The safe hotline answer: If you talk/write communicate with anyone and the subject of real estate is in that communication, consider that "substantive contact" requiring that you "Mirandize" the consumer with a thorough explanation of your brokerage’s services and the SC Disclosure of Real Estate Brokerage Relationships form.
This could occur at a Christmas party. This could occur at the coffee shop. This could occur online. This could occur in mail and email.
Safe hotline answer: Don’t talk real estate casually. Say "I’m off the clock right now, but I would be glad to set an appointment for a meeting about your real estate needs. When are you available?"
Safe hotline answer: If you do talk real estate, carry the SC Disclosure of Real Estate Brokerage Relationships form around with you and hand them out like candy along with an explanation of that form.
Safe hotline answer: Send the SC Disclosure of Real Estate Brokerage Relationships form electronically (e.g., email, smartphone photo, link) along with a brief explanation in all your initial emails and texts and social media direct communications and mail and faxes.
REALTORS® are highly educated and experienced real estate professionals, so always be wary when you talk real estate with anyone. There is a chance that someone assumes you are giving them real estate investing advice and are looking out for their best interests during casual real estate talk or communication. So if their real estate transaction goes badly, they might hire a lawyer and sue, and file ethics complaints, and file license law complaints, and complain on social media about you and your brokerage.
If you talked or communicated real estate without giving an explanation of your brokerage’s services and did not "go over" the SC Disclosure of Real Estate Brokerage Relationships form, your defense is handicapped and that omission is likely a license law violation which can also be a REALTOR® ethics violation for you and your BIC.
(29) "Substantive contact" means contact in which a discussion or dialogue between the consumer and the associated licensee 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.
(F)(1) A licensee clearly shall reveal his license status in a personal transaction involving the purchase, sale, exchange, rental, lease, or auction of real estate at first substantive contact with a consumer and in advertising or marketing in any media. A licensee also shall disclose his licensed status in bold underlined capital letters on the first page of a contract for the purchase, sale, exchange, rental, or lease of real property.
SECTION 40-57-370. Duty of licensee to provide disclosure of brokerage relationships; exceptions.
(A) A licensee shall provide at the first practical opportunity to all potential buyers and sellers of real estate with whom the licensee has substantive contact:
(1) a meaningful explanation of brokerage relationships in real estate transactions that are offered by that real estate brokerage firm, including an explanation of customer and client services;
(2) Disclosure of Brokerage Relationships form prescribed by the commission.
(B) An "Acknowledgement of Receipt of the Disclosure of Brokerage Relationships" form must be included in an agency agreement and in a sales contract. In addition, each sales contract must require the buyer and the seller to acknowledge whether they received customer or client service in that real estate transaction.
(C) At the time of first substantive contact, it is presumed that the potential buyer or seller is to be a customer of the real estate brokerage firm and that the real estate brokerage firm will be acting as a transaction broker as defined by this chapter and that the real estate brokerage firm shall offer services to a customer as defined by Section 40-57-350(L) only until the potential buyer or seller signs an agency representation agreement.
(D) If first substantive contact occurs over the telephone or other electronic means, including the Internet and electronic mail, an "Acknowledgement of Receipt of the Disclosure of Brokerage Relationships" form may be sent by electronic means, including the Internet and electronic mail.
(E) For all real estate transactions, no agency relationship between a buyer, seller, landlord, or tenant and a real estate brokerage firm and its associated licensees exists unless the buyer, seller, landlord, or tenant and the brokerage company and its associated licensees agree, in writing, to the agency relationship. No type of agency relationship may be assumed by a buyer, seller, landlord, tenant, or licensee or created orally or by implication. A real estate brokerage firm may not be considered to have an agency relationship with a party or have agency obligations to a party but is responsible only for exercising reasonable care in the discharge of the real estate brokerage firm’s specified duties, as provided in this chapter, and, in the case of a client, as specified in the agency agreement.
(F) The payment or promise of payment of compensation to a real estate brokerage firm by a seller, buyer, landlord, or tenant does not determine whether an agency relationship has been created between a real estate licensee and a seller, buyer, landlord, or tenant.
(G) The brokerage relationship disclosure requirements of this section do not apply if the:
(1) transaction is regarding the rental or lease of property; or
(2) communication from the licensee is a solicitation of business.
HISTORY: 1997 Act No. 24, Section 1; 2004 Act No. 218, Section 18; formerly 1976 Code Section 40-57-139; 2016 Act No. 170 (S.1013), Section 1, eff January 1, 2017.
Posted by: Byron King on 12/4/19 (This information is only accurate as of 12/4/19. You must contact SCR for updates and changes to this information after 12/4/19 as laws and regulations may change over time. SCR 803-772-5206 or email info at screaltors.org)