When is Confidential not Confidential?

by | Oct 21, 2016 | Legal Tips

When working with a client the real estate agent has a duty of confidentiality. This duty survives even after the relationship has ended or otherwise terminated.  The Real Estate Commission takes this duty very seriously as should the real estate agent.  A licensee may not disclose confidential information even if the agent believes that it will increase the chance of a successful closing.

The duty of confidentiality applies to all client agency relationships but does not apply to customer agency relationships. Confidentiality provides a great opportunity for the real estate agent to demonstrate why client agency is safer and better for a consumer. The real estate agent should explain during their agency explanation that a customer is not afforded confidentiality. If the customer comments on a listing or matter that could assist a different client of the real estate agent, then the real estate agent would have a duty to disclose those comments to her other client. However, if the consumer was a client those comments would be forever protected.

While the duty of confidentiality is a main tennt of the agency relationship, it is not absolute. Under SC Code 40-57-350 (2017) no duty of confidentiality exists under the following conditions:

a) Written consent from the client. In order to rely on written consent the consent must clearly set forth the information that has been authorized to be released. Make sure the authorization clearly denotes the information that can be disclosed and that you do not exceed the consent given.

b) Disclosure is required by law.  An important example would be the licensee being required by law to disclose a material fact. If your client tells you not to disclose a material fact because of confidentiality you must disclose the material fact anyway.

c) Disclosure is necessary to defend a licensee against an accusation of wrongful conduct.  This provision allows a licensee to defend themselves before the Real Estate Commission.

d) The information becomes public from a source other than a broker. Documents recorded at the courthouse would be considered public and an example.

Please be careful with any and all confidential information.  Treat the information as your own. If you are in doubt, ask yourself would you want the information shared if you were the client.

Historical Fact: Ever wondered about the history of the Publix Grocery Store on the corner of Gervais and Huger? The building was built in 1863 for the printing and stationary firm of Evan & Cogswell. The company produced bonds and currency for the Confederacy through the Civil War. When Federal Troops burned Columbia they took the printing plates and “an immense quality” of currency. After the war the building served as a warehouse for the state liquor dispensary from 1895 to 1907. 

Photo by DaMongMan

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