The Supreme Court Just Ruled in Favor of Real Estate Agents — Here's What It Actually Means

A MAJOR VICTORY FOR ALL REAL ESTATE AGENTS!!

Today we discuss a significant ruling by the South Carolina Supreme Court that protects real estate agents from liability under the South Carolina Residential Property Condition Disclosure Act. The ruling states that there is no private cause of action against real estate agents under the Act allowing buyers to sue agents for the false or misleading statements of the Seller.  This ruling shifts the responsibility solely to property owners. This landmark decision is seen as a major victory for real estate professionals, providing them with much-needed protection in a challenging industry.

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Gary

* Gary serves on the South Carolina Real Estate Commission as a Commissioner. The opinions expressed herein are his opinions and are not necessarily the opinions of the SC Real Estate Commission. This podcast is not to be considered legal advice. Please consult an attorney in your area.    

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This is Dish and Dirt with Gary Pickering, South Carolina's only podcast dedicated to the real estate agent craft. And now the host of Dish and Dirt, Gary Pickering. Welcome back, everyone, to another episode of Dish and Dirt. I'm your often opinionated rarely wrong host, Gary Pickering, coming to you from the beautiful downtown Columbia South County offices of Blair Cato Pickering Casterline, this the first week of May 2025. Today's topic, we are going to discuss a major, yes, major victory for real estate agents. One that seems apparently to be going unnoticed in the market, but it is a major victory for real estate agents here in South Carolina. And I cannot wait to discuss it because for the last couple of months, all we've been discussing has been problems in the industry, whether it has been the Sister Burnett settlement or the CCP arguments between the brokers and owners of companies, to these new private listing networks, and how everybody's going to get sued. So it is very nice, very refreshing to actually get to discuss with y'all today a positive outcome in our industry. And I believe this is one of the biggest, best things that we have seen in our industry in a long time. So I'm very, very excited to share it with you today. Now, before we do, we do have to talk about something really fun happening tonight, May the 1st. Our annual Cinco de Mayo event will be at the Tin Roof on Senate Street here in Columbia. And anybody in the real estate industry is invited. We're excited to have you all out. We'll have food, beer, margaritas, we'll have some prizes, a lot of music and fun. It's one of the signature events I think that Blair Cato does every year. And for me, it's one of the best events because after having winter, you know, finally get to have that event where we all get to come out on a beautiful night and just enjoy each other's companies and just have a good time. So everybody that's available in the real estate industry, come on out May the 1st tonight. May the 1st at the Tin Roof on Senate Street. It's going to be a big fun time. We've done it for about 10 years now, and everybody always has a great time. So y'all come on out. Now let's move over to our breaking news. As I said, this is a major, major court case, major development in South Carolina, and it relates to the South Carolina Residential Property Condition Disclosure Act. And the ruling by the Supreme Court in South Carolina will have major, significant impacts on real estate agents, sellers, and buyers for a long time to come. Finally, a victory in this industry comes at a time when we certainly need it. We haven't had any victories in a long time. So I am very, very happy that we finally got a victory. So we're going to talk about this. The Supreme Court of South Carolina held that the South Carolina Residential Property Condition Disclosure Act does not, it does not create a private cause of action against real estate licensees only against property owners. What does that mean? That you cannot sue a real estate licensee for false, incomplete, or misleading information on the Seller Disclosure Act. You sue the seller. Now there's going to be some caveats to that, but essentially, you cannot sue the real estate agent for problems with that seller disclosure. This is massive. I told you all this is massive. This is a wow moment. This is one of the moments that I've been wanting for a long time when it comes to disclosure. Never thought we would get it. For years, uh, I have believed, as anybody who represents real estate agencies and brokerages will tell you, that the seller disclosure form has been used as a sword against real estate agents from day one. Even though in all of our MCE classes and CE classes, they continually want to tell us that it's a shield, a shield for liability for you. That is not how it's played out until now. Until now, it has been used as a weapon every time that your seller has made an incorrect statement or even a correct statement and just didn't know of a problem. The plaintiff's lawyers would sue the seller and sue you, oftentimes incorrectly claiming that you should have known, which is not even the standard. You had to have actual knowledge, but oftentimes suing you and the seller. And so I have a lot of firsthand knowledge on this. I have been preaching about this for many years. I used to represent Russell Jeff Coat as their corporate counsel, and for years we recognized that the seller disclosure form was a problem. It was getting real estate agents sued. It was causing all kinds of issues. Represented many, many brokerages here in South Carolina on seller disclosure cases. In fact, I even wrote a book on seller disclosure because I was on the task force that came up with a recent iteration of the seller disclosure form. That book, by the way, if you want to take a look at it, is on BlairKeto.com. You can look under resources and go down the bottom. It's an orange booklet. It's about 75, 80 pages. A lot of real estate agents that I work with simply hand that booklet or a link to that booklet to their seller clients and say, you need a form, fill out the form, and here's a booklet on how to answer the questions, but everything you need to know about it. So I'll have to be updating this book on the disclosure to talk about how this case has just come out. Make no mistake about it. This disclosure form has been nothing more than a weapon to be used against you, and that is changing today. Very excited. I have been an expert on multiple cases. I'm very excited to see how this is going to play out on those cases. Right now, I think I'm currently an expert on three or four cases that are going to be affected by this ruling here, because in those cases, oftentimes what happens is the buyer will find damage in a house after closing. They will then sue the seller, and they will also do the real estate agent saying, you knew or should have known, which is not the proper standard, that the damage was there behind the walls. As if the listing agent, when they sit for 30, 45 minutes with a seller, somehow can glean from that conversation from the seller that there's hidden damage behind walls or floor coverings and so forth. But yet the buyer, when they do their inspections and spend hours upon hours in the house with their family, never find it, but somehow the listing agent should always find it. So what has happened is the seller disclosure form has become almost a guarantee or a warranty that there's nothing wrong with the house. Now, before we jump up and down with Glee, we have to dissect this case first to see how far it goes to protect y'all. And I think it does go a long way. So I'm very excited about this. So let's jump right in it. All right, so this is the case in a nutshell. You have Rory Isaac and Kimberly Isaac, who are the buyers of residential real estate property. They bring this lawsuit against the sellers. The seller's name are Jacqueline and Thomas Onions. Yes, onions. They also sued the real estate agent. Her name is Laura Kopczynski. I apologize, Ms. Kopchinski, if I pronounce your name wrong. I am from Spartanburg. I barely speak proper English. So getting, I assume what would be Polish correct or Russian correct is going to be hard for me, but Kopchinski's her name for her failure to disclose reports indicating a high level of moisture in the crawl space of the house and her alleged mischaracterization of a wood infestation report as good when the report actually revealed high moisture levels. The Isaacs claimed fraud, fraud in the inducement, negligent misrepresentation, a civil conspiracy, and violation of the South Carolina Residential Property Condition Disclosure Act. The circuit court, the circuit court being the first court where you try it, that's your local courts, the circuit court granted summary judgment to the real estate agent, Ms. Kopchinski. What that means is the agent's claims were all dismissed, saying that even if everything that the Isaac said was true and accurate, there cannot be a case against Ms. Kopchinski that even if she did exactly what the Isaac said, there's no violation of any law here. That's essentially what the trial court said. So the real estate agent was kicked out from the case as doing nothing wrong, essentially. Of course, the Isaacs then appealed that. They appealed it to what's called the Court of Appeals. The Court of Appeals reversed that summary judgment, that ruling by the trial court, as to two claims, the first claim being negligent misrepresentation, and the second was the seller disclosure act claims. And then they reaffirmed the summary judgment as to the fraud and civil conspiracy case. So basically at this point, what the Court of Appeals has said is we agree you can't sue her for fraud, you can't sue her for the civil conspiracy, but we do believe you could have a case against her for negligent misrepresentation as well as for failure to follow the Seller Disclosure Act. Well, the real estate agent, Ms. Kopchinski, then petitioned the Supreme Court, called ACERT, and asked the Supreme Court to hear the case. So basically, the appeal court said the case can move forward as to negligent misrepresentation as well as a seller disclosure form. So now let's look at the facts. And I need you all to stick with me here on these facts because this is a typical case in a lot of times when we have a disclosure case. There were originally two buyers. You had a buyer, contract falls through, then it moves to a second buyer. But when you hear these facts, you're going to realize they're not very dissimilar to things that happen to you pretty much on a daily basis. So that's important. And the reason that's important to me is that when lawyers try to argue that this case doesn't apply to their case, they always want to look at these facts and say, oh, these are far-fetched facts. This never happens. This is a once-in-a-lifetime type of case. To me, that's not the situation here. The facts in this case are very similar to facts we see every time there is a claim for the seller disclosure violations. April 2018, Mr. and Mrs. Onion, they hire Ms. Kopchinski to list their property for sale. It's in Litchfield Beach Plantation. Kopchinski gives Onion the South Carolina residential property disclosure form, which they did complete. The Onions noted, quote, present wood problem causes caused by termites, insects, wood destroying organisms, dry rot, or fungus. They checked the box, no, that there was none of that issue. There were none of those issues. The first buyers then hired a company called Cornerstone Home Inspectors, who noted there were issues in the crawl space. They recommended more inspections. They said there was corrective actions that needed in the crawl space from a crawl space specialty company. Kopchinski recommended that Stark exterminators go out there and take a look at it and give a proposal. Well, Stark does. They come out and they offer a remedy, basically a vapor barrier, and said it was $4,595 plus a $200 annual service fee to inspect every year. So basically $4,600 to repair it. The seller, however, decides to hire Emory Custard, who works for three full days on the property, but only charges them $706. So it's a little bit weird there. First buyer then says, Well, I'm going to hire an inspector to see what happens here. What does it look like? So they get lame professional pest control to go out. They do a CL100. They found no visible evidence of wood destroying insects or wood moisture content high enough to activate active wood destroying fungi. However, they did find an elevated wood moisture content ranging from 20 to 25%, which indicated non-active wood destroying fungi. So Lane recommends at that point that fans be added to the crawl space. Interestingly, at this point, the first buyer bails on the contract. They don't bail on the contract due to this issue, any repairs. In fact, what they bail over was an appraisal issue. House apparently didn't appraise. So at that point, first buyer's out, and now the property's back on the market. So that now brings us to the Isaacs. The Isaacs are our buyers now. When the contract fell through on the first transaction, Kapchisky reaches out to Isaac's agent, a guy named Kimbroke. And she lets him know the property is now back on the market. She also tells him that she has a home inspection report on hand, as well as a repair verification form that was prepared by the contractor who made the repairs to the crawl space. She even wrote to him in an email, quote, CL100 was done yesterday, and from what I understand it was good, but I can obtain that report if and when necessary, as the seller has paid for it. Kimbrough declined, they were going to do their own inspections, didn't need it. Seller then provides Isaac with a seller disclosure form, but it's the one they completed back in April before the first contract. And the form did not change the answer that denied any present problems with wood fungus in the home. But they did add a note saying see repair verification. The buyer's agent, Kimbrough, acknowledged that he did receive the cornerstone cornerstone report, and he acknowledged the repair document. So the contract was signed on June 20th, 2018. The Isaacs did not hire a home inspector, but they did hire Lane, the pest company, to come in and do the CL100. They testified they did that because the seller's agent had told them that that's the company they had used. Lane, in his inspection, his CL100, notes there was no evidence of active or non-active wood destroying fungus, and that the moisture wood content was down. It was not excessive, it was between 8% and 18%. Isaacs, the buyer, testified that he believed the July CL 100 showed that the repair work fixed the moisture issues and that he became dependent on that report's truthfulness and its accuracy. The Isaacs did close on the property, in fact, on July 23rd, 2018. So now we have the closing. First property falls, the closing falls through. Now the Isaacs come in, they buy the property from the onions, and the deal's done. We're done, right? Well, now we have the problem. Just two days after the closing, big rainstorm causes massive flood problems in the crawl space. Stark Exterminators goes out to inspect. The first time they go out to inspect, they can't inspect because there's standing water in the crawl space. Second time they come out, they go out about a week later, they found standing water, excessive moisture conditions between 27% and 32% in specific locations. There was now active and non-active wood decay fungi with associated damage, visible damage in form of discolored wood, and possible hidden damages. So on November 16th, 2018, Isaac sues Kopchinsky, the Onions, and Lane for failure to make a good inspection. The real estate agent, Kopchinski, was sued for fraud, fraud in the inducement, misrepresentations, negligent misrepresentation, civil conspiracy, as well as disclosure acts. Onion was included in those claims, and then Lane had some other claims. As I mentioned earlier at the circuit court, the real estate agent, Kopchinski, was granted summary judgment. Case was dismissed against her. What was very important in this the dismissal, the summary judgment granting, it said the court notes that Isaacs had relied upon the July CL 100, which they had commissioned when they closed on the property. And the court also found that Isaacs could not hold Kopchitsky liable for alleged inaccuracies in the report. Bam! Finally, you have a court saying that real estate agents are not the guaranteers of reports. They are warranting that the information is true and accurate. But without having actual knowledge that it is false, misleading, or inaccurate, they don't have an obligation to figure that out and they're not liable for it. So this is a huge win right there at the trial court. The Court of Appeals, however, came in, they reversed the summary judgment regarding the negligent misrepresentation as well as the disclosure act claims. And they affirmed, meaning they agreed that there could not be fraud or civil conspiracies based on this. So at this point now, the case moves forward to the Supreme Court. Kopchinski petitions the court who agrees to handle it. So now let's see what the Supreme Court does in handling these two claims that Kopchinski believes should be gone. So the first claim we're going to tackle is the negligent misrepresentation. Let's talk about the legal argument. The court comes out guns blazing right here in the very beginning, come out with some very, very strong language that helps real estate agents. First thing they said is there is no liability for casual statements, representations as to matters of law or matters which plaintiff could ascertain on his own in the exercise of due diligence. That is huge. And they cited a case from 1992 called AMA Mortgage Court vs. Strasberger. But they reiterate that a real estate agent is not going to be liable for making simple casual statements or representations of matters of law or things that the buyer can find out on their own if they just exercise their due diligence. They're shifting the responsibility back to the buyer and say, you have the responsibility to do the due diligence, and we're not going to let you come after casual statements that a real estate agent makes. The key here, you've got to look at these two main words here, is casual statements. So it's a casual statement. It's not definitive statements. If you're out making definitive statements and you're very strong in asserting these things, you've got to be careful. They're talking about casual statements. You're not going to be held to that. And the second aspect of it is the plaintiffs could ascertain it on his own. That's huge. If the plaintiff can figure this out on his own by doing a modicum of inspections or asking simple questions, then the court's saying, no, we're not going to hold people liable for this anymore. So that's good. Now the second comment the court says a determination of justifiable reliance involves the evaluation of the totality of the circumstances, which includes the positions and relations of the party. So whether you're going to rely on something, you have the right to justifiably rely on it, is going to be looking at the total, total circumstances. We're no longer just going to go look at he said this, so I had the right to rely on it. We're going to look at the total circumstances, the entire story, and we're going to look at what your the person who's claiming they relied on what the real estate agent said. We're going to look at what your position is and what your duties are and what your relations are in this transaction. That is also big because that is no longer saying, well, the real estate agent says it, so I have the right to rely on it. And it doesn't matter what I know or could have known or should have known. The court's now going to look at the total story here. Now, the court then moves over to talk about the duty of the real estate agent. And I love this. As a real estate licensee, Kopchiski owed the Isaacs a duty to be truthful. No doubt about that. That's 4057, 350 G1. Absolutely. We believe that. The commission believes that. I think the courts 100% believe that a real estate license has a duty to be truthful. And they even quoted this: a licensee shall treat all parties honestly and may not knowingly, and they highlighted that word, knowingly give them false or misleading information about the condition of the property which is known to the licensee. Goes back to what we said earlier. It's actual knowledge. You've got to show that the licensee had actual knowledge of the false or misleading statement. Actual knowledge. But this is where it gets really good for real estate licensees, guys. However, a licensee is not obligated to discover latent defects or to advise parties on matters outside the scope of the licensee's real estate expertise. Wow. We've been saying that for a long time, too. You have no duty to go look for hidden defects. You have no duty to go do inspections. You have no duty to take it, review it, and compare it to the property and try to find mistakes in it. It's not your duty or obligation to go discover and look for stuff. You have no obligation to advise parties outside of your scope of your license. You're not an inspector, you're not a home inspector, you're not a CL100 company, you're not an HVAC repair person. So those are matters outside of your licensee expertise level. And then the court says, notwithstanding any other provision of law, no cause of action may be brought against a licensee who has truthfully disclosed to a buyer a known material defect. As long as you disclose what you know and you're truthful, you can't be sued for it. Disclose, disclose, disclose. We had a whole CE class on that, a four-hour core class on it. Disclose, disclose, disclose. That's why I have always preached, disclose things even if you're not necessarily required to do it. If you have fire, water, HVAC issues, foundation issues, termite issues in the house, go ahead and tell your seller it's best to disclose it because if you're truthful in disclosing it, you cannot be sued for it. So why would I not just disclose these things? Because I know beyond a shadow of a doubt that once my consumer, once the buyer moves into this house, Nancy Neighbor, nosy Nancy Neighbor, is going to roll over there and say, I can't believe you bought this house after it almost burned down 10 years ago. Or I hope your air conditioner system works because that air conditioner company was out here every day last summer. Disclose those matters, and therefore you don't have to worry about getting sued. The court said it. No cause of action may be brought against a licensee who has truthfully disclosed to a buyer a known material defect. Now, furthermore, this is what the court says, and I love this. The Isaacs, the buyers, had a duty to inspect the property. Buyers had a duty, a duty, not just a right to inspect it, but a duty to inspect the property. And they referenced 2750-80. It says this article does not limit the obligation of the purchaser to inspect the physical condition of the property and improvements that are the subject of a contract covered by this article. Boom! Right off the bat, they've changed it to the buyers having a right to have the home inspection too. It's your duty to inspect the house. And if it's your duty to inspect the house and you don't do it, then that's on you. You have the obligation to do it. That is a huge statement, an absolute huge statement, an affirmative duty now to inspect on the buyers. The court then says, love this part. Taken together, these sections provide that a real estate licensees, licensee, does not have a duty to inspect or investigate the physical condition of a piece of property for the purpose of confirming or denying statements made by a seller in a disclosure statement. They reiterated that from the Chastine versus Hilt Hittle Biddle case back in 2009. Rather, the legislature places the duty of performing such an inspection and investigation squarely on the shoulders of the buyer. Again, they are reiterating for us. Real estate agent has no duty to investigate, no duty to inspect. That duty is on the buyer. Tremendous statement. No duty to inspect. Seller has a duty to do it. Obligations rest squarely on the buyer's shoulder. Now, I don't want y'all to read this. I'm gonna give you a couple caveats here. This is to the agent. This is not about the seller. This is not about the seller making false statements, not about the seller's obligations. This is about the real estate agent's obligations. Secondly, it doesn't cover you if you're making fraudulent statements, things you know to be false. I don't think it's gonna cover you on that. This is not free reign for a real estate agent to go out and say whatever the heck they want to, puff, lie, and make misrepresentations. This is about one particular cause of action and says you don't have a duty to inspect, and your casual statements aren't gonna get you in trouble. But that's a big difference between definitive statements and so forth. So be careful what you're still saying out there. Now, one of the final points the court made as to this particular cause of action was that the buyer's agent even testified on multiple statements to about the depositions in the court that they did not care about the initial reports because they were going to do their own. And they added a lot of, there's a lot of statements about reliance here. Court said, considering Kimbrough's testimony and Kopchitsky's provisions to the Isaacs about the Cornerstone report, giving them notice of the crawl space moisture issues and the repair list information, uh informing them of the repairs that the onions made in response to the report, we find that the Isaacs failed to create a genuine issue of material fact that they reasonably relied on a representation concerning the June CL 100. So basically what they're saying is the real estate agent gave them the report showing that the repairs had been made, and that's essentially what the Isaacs relied on. And wasn't some statement made when she said it's clear or it's good, that that's a casual statement, that was not a definitive statement, and that the report itself was the information provided to the buyers. The buyer had that information, and so they can't now sit here and say they they didn't rely on that report, but they're going to rely on the one statement that everything is good by the real estate agent. That's big. Now, let's look at the last issue, and the last issue is monumental. This is the disclosure act legal argument. The court says the main factor in determining whether a statute creates a private cause of action is the legislative attempt. And the legislative attent to grant or withhold a private right of action for violation of a statute or failure to perform a duty is determined primarily from the language of the statute. In that respect, the general rule is that a statute which does not purport to establish a civil liability, but merely makes provisions to secure the safety or welfare of the public as an entity is not subject to a construction establishing civil liability. Essentially what they're saying here, and this is word for word, quote, the disclosure act creates a private cause of action against an owner who knowingly violates or fails to perform any duty prescribed by the Act. In contrast, while the Disclosure Act provides immunity for real estate licensees when they do not know or have reason to know about issues, it does not provide a cause of action against them. Does not provide a cause of action. However, it does recognize that other cause of actions may be brought against the licensee. For example, the real estate action, real estate licensee acting as a listing agent or selling agent is subject to the regulations governing his license and performance of his responsibilities as a licensee as provided by the commission. This article does not limit any other remedies available by law. Thus, in conclusion, they said, considering the plain language of the Disclosure Act, we hold that the legislature did not intend to create a cause of action for violation of the Disclosure Act against the real estate licensees. There you have it. Supreme Court of South Carolina says you cannot be sued. They cannot, under the South Carolina Seller Disclosure Act, sue you as a real estate agent. They can sue the seller, but they cannot sue you under the Seller Disclosure Act. That's big. Now, again, caveat, that does not mean they can't sue you for other things, making false statements, misleading statements, and things of that nature, but they cannot sue you under the Seller Disclosure Act. So what does this all mean? It provides finally, in my opinion, the shield that the seller disclosure is supposed to provide you. It can no longer be used as a sword against you. They cannot come after you as a real estate agent for things in the Seller Disclosure Act. There's no private cause of actions for violation there. So be careful, not take this as a free reign to say any misrepresentations or incorrect statements. Finally, the court recognizing what we've always believed, Seller Disclosure Act is between the seller and the buyer, has nothing to do with the real estate agents. And so we finally have some protection. This is a good day, guys. This is a very good day that we finally, for the first time in a long time, have a court standing up for real estate agents and saying, no, y'all going too far here. They're not required to inspect the property. They're not required to go find problems with the property. You can't sue them for casual statements like everything looks good in the house and go, oh, well, I relied on that when I've got two reports that tell me something's wrong with the property. You have a duty as a buyer to do the inspection. You can't just sit here and rely on a real estate agent going, yeah, the house is good or it's a great house, and then come back when things aren't good or great, saying, Well, you said the house was good or great, and there's problems with it. And you can't sue them for the real estate disclosure form. So I think this is a good step in the right direction that buyers have to take responsibility for doing their own inspections and they can't try to come after real estate agents every time something goes wrong. Hopefully we'll see this case continue to be built on, and so we'll see where it goes from here. But guys, once again, good news for all real estate licensees today. Hope you all have a good weekend, and we look forward to another episode of Addition Dirt. Y'all come back and see us. Don't forget to like and share us and subscribe. Y'all have a great weekend.