own account or for a corporation or any other business in which he holds an interest or for a close relative, real estate listed with him or real estate for which he has been approached by the seller or prospective buyer to act as agent, without first making his true position clearly known in writing to all parties involved. Upon request of the department, the licensee shall provide clear evidence of having made this disclosure.
(1) With regard to offers to purchase real estate, a licensee shall:
(a) upon receipt, prepare all offers in writing and promptly present them to the seller;
(b) upon obtaining a written acceptance of an offer, promptly deliver true, executed copies to all parties;
(c) ensure that all of the terms and conditions of the transaction are included in the offer to purchase;
(d) ensure that changes or modifications made during negotiation are in writing and initialed and dated by both parties before proceeding with the transaction.
(2) Every licensee shall ensure that, at closing, both the buyer and the seller in a real estate transaction receive a complete and detailed closing statement properly accounting for all funds paid, received, and expended in connection with the transaction.
(3) A licensee may not allow or create an unreasonable delay in the closing of a transaction or act in a manner which causes failure or termination of a transaction due solely to a dispute among participating licensees concerning the division of a commission.
(4) Any listing or buyers representation agreement that a licensee may enter into shall set forth all material terms of the parties' agency relationship including, but not limited to:
(a) a description of the agent's duties or services to be performed for the principal;
(b) the amount of compensation to be paid or the method to be used in calculating the amount of compensation to be paid;
(c) an explanation of how and when the agent earns his compensation;
(d) an explanation of how compensation will be divided among participating or cooperating brokers, if applicable;
(e) the amount of retainer fees, deposits, or any other money which is collected before the agent's performance of any services on behalf of the principal and an explanation of whether or not, and if so, under what conditions such monies are refundable or payable to or on behalf of the principal;
(f) the duration of the agency relationship, setting forth specific dates for the beginning and ending of the relationship;
(g) the signature of all parties.
(5) In addition to the above requirements, a listing agreement shall:
(a) state the price of the listed property;
(b) not contain a provision requiring a party signing the listing to notify the licensee of his intention to cancel the listing after the definite expiration date;
(c) be clearly defined if intended to be either an `exclusive agency' listing or `exclusive right to sell' listing;
(d) clearly specify any exception or variation in amount of commission to be paid and circumstances which would apply;
(e) be given to the owner at the time of, or directly following, signing.
(E) The management of each multi-unit rental location must be provided by a licensee.
(1) The department at its discretion may permit multiple multi-unit rental property locations to be managed by one licensee.
(2) An unlicensed employee of the owner of a multi-unit rental property or an unlicensed individual who works under the supervision of a licensee is permitted to perform only the following duties:
(a) maintenance;
(b) clerical or administrative support;
(c) collection of rents which are made payable to the owner or real estate company;
(d) showing rental units to prospective tenants;
(e) furnishing published information;
(f) providing applications and lease forms;
(g) receiving applications and leases for submission to the owner or the licensee for approval.
(4) An unlicensed employee of the owner or an unlicensed individual working under the supervision of a licensee may not:
(a) negotiate binding contracts;
(b) vary or deviate from the rental price or other terms and conditions previously established by the owner or licensee when supplying relevant information concerning the rental of property;
(c) approve applications or leases or settle or arrange the terms and conditions of a lease;
(d) indicate to the public that the unlicensed individual is in a position of authority which has the managerial responsibility of the rental property.
(5) Licensees who manage property shall do so under a written management agreement which shall set forth, at a minimum, the following conditions:
(a) names and signatures of authorized parties to the agreement;
(b) property identification;
(c) method of compensation to the licensee;
(d) term, including definite expiration date;
(e) terms and conditions of tenant rental or lease arrangements.
Section 40-57-138. (A) A real estate brokerage company that provides services through an agency agreement for a client is bound by the duties of loyalty, obedience, disclosure, confidentiality, reasonable care, diligence, and accounting as set forth in this chapter. The following are the permissible agency relationships a licensee may establish:
(1) seller agency;
(2) buyer agency;
(3) disclosed dual agency; or
(4) subagency.
(B) The broker-in-charge of a real estate brokerage company shall adopt a written company policy that identifies and describes the types of real estate brokerage agency relationships in which associated licensees may engage. The written policy shall include:
(1) the company's policy regarding cooperation with subagents or buyer agents, or both, and whether the broker offers compensation to these agents;
(2) the scope of services provided to the company's clients;
(3) the scope of services provided to the company's customers;
(4) when and how associated licensees shall explain and disclose their agency relationships with any interested parties to a potential transaction; the explanation and disclosure shall always comply with the minimum requirements set forth in this chapter;
(5) when and how an associated licensee shall explain to clients the potential for the licensee to later act as a disclosed dual agent in specific transactions, as permitted by this chapter;
(6) the company's policy on compliance with state and federal fair housing laws.
(C) On reaching a written agreement to provide brokerage services for a seller of real estate, a seller's agent shall:
(1) perform the terms of the written brokerage agreement made with the seller;
(2) in accordance with subsection (A) above, promote the interest of the seller by performing agency duties which include:
(a) seeking a sale at the price and terms stated in the brokerage agreement or at a price and terms acceptable to the seller, except that the licensee is not obligated to seek additional offers to purchase unless the brokerage agreement provides otherwise while the property is subject to a contract of sale;
(b) presenting in a timely manner all offers and counteroffers to and from the seller, even when the property is subject to a contract of sale;
(c) disclosing to the seller all relevant facts concerning the transaction which are actually known to the licensee or, if acting in a reasonable manner, should have been known to the licensee, except as directed otherwise in this section;
(d) advising the seller to obtain expert advice on matters that are beyond the expertise of the licensee;
(e) accounting in a timely manner, as required by this chapter, for all money and property received in which the seller has or may have an interest;
(3) exercise reasonable skill and care in discharging the licensee's agency duties;
(4) comply with all provisions of this chapter and with any regulations adopted by the department;
(5) comply with all applicable federal, state, or local laws, rules, regulations, ordinances related to real estate brokerage, including laws which relate to fair housing and civil rights;
(6) preserve confidential information provided by the seller during the course of and following the agency relationship that might have a negative impact on the seller's real estate activity unless:
(a) the seller to whom the confidential information pertains grants consent to disclose the information; or
(b) disclosure is required by law; or
(c) disclosure is necessary to defend the licensee against an accusation of wrongful conduct in a proceeding before the commission or before a professional association or professional standards committee.
No cause of action shall arise against a licensee for disclosing confidential information in compliance with subsection (C)(6)(a), (b) or (c).
(D) A licensee acting as a seller's agent may offer alternative properties to prospective buyers. A licensee acting as a seller's agent may also list for sale competing properties.
(E) A licensee acting as a seller's agent may not offer a subagency relationship to other brokers or offer to compensate another broker who represents a buyer without the knowledge and consent of the seller client.
(F) A licensee who represents a seller shall treat all prospective buyers honestly and may not knowingly give them false or misleading information about the condition of the property which is known to the licensee or, when acting in a reasonable manner, should have been known to the licensee. A seller's agent is not obligated to discover latent defects in property or to advise the agent's clients on matters outside the scope of the agent's real estate expertise. A seller's agent, the company, and the broker-in-charge are not liable to a buyer for providing the buyer with false or misleading information if that information was provided to the licensee by his client and the licensee did not know or have reasonable cause to suspect the information was false or incomplete.
(G) Nothing in this chapter shall limit the obligation of the buyer to inspect the physical condition of the property which the buyer may purchase.
(H) On reaching a written agreement to provide brokerage services to a potential buyer of real estate, a buyer's agent shall:
(1) perform the terms of the written brokerage agreement made with the buyer;
(2) in accordance with subsection (A) above, promote the interest of the buyer by performing the buyer's agent's duties which include:
(a) seeking property at the price and terms stated in the brokerage agreement or at a price and terms acceptable to the buyer, except that the licensee is not obligated to seek additional properties unless the brokerage agreement provides otherwise for a buyer once the buyer becomes a party to a contract of sale;
(b) presenting in a timely manner all offers and counteroffers to and from the buyer;
(c) disclosing to the buyer all relevant facts concerning the transaction which are actually known to the licensee or, if acting in a reasonable manner, should have been known to the licensee, except as directed otherwise in this section. Nothing in this chapter shall limit a buyer's obligation to inspect the physical condition of the property which the buyer may purchase;
(d) advising the buyer to obtain expert advice on material matters that are beyond the expertise of the licensee;
(e) accounting in a timely manner, as required by this chapter, for all money and property received in which the buyer has or may have an interest;
(3) exercise reasonable skill and care in discharging the buyer's agent's agency duties;
(4) comply with all provisions of this chapter and with any regulations promulgated by the department;
(5) comply with all applicable federal, state, or local laws, rules, regulations, and ordinances related to real estate brokerage, including laws which relate to fair housing and civil rights;
(6) preserve confidential information provided by the buyer during the course of or following the agency relationship that might have a negative impact on the buyer's real estate activity unless:
(a) the buyer to whom the confidential information pertains, grants consent to disclose the information; or
(b) disclosure is required by law; or
(c) disclosure is necessary to defend the licensee against an accusation of wrongful conduct in a proceeding before the commission or before a professional association or professional standards committee.
No cause of action shall arise against a licensee for disclosing confidential information in compliance with subsections (H)(6)(a), (b) or (c).
(I) A licensee acting as a buyer's agent may offer properties which interest his buyer client to other potential buyers.
(J) A licensee acting as a buyer's agent may not offer a subagency relationship to other brokers or offer to compensate another broker who represents a seller without the knowledge and consent of the buyer client.
(K) A licensee who represents a buyer shall treat all prospective sellers honestly and may not knowingly give them false or misleading information about the buyer's ability to perform the terms of a transaction. A buyer's agent is not obligated to discover latent defects in property or to advise his clients on matters outside the scope of his real estate expertise. A buyer's agent, his company, and the broker-in-charge are not liable to a seller for providing the seller with false or misleading information if that information was provided to the licensee by his client and the licensee did not know or have reasonable cause to suspect the information was false or incomplete.
(L) A licensee who represents one party to a real estate transaction may provide assistance to other parties to the transaction by performing ministerial acts such as writing and conveying offers, and providing information and aid concerning other professional services not related to the real estate brokerage services being performed for a client. Performing ministerial acts does not create an agency relationship.
(M) A licensee may act as a disclosed dual agent only with the prior informed and written consent of all parties. Consent is presumed to be informed if a party signs a completed copy of the agency disclosure form prescribed by the commission. The form shall specify the transaction in which a licensee shall serve as dual agent and shall state:
(1) that in acting as a dual agent, a licensee represents clients whose interest may be adverse and that agency duties are limited;
(2) that the dual agent may disclose any information gained from one party to another party if the information is relevant to the transaction, except if the information concerns:
(a) the willingness or ability of a seller to accept less than the asking price;
(b) the willingness or ability of a buyer to pay more than an offered price;
(c) confidential negotiating strategy not disclosed in an offer as terms of a sale;
(d) the motivation of a seller for selling property or the motivation of a buyer for buying property.
(3) that the clients may choose to consent to disclosed dual agency or may reject it;
(4) that the clients have read and understood the agency agreement and the agency disclosure form and acknowledge that their consent to dual agency is voluntary.
(N) Duties of a subagent: A subagent is a designated broker and all associated licensees engaged by a broker of another company to act as agent for his client. A subagent owes the same duties and responsibilities to the client as the client's primary broker pursuant to subsections 40-57-138 (C) and (H).
(O) Prospective buyers of real estate who do not choose to establish an agency relationship with a licensee but who use the services of the licensee are considered customers and shall receive the following:
(1) a meaningful explanation of agency relationships in real estate transactions including the customer's right to choose no representation by licensee;
(2) an explanation of scope of services to be provided by licensee;
(3) fairness, honesty, and accurate information in all dealings.
(P) The provisions of this section which are inconsistent with applicable principles of common law shall supersede the common law, and the common law may be used to aid in interpreting or clarifying the duties described in this section. Except as otherwise stated, nothing in the section precludes an injured party from bring a cause of action against licensees, their companies, or their brokers-in-charge.
Section 40-57-139. (A) A licensee shall provide in a timely manner to all buyers and sellers with whom they work:
(1) a meaningful explanation of agency relationships in real estate transactions;
(2) a completed agency disclosure form prescribed by the commission indicating whom the licensee shall represent in a real estate transaction.
(B) A licensee who becomes a seller's agent shall provide a completed agency disclosure form to the seller at the time the listing is obtained and signed.
(C) A licensee who becomes a buyer's agent shall provide a completed agency disclosure form to the buyer at the time an agency agreement is signed.
(D) A licensee who becomes a disclosed dual agent shall provide to both buyer and seller a completed agency disclosure form in accordance with Section 40-57-138.
(E) A licensee who begins working with a potential buyer shall provide to the potential buyer a completed agency disclosure form at the first substantive contact. At the time of contact, it must be established between licensee and potential buyer whether the buyer will be a 'customer' or 'client'. Substantive contact must be the earlier of the following:
(1) prequalifying by requesting specific financial information in order to determine ability to conclude a real estate transaction; or
(2) prior to showing real estate to a prospective buyer, other than at an open house.
(F) If first contact occurs over the telephone, licensee shall provide buyer with the completed agency disclosure form at the first meeting.
Section 40-57-140. A real estate broker and all associated licensees owe no duty or obligation to a client following termination, expiration, completion, or performance of an agency agreement, except the duties of:
(1) accounting in a timely manner for all money and property related to and received during the relationship; and
(2) treating as confidential any information provided by the client during the course of the relationship that could have a negative impact on the client's real estate activity, except as outlined in Sections 40-57-138(C)(6) and 40-57-138(H)(6).
Section 40-57-141. (A) In addition to the provisions of Section 40-1-110, the commission may deny issuance of a license to an applicant or may take disciplinary action against a licensee who:
(1) makes a substantial misrepresentation involving a real estate transaction;
(2) makes false promises of a character likely to influence, persuade, or induce;
(3) pursues a continued and flagrant course of misrepresentation, or makes false promises through associated licensees or any medium of advertising, or otherwise;
(4) in the practice of real estate demonstrates bad faith, dishonesty, untrustworthiness, or incompetency in a manner as to endanger the interest of the public;
(5) represents or attempts to represent a real estate broker other than his broker-in-charge or property manager-in-charge without the express knowledge and written consent of the employing broker-in-charge or property manager-in-charge;
(6) guarantees or authorizes and permits any associated licensee to guarantee future profits from the resale of real estate;
(7) makes a dual set of contracts, written or otherwise, by stating a sales price higher than the actual sales price in an effort to obtain a larger loan from a lender or lending institution or for the purpose of misinforming a governmental agency or any other reason;
(8) is convicted of forgery, embezzlement, breach of trust, larceny, obtaining money or property under false pretense, extortion, fraud, conspiracy to defraud, or any other offense involving moral turpitude, or pleading guilty or nolo contendere to any such offense in a court of competent jurisdiction of this State, any other state, or any federal court;
(9) fails to report to the department in writing by certified mail, within ten days, notice of conviction of a crime set forth above;
(10) fails, within a reasonable time, to account for or to remit any monies coming into his possession which belong to others;
(11) pays a commission or compensation to an unlicensed individual for conducting activities requiring a license as defined in this chapter;
(12) violates any provision of law relating to a buyer's freedom of choice in choosing an attorney, insurance agent, title insurance agent, or any other service provider to facilitate the buyer's real estate transaction;
(13) fails to disclose in accordance with Section 40-57-139 the party or parties for whom the licensee will be acting as an agent in a real estate transaction;
(14) receives compensation from more than one party except with the full knowledge and written consent of all parties;
(15) represents more than one party in a real estate transaction without the full written knowledge and consent of all parties the licensee represents as provided in Section 40-57-138(M);
(16) acts in the dual capacity of agent and undisclosed principal in a real estate transaction;
(17) accepts deposit money which is to be delivered to the licensee's principal in a real estate transaction without informing the payor and having the payor acknowledge in writing who will hold the money received by the licensee;
(18) issues a check in connection with his real estate business which is returned for insufficient funds or closed account;
(19) fails to disclose in accordance with Section 40-57-138 any material facts concerning a real estate transaction;
(20) violates any provision of this chapter or a regulation promulgated by this chapter;
(21) violates a lawful rule or order of the commission.
(B) If after an investigation, charges of a license law violation are brought against a licensee, the broker-in-charge or property manager-in-charge must be notified also of the charges.
Section 40-57-150. (A) Investigations must be conducted in accordance with Section 40-1-80.
(B) Restraining orders must be filed in accordance with Section 40-1-100.
(C) (1) Whenever the department has reason to believe that a violation of this chapter has occurred, an investigation must be initiated within thirty days.
(2) A hearing on the charges must be at the time and place designated by the commission and must be conducted in accordance with the Administrative Procedures Act.
(3) The commission shall render a decision and shall serve immediate notice, in writing, of the commission's decision to the applicant or licensee charged therein. The commission shall state also in the notice the date upon which the ruling or decision shall become effective.
(4) The department shall maintain a public docket or other permanent record, in which must be recorded all orders, consent orders, or stipulated settlements.
(D) A licensee may voluntarily surrender his license in accordance with Section 40-1-150.
(E) (1) The commission may impose disciplinary action in accordance with Section 40-1-120.
(2) Upon determination by the commission that one or more of the grounds for discipline exists, as provided for in Section 40-1-110 or Section 40-57-140, the commission may impose a fine of not less than one hundred or more than one thousand dollars for each violation.
(3) Nothing in this section prevents a licensee from voluntarily entering into a consent order with the commission wherein violations are not contested and sanctions are accepted.
Section 40-57-170. (A) Service of a notice provided for by law upon a nonresident licensed under this chapter or upon a resident who, having been licensed, subsequently becomes a nonresident or after due diligence cannot be found at his usual abode or place of business in this State, may be made by leaving with the Director of the Department of Labor, Licensing and Regulation a copy of the notice, and accompanying documents. A copy of the notice, any accompanying documents, and a certified copy of the service on the director must be mailed to the licensee at his last known address, return receipt requested. The director shall keep a record of the day of the service of the notice and the return receipt must be attached to and made part of the return of service of the notice by the commission.
(B) A continuance may be given in a hearing under this chapter for which notice is given pursuant to this section so as to afford the licensee a reasonable opportunity to appear and be heard.
Section 40-57-180. (A) The department may not be involved in the resolution of disputes between licensees over the payment or division of commission.
(B) A resident licensee may pay a part of his commission on a cooperative basis to a licensee of another state or jurisdiction if that licensee does not conduct in this State any of the negotiations for which a fee, compensation, or commission is paid.
(C) The department may conduct periodic inspections of the offices of licensees in order to assist with and to ensure compliance with this chapter.
(D) It is the responsibility of a licensee to keep on file with the department a current mailing address.
(E) No cause of action may arise against an owner of real estate or agent of any party to a transaction for failure to disclose in a transaction the fact that:
(1) the subject real estate is or was occupied by an individual who was infected with a virus or any other disease which has been determined by medical evidence as being highly unlikely to be transmitted through occupancy of a dwelling place either presently or previously occupied by the infected individual; or
(2) the death of an occupant of a property has occurred or the manner of the death.
(F) Nothing in subsection (E) precludes an action against an owner of real estate or agent of such owner who makes intentional misrepresentations in response to direct inquiry from a buyer or prospective buyer with regard to psychological impacts or stigmas associated with the real estate.
(G) The commission shall establish and publish standards relative to the approval and conduct of all education required by this chapter.
(1) The department shall review, approve, and regulate education courses required by this chapter as well as providers and instructors including, but not limited to, accredited colleges, universities, private business entities, organizations, schools, associations, and institutions.
(2) The department may deny, reprimand, fine, suspend, or revoke the approval of an education provider or instructor if the department finds that the education provider or instructor has violated or failed to satisfy the provisions of this chapter or the regulations and standards promulgated pursuant to this chapter.
(3) Application by providers seeking approval to offer and conduct educational instruction or application by instructors must be made on a form prescribed by the department and accompanied by applicable fees not less than sixty days prior to a course offering and must be approved by the department prior to the commencement of any instruction.
(4) If an application for provider, instructor, or course is not approved, the reason must be detailed and the applicant must be given thirty days to respond.
(5) Upon approval, certificates must be issued to providers, courses, and instructors, to be renewed biennially.
(6) Approved courses must be taught by approved instructors who are qualified and have demonstrated knowledge of the subject matter to be taught as well as the ability to teach.
(7) Approved instructors shall attend annual instructor development workshops sponsored by the department whenever possible or provide evidence of equivalent hours of continuing education which increase their knowledge of either the subject content in their area of expertise or their teaching techniques.
Section 40-57-190. Payment and collection of costs associated with investigations and prosecution of violations must comply with Section 40-1-170.
Section 40-57-200. Imposition and collection of all costs and fines must comply with Section 40-1-180.
Section 40-57-210. The provisions of Section 40-1-190 pertaining to privileged communications, whether written or oral, made by or on behalf of a person apply.
Section 40-57-220. (A) An individual who acts as a real estate broker, real estate salesman, or real estate property manager, or who advertises or assumes to act as such without a license issued by the department may be charged in accordance with Section 40-1-200.
(B) A licensee who fails to renew his license or who places his license on inactive status and continues to engage in real estate activities requiring a license is guilty of a misdemeanor and must be punished as provided for in subsection (A) above.
Section 40-57-230. Civil actions may be brought in accordance with Section 40-1-210.
Section 40-57- 240. The provisions of this chapter do not apply to:
(A) an unlicensed owner of real estate who owns any interest in the real estate;
(B) an attorney at law acting within the scope of his duties involved in the legal representation of his client/owner;
(C) agencies and instrumentalities of the state or federal government and their employees acting within the scope of their official duties;
(D) foresters registered under the provisions of Chapter 27 of Title 48, so long as the sale of any land is merely incidental to the sale of timber on the land;
(E) court-appointed receivers and trustees while acting within the scope of their appointment.
Section 40-57-250. If a provision of this chapter or the application of a provision of this chapter to a person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable."