The New CMLS Exclusive Right to Sell

by | Mar 23, 2017 | Legal Tips

As a result of the state legislature amending Title 40 of the South Carolina Code entitled Real Estate Brokers, Salespersons and Property Managers, the Consolidated Multiple Listing Service (“CMLS”) revised its Exclusive Right to Sell (“ERTS”) form. I had the pleasure and honor of being asked by the Board to revise the ERTS. In revising the ERTS form, I consulted the ERTS form offered by Greenville and Charleston.  I also reviewed the ERTS forms from Oklahoma, Florida, Michigan, Georgia, North Carolina and other states.

The ERTS is provided by the CMLS for the real estate agent’s convenience. The real estate agent is not required to use this ERTS. A real estate agent may use the REALTORS® form or any other ERTS.  However, a real estate agent may not use the previous CMLS form as it does not comply with the new statute.

The amended real estate statute resulted in three items being addressed in the ERTS. First, the revised ERTS addresses transaction brokerage compensation. Secondly, language denoting Owner acknowledgement of receiving an explanation of the types of agent relationships that are offered by the brokerage and the South Carolina Disclosure of Real Estate Brokerage Relationship Form was updated. Lastly, the statutory definition of “material adverse facts” was included in the form.

In addition to updating the form for compliance, CMLS used the occasion to revisit and update the entire form. The document was reordered so that it would better flow with the agent’s explanation of representation. The language was simplified by using less legalese and by separating some paragraphs, such as the compensation and protection period paragraph.

Other highlights in the new ERTS include:

  • The document better sets forth the authorization period and property description.
  • The ERTS simplifies and clarifies when the agent is entitled to compensation. The language is cleaner. This paragraph also clarifies the protection period and eliminates loopholes.
  • The provisions on dual agency and designated agency mirrors the language required by the Real Estate Commission.
  • A provision authorizing and establishing the commission split between agent in buyer agency and those in transaction brokerage was added.
  • The document also alerts the seller to several inherent risks in marketing the property including visitors to the property and inappropriate use of the information.
  • A provision to prevent pictures of the house and personal property from being shown on the internet or posted on social media by potential buyers, even if the seller restricts marketing, was included.
  • The indemnification language for the agent was also strengthened against these risks.
  • The definition of fixture was updated to more closely resemble the language in the CCRA and state contract.

Historical Fact: Many locals remember grabbing a bite at Hennessy’s at 1649 Main Street.  Hennessy’s operated a restaurant in the three story brick building located at the corner of Main and Blanding Street from 1984 to 2011. The building was built in 1872 as a grocery store. The building was then purchased by Ruff Hardware Company in 1910. Ruff operated at the site until the 1970s.  Interestingly, the top floor and basement have not been used since 1970. The building was recently purchased and a new restaurant is in the plans.

Blair Cato Pickren Casterline’s famous Cinco de Mayo event for Real Estate Agents will be May the 4th (be with you) at 701 Whaley. More details to follow soon. 

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