§ 40-57-30 — Definitions.

For purposes of this chapter: (1) "Active license" means a license that has been issued for the current period and authorizes the licensee to practice in this State. (2) "Agency relationship" means a legally binding relationship created in writing between a real estate brokerage firm and its client. (3) "Agent" means one authorized and empowered by a written agency agreement to perform actions for a client. A real estate brokerage firm is the agent of a buyer, seller, landlord, or tenant, and the real estate brokerage firm's "supervised licensees" are its subagents. (4) "Alternative name" means a first name, other than the licensee's legal first name, that is registered with the commission and used by the licensee for marketing purposes. (5) "Associate" means a supervised licensee who: (a) meets experience and education requirements; (b) passes both the state and national portions of the examination for an associate license; and (c) engages in or participates in an activity included in the definition of "broker" for a fee, salary, commission, or other valuable consideration, or with the intent or expectation of receiving compensation. (6) "Broker" means a supervised licensee who has met the experience and education requirements and has passed both the state and national portions of the examination for a broker license and who, for a fee, salary, commission, referral fee, 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 to the real estate; (b) auctions or offers to auction real estate in accordance with Section 40-6-250; (c) for a fee or valuable consideration solicits a referral; (d) offers services as a real estate consultant, counselor, or transaction manager; (e) offers to act as a subagent of a real estate brokerage firm representing a client in a real estate transaction; or (f) advertises or otherwise represents to the public as being engaged in any of the foregoing activities. (7) "Broker-in-charge" means the sole broker designated by the commission to have responsibility over the actions of all supervised licensees. A broker-in-charge is responsible for: (a) the day-to-day management of the brokerage firm; (b) the control and liability for a real estate trust account; and (c) ensuring compliance with all applicable laws and regulations. The authority granted to the broker-in-charge cannot be assigned or designated to another licensee. (8) "Buyer agency" means a form of agency in which a real estate brokerage firm represents the buyer in an agency capacity as defined in this chapter. (9) "Canceled license" means a license that is invalidated, can no longer be reinstated or renewed, and requires an individual seeking to be licensed again after cancellation of his prior license to reapply and meet current licensure requirements. (10) "Client" means a person who enters a written agreement establishing an agency relationship with a real estate brokerage firm through its broker-in-charge, a property manager-in-charge, or a supervised licensee. (11) "Commission" means the South Carolina Real Estate Commission and its members, who are charged by law with the responsibility of licensing or otherwise regulating the practice of real estate in the State of South Carolina. (12) "Conversion" means to use trust funds for a purpose other than the purpose for which they are held. Conversion is a breach of trust and is a crime as provided by law. (13) "Customer" means a buyer, seller, landlord, or tenant who uses the services of a real estate licensee but does not establish an agency relationship through a written agency agreement with the licensee's real estate brokerage firm. (14) "Department" means the Department of Labor, Licensing and Regulation. (15) "Designated agency" means a form of agency in which two clients represented by a real estate brokerage firm in the same transaction may be given almost equivalent treatment as a single agency. (16) "Dual agency" means a form of agency in which a real estate brokerage firm with two clients in the same transaction gives limited agency services. (17) "Email" means a system for sending and receiving a message electronically over a computer network and a message sent or received by the system. (18) "Formal complaint" means a formal written complaint charging misconduct by a licensee in violation of this chapter, regulations promulgated under this chapter, Chapter 1, Title 40, or any other provision of law. (19) "Inactive license" means the official temporary cessation of a licensee's authorization to practice real estate upon the licensee providing notice to the commission that the person does not intend to practice real estate brokerage, is no longer supervised by a South Carolina-licensed broker-in-charge or property manager-in-charge, or has stepped down as the broker-in-charge or property manager-in-charge from a brokerage or property management office. (20) "Incompetency" means the failure of a licensee to demonstrate and apply the knowledge, skill, and care that is ordinarily possessed and exercised by other licensees of the same licensure status and required by the generally accepted standards of the profession. Charges of incompetence may be based upon a single act of incompetence or upon a course of conduct or series of acts or omissions that extend over a period of time and that, taken as a whole, demonstrate incompetence. (21) "Lapsed license" means the termination of a person's authorization to practice under this chapter due to the person's failure to renew his license within the renewal period but before the license is canceled. (22) "Letter of caution" means a written caution or warning about past or future conduct issued when it is determined that only minor misconduct not warranting discipline has been committed. The issuance of a letter of caution is not a form of discipline and does not constitute a finding of misconduct unless the letter of caution specifically states that misconduct has been committed. While nondisciplinary, the fact that a letter of caution has been issued may be considered in a subsequent disciplinary proceeding. (23) "Licensee" means an individual currently licensed under this chapter. (24) "Limited-function referral office" means a brokerage where the office policy allows only the placement of referrals through the broker-in-charge. (25) "Material adverse fact" means: (a) a condition or occurrence that is generally recognized as: (i) significantly and adversely affecting the value of the real estate; (ii) significantly reducing the structural integrity of improvements to real estate; or (iii) presenting a significant health risk to occupants of the real estate; or (b) information that indicates that a party to a transaction is not able to or does not intend to meet an obligation under a contract or agreement made concerning the transaction. (26) "Ministerial act" means an act performed by a licensee not involving an exercise of discretion or judgment of a licensee on behalf of a person who is not a client and that assists the nonclient to consummate a real estate transaction. (27) "Office" means the office location where a broker-in-charge or a property manager-in-charge is licensed to conduct real estate business. (28) "Personal trust account" means an escrow account or demand deposit bank account properly designated and titled to include the words "trust" or "escrow" that is established and maintained by a licensee to safeguard funds belonging to parties to a real estate transaction when the transaction involves the licensee's personal real estate and the real estate is not managed or listed through a real estate brokerage firm. (29) "Property manager" means a supervised licensee who meets educational requirements and passes the examination for a property manager license, and who will for a fee, salary, commission, other valuable consideration or with the intent or expectation of receiving compensation: (a) negotiate or attempt to negotiate the rental or leasing of real estate or improvements to the real estate; (b) list or offer to list and provide a service in connection with the leasing or rental of real estate or improvements to the real estate; or (c) advertise or otherwise represent to the public as being engaged in an activity in subitems (a) and (b). (30) "Property manager-in-charge" means a property manager who is designated as having the responsibility over the actions of supervised licensees and also the responsibility and control over and liability for real estate trust accounts. A property manager-in-charge is responsible for the day-to-day management of the office for which the property manager-in-charge is registered with the commission and is responsible for ensuring compliance with all applicable laws and regulations. (31) "Real estate" means land, buildings, and other appurtenances, including all interests in land, whether corporeal, incorporeal, freehold, or nonfreehold, whether the real estate is within or outside of the boundaries of this State. (32) "Real estate brokerage" means the aspect of the real estate business that involves activities relative to property management or a real estate sale, exchange, purchase, lease, or other disposition. (33) "Real estate brokerage firm" means a real estate company engaged in the business of real estate brokerage. (34) "Real estate transaction" means an activity involving the sale, purchase, exchange, lease, or other disposition of real estate. (35) "Residential real estate" means real estate which is used primarily for personal, family, or household purposes and is improved by one to four dwelling units. (36) "Seller agency" means a form of agency in which a real estate brokerage firm represents the seller in an agency capacity as defined in this chapter. (37) "Subagent" means an agent of an agent. A "supervised licensee" is a subagent of the real estate brokerage firm if the firm is an agent of a buyer, seller, landlord, or tenant. (38) "Substantive contact" means contact in which a discussion or dialogue between the consumer and the supervised licensee or broker-in-charge moves from casual introductory talk to a meaningful conversation regarding the selling or buying motives or objectives of the seller or buyer, financial qualifications, and other confidential information that if disclosed could harm the consumer's bargaining position. (39) "Supervised licensee" means a licensee affiliated with and under the supervision of a broker-in-charge or property manager-in-charge. (40) "Team" means two or more supervised licensees working together as a single unit within an office established with the commission and supervised by a broker-in-charge. (41) "Trust account" means an escrow account or properly designated demand deposit bank account that is: (a) properly designated and titled to include the word "trust" or "escrow"; and (b) 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. (42) "Trust funds" means funds received on behalf of another person by a licensee in the course of performing a real estate activity. (43) "Transaction broker" means a real estate brokerage firm that provides customer service to a buyer, a seller, or both in a real estate transaction. A transaction broker may be a single agent of a party in a transaction giving the other party customer service. A transaction broker also may facilitate a transaction without representing either party. (44) "Wholesaling" means having a contractual interest in purchasing residential real estate from a property owner, then marketing the property for sale to a different buyer prior to taking legal ownership of the property. Advertising or marketing real estate owned by another individual or entity with the expectation of compensation falls under the definition of "broker" and requires licensure. "Wholesaling" does not refer to the assigning or offering to assign a contractual right to purchase residential real estate.

Legislative History

HISTORY: 1997 Act No. 24, SECTION 1; 2016 Act No. 170 (S.1013), SECTION 1, eff January 1, 2017; 2024 Act No. 204 (H.4754), SECTION 3, eff May 21, 2024. Editor's Note Prior Laws:1962 Code SECTION 56-1545.1:1; 1967 (55) 652; 1986 Act No. 353, SECTION 1; 1991 Act No. 12, SECTION 3; 1976 Code SECTION 40-57-10. Effect of Amendment 2016 Act No. 170, SECTION 1, rewrote the section. 2024 Act No. 204, SECTION 3, rewrote the section.