South Carolina Code §40-57-135(E)(1) states that, “A licensee may not advertise, market, or offer to conduct a real estate transaction . . . without first obtaining a written listing agreement between the property owner and the real estate brokerage firm with whom the licensee is associated.” As the current law exists this means that a licensee must enter into agency with the Seller before marketing or advertising the Seller’s property. As evidenced by recent disciplinary rulings, the Real Estate Commission has punished licensees who advertise property without first getting a signed listing agreement. How this will change in January when Transaction Brokerage is allowed we don’t really know.
As we have reported in past articles, transaction broker means a “real estate brokerage firm that provides customer service to a buyer, a seller, or both in a real estate transaction.” Furthermore, the statute says a transaction broker may be a “single agent of a party in a transaction giving the other party customer service or may facilitate a transaction without representing either party.” Prospective buyers and sellers who do not choose to establish an agency relationship with a real estate brokerage firm but who use the services of the firm are considered customers.
A licensee may offer the following services to a customer as a single agent or as a transaction broker including, but not limited to:
(a) identifying and showing property for sale, lease, or exchange;
(b) providing real estate statistics and information on property;
(c) providing preprinted real estate forms, contracts, leases, and related exhibits and addenda;
(d) acting as a scribe in the preparation of real estate forms, contracts, leases, and related exhibits and addenda;
(e) providing a list of architects, engineers, surveyors, inspectors, lenders, insurance agents, attorneys, and other professionals; and
(f) identifying schools, shopping facilities, places of worship, and other similar facilities on behalf of the parties in a real estate transaction. SC Code 40-57-350(L)(3).
The statute does not affirmatively allow the listing or advertisement of property under transaction brokerage. While we recognize that the list is not exhaustive, the types of services allowed are in no manner similar to advertising and/or marketing. The acts allowed by the statute are purely ministerial. Moreover, it is indisputable that customer service does not include advising, advocating or counseling. Advertising and marketing are by their very nature equivalent to advocacy and in many cases, counseling. When you list and market a house you are trying to convince the public that this is the best house available for them. Additionally, all listings in the Multiple Listing Services are pushed to numerous advertising sites such as Zillow and Trulia. Thus, listing the property contains the component of advertising and marketing. Therefore, we do not believe that transaction brokerage allows the agent to list, market or advertise the property as such would be considered client services. We will continue to look for signs from the Commission to see if their official position agrees with ours.
Meet the People of Blair Cato: Stephanie Kingsland was born in Buffalo, New York and is a HUGE Buffalo Bills fan! She has lived in Lexington for 10 years. She has worked in real estate for four years and enjoys building relationships during the closing process. When she is not working she enjoys laughing and spending time with her two young daughters and two rambunctious dogs either on the soccer fields or hiking trails.