Dual Agency and Informed Consent

by | Mar 25, 2016 | Legal Tips

South Carolina allows real estate licensees to serve as dual agents in real estate transactions. It is important to understand when and how dual agency must be disclosed.  Improper disclosure of dual agency is one of the leading matters resulting in disciplinary action over the past 10 years. South Carolina Code §40-57-137(M)(1) states that a licensee may act as a disclosed dual agent only with the prior informed and written consent of all parties.

The two key terms in the statute are “informed” and “written” consent.  In order to have informed consent the party consenting must know the identity and true position of the other party the licensee also wants to represent in the dual capacity. Informed consent cannot be giving until the other party’s identity is disclosed. For example, a seller may be willing to consent to dual agency before they discover that the other party is the licensee’s child. Under these circumstances, a seller may rightfully decide against dual agency as neutral representation is likely impossible. Make sure the parties are fully informed and understand what and to whom they are consenting.

Secondly, the consent must be in writing. The document must be executed by the buyer prior to writing the offer and by the seller before signing the sales contract. Lastly, the written agreement must specify the transaction in which the licensee is serving as dual agent.

Historical Fact: Harden Street is named for William Harden of South Carolina. In 1776 Harden was given command of Ft. Lyttleton near Beaufort by the Second Provincial Congress. In 1781 while serving under Francis Marion, he commanded patriot forces that captured British troops at Four Holes and Ft. Balfour at Pocotaligo. He died in 1785 in Prince Williams Parish (Beaufort). 



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