S.C. Code Ann. § 40-57-137 – Real estate brokerage company duties to client; applicability of common law

(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. (1) seller agency;
2. (2) buyer agency;
3. (3) disclosed dual agency; or
4. (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. (1) the company's policy regarding cooperation with subagents or buyer agents, or both, and whether the broker offers compensation to these agents;
2. (2) the scope of services provided to the company's clients;
3. (3) the scope of services provided to the company's customers;
4. (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. (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. (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. (1) perform the terms of the written brokerage agreement made with the seller;
2. (2) in accordance with subsection (A), promote the interest of the seller by performing agency duties which include:
  1. (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;
  2. (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;
  3. (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;
  4. (d) advising the seller to obtain expert advice on matters that are beyond the expertise of the licensee;
  5. (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. (3) exercise reasonable skill and care in discharging the licensee's agency duties;
4. (4) comply with all provisions of this chapter and with any regulations adopted by the department;
5. (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. (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:
  1. (a) the seller to whom the confidential information pertains grants consent to disclose the information; or
  2. (b) disclosure is required by law; or
  3. (c) disclosure is necessary to defend the licensee against an accusation of wrongful conduct in a proceeding before the commission or before a professional association or professional standards committee.
    No cause of action may arise against a licensee for disclosing confidential information in compliance with subsection (C)(6)(a), (b), or (c).
(D) A licensee acting as a seller's agent may offer alternative properties to prospective buyers. A licensee acting as a seller's agent also may list for sale competing properties.
(E) A licensee acting as a seller's agent may not offer a subagency relationship to other brokers or offer to compensate another broker who represents a buyer without the knowledge and consent of the seller client.
(F) A licensee who represents a seller shall treat all prospective buyers honestly and may not knowingly give them false or misleading information about the condition of the property which is known to the licensee or, when acting in a reasonable manner, should have been known to the licensee. A seller's agent is not obligated to discover latent defects in property or to advise the agent's clients on matters outside the scope of the agent's real estate expertise. A seller's agent, the company, and the broker-in-charge are not liable to a buyer for providing the buyer with false or misleading information if that information was provided to the licensee by his client and the licensee did not know or have reasonable cause to suspect the information was false or incomplete.
(G) Nothing in this chapter limits the obligation of the buyer to inspect the physical condition of the property which the buyer may purchase.
(H) On reaching a written agreement to provide brokerage services to a potential buyer of real estate, a buyer's agent shall:
1. (1) perform the terms of the written brokerage agreement made with the buyer;
2. (2) in accordance with subsection (A), promote the interest of the buyer by performing the buyer's agent's duties which include:
  1. (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;
  2. (b) presenting in a timely manner all offers and counteroffers to and from the buyer;
  3. (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;
  4. (d) advising the buyer to obtain expert advice on material matters that are beyond the expertise of the licensee;
  5. (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. (3) exercising reasonable skill and care in discharging the buyer's agent's agency duties;
4. (4) complying with all provisions of this chapter and with any regulations promulgated by the department;
5. (5) complying with all applicable federal, state, or local laws, rules, regulations, and ordinances related to real estate brokerage, including laws which relate to fair housing and civil rights;
6. (6) preserving confidential information provided by the buyer during the course of or following the agency relationship that might have a negative impact on the buyer's real estate activity unless:
  1. (a) the buyer to whom the confidential information pertains, grants consent to disclose the information; or
  2. (b) disclosure is required by law; or
  3. (c) disclosure is necessary to defend the licensee against an accusation of wrongful conduct in a proceeding before the commission or before a professional association or professional standards committee.
    No cause of action may arise against a licensee for disclosing confidential information in compliance with subsections (H)(6)(a), (b), or (c).
(I) A licensee acting as a buyer's agent may offer properties which interest his buyer client to other potential buyers.
(J) A licensee acting as a buyer's agent may not offer a subagency relationship to other brokers or offer to compensate another broker who represents a seller without the knowledge and consent of the buyer client.
(K) A licensee who represents a buyer shall treat all prospective sellers honestly and may not knowingly give them false or misleading information about the buyer's ability to perform the terms of a transaction. A buyer's agent is not obligated to discover latent defects in property or to advise his clients on matters outside the scope of his real estate expertise. A buyer's agent, his company, and the broker-in-charge are not liable to a seller for providing the seller with false or misleading information if that information was provided to the licensee by his client and the licensee did not know or have reasonable cause to suspect the information was false or incomplete.
(L) A licensee who represents one party to a real estate transaction may provide assistance to other parties to the transaction by performing ministerial acts such as writing and conveying offers, and providing information and aid concerning other professional services not related to the real estate brokerage services being performed for a client. Performing ministerial acts does not create an agency relationship.
(M) A licensee may act as a disclosed dual agent only with the prior informed and written consent of all parties. Consent is presumed to be informed if a party signs a completed copy of the agency disclosure form prescribed by the commission. The form shall specify the transaction in which a licensee shall serve as dual agent and shall state:
1. (1) that in acting as a dual agent, a licensee represents clients whose interest may be adverse and that agency duties are limited;
2. (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:
  1. (a) the willingness or ability of a seller to accept less than the asking price;
  2. (b) the willingness or ability of a buyer to pay more than an offered price;
  3. (c) confidential negotiating strategy not disclosed in an offer as terms of a sale;
  4. (d) the motivation of a seller for selling property or the motivation of a buyer for buying property.
3. (3) that the clients may choose to consent to disclosed dual agency or may reject it;
4. (4) that the clients have read and understood the agency agreement and the agency disclosure form and acknowledge that their consent to dual agency is voluntary.
(N) A subagent is a designated broker and all associated licensees engaged by a broker of another company to act as agent for his client. A subagent owes the same duties and responsibilities to the client as the client's primary broker pursuant to subsections (C) and (H).
(O) Prospective buyers of real estate who do not choose to establish an agency relationship with a licensee but who use the services of the licensee are considered customers and shall receive the following:
1. (1) a meaningful explanation of agency relationships in real estate transactions including the customer's right to choose no representation by licensee;
2. (2) an explanation of scope of services to be provided by licensee;
3. (3) fairness, honesty, and accurate information in all dealings.
(P) The provisions of this section which are inconsistent with applicable principles of common law shall supersede the common law, and the common law may be used to aid in interpreting or clarifying the duties described in this section. Except as otherwise stated, nothing in the section precludes an injured party from bringing a cause of action against licensees, their companies, or their brokers-in-charge.