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Fiji Sessional Legislation |
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FIJI ISLANDS
REAL
ESTATE AGENTS ACT 2006
ACT NO.
13
ARRANGEMENT OF CLAUSES
PART 1: PRELIMINARY
1. Short title and
commencement
2. Interpretation
3. Meaning of real estate
agent
PART 2: REAL ESTATE AGENTS LICENSING BOARD
4. Establishment of Real Estate Agents Licensing
Board
5. Minister may give policy directions
6. Meetings of the
Board
7. Allowances and expenses of members of the Board
8. Functions and
powers of the Board
9. Chairperson may exercise certain functions of the
Board
10. Seal
11. Registrar may exercise certain functions of the
Board
12. Representation of parties
13. Evidence before
Board
14. Board must give reasons for adverse decisions
PART 3: LICENSING OF REAL ESTATE AGENTS
15. Licensing of real estate
agents
16. Eligibility for licences
17. Application for
licence
18. Public notice of application to be given
19. Hearing
and disposal of applications
20. Board not to hear or consider an
application until satisfied of certain matters
21. Board may grant
licence
22. Evidence required by Board
23. Licence to be held in
licensees name unless Board otherwise approves
24. Effect of
licence
25. Carrying on business at place not specified in
licence
26. Duration of licence
27. Renewal of
licence
28. Special provisions in respect of partnerships and
companies
29. Voluntary surrender of licence
30. Permits
PART 4: REGISTRAR OF REAL ESTATE AGENTS, ETC.
31. Registrar of real estate agents,
etc.
32. Establishment of Register of real estate
agents
33. Issue, etc. of licences and certificates of approval to be
recorded in Register
34. Correction of Register
35. Registrar to
keep copies of permits
36. Wrongfully procuring issue of licence,
certificate of approval, etc.
37. Lost licences, certificates of
approval and permits
38. Inspection of real estate agents books and
documents
39. Receipt for document taken into
possession
40. Expenses of Board in investigating affairs of real estate
agent
PART 5: APPROVAL OF SALESPERSONS
41. Salesperson must have certificate of
approval
42. Application for approval of
salesperson
43. Certificate of approval of
salesperson
44. Duration of certificate of approval
45. Renewal
of certificate of approval
46. Custody of certificate of
approval
47. Voluntary surrender of certificate of approval
PART 6: SUPERVISION OF BUSINESS
48. Supervision of business
49. Application
for approval of branch manager
50. Criteria for approval as branch
manager
51. Powers of Board in respect of application for approval for
branch manager
52. Licensee to notify Registrar of transfer of branch
manager
PART 7: DUTIES OF REAL ESTATE AGENTS
53. Licensee to display notice on place of business,
etc.
54. Duty of real estate agent with respect to money received in
course of business
55. Real estate agent to have written contract of
agency
56. Purchase or lease by real estate agent
voidable
57. Real estate agent to provide valuation
58. Real
estate agent to provide copy of offer or agreement
59. Real estate agent
to keep record of transactions
PART 8: RECEIPT OF MONEY AND AUDIT OF ACCOUNTS
60. Treatment of certain money received by real
estate agent
61. Money to be held by real estate agent for 10
days
62. Real estate agent to furnish account to
principal
63. Rendering false account
64. Real estate agents
trust accounts to be audited
65. Administration of trust account in
certain cases
PART 9: DISCIPLINARY POWERS OF BOARD
66. Grounds on which licence may be cancelled by
Board
67. Board may suspend real estate agent
68. Board may hold
enquiry
69. Interim suspension pending determination of
application
70. Board may cancel certificate of approval or suspend
salesperson, etc.
71. Evidence of
offences
72. Venue
73. Right of real estate agent to be
heard
74. Witnesses may be required to attend and give
evidence
75. Rules of procedure
76. Jurisdiction of Court not
limited
PART 10: APPEALS
77. Appeals to Minister
78. Rights of
licensee pending disposal of appeal in certain cases
79. Procedure on
appeal
80. Hearing and determination of appeal
81. Appeal
against decision of Minister
PART 11: MISCELLANEOUS PROVISIONS
82. Prohibition on charging excessive commission,
etc.
83. General provision relating to offences
84. Civil
remedies not affected
85. Service of notices and
documents
86. Immunity of witnesses, counsel and Board
87. Board
may award costs
88. Recovery of costs and expenses
89. Registrar
to keep accounts of moneys received
90. Reports of the
Board
91. Minister may require returns,
etc.
92. Regulations
93. Savings and transitional
---------------------------------
ACT NO. 13 OF 2006
I assent
J. I.
ULUIVUDA
President
[8 September 2006]
AN ACT
FOR AN ACT TO MAKE
PROVISION FOR THE REGULATION OF REAL ESTATE AGENTS AND FOR RELATED
MATTERS
ENACTED by the
Parliament of the Fiji Islands:
PART 1: PRELIMINARY
Short title and commencement
1. This Act may be cited as the Real Estate Agents Act
2006, and comes into operation on a day to be appointed by the Minister by
notice published in the Gazette.
Interpretation
2. (1) In this Act, unless the context otherwise
requires:
"Board'' means the Real Estate Agents Licensing Board established under section 4;
"branch manager" means a person, referred to in section 48(2), who is in effective control of a branch office;
"certificate of approval'' means a certificate of approval issued under section 43 (1) or section 51 (1);
"effective control'', in relation to a place of business of a real estate agent, means to personally supervise, manage, and control the conduct of the real estate agency business at that place, and to work actively and substantially at or from that place;
"land'' includes all estates and interests, whether freehold or chattel, in real property and includes:
(a) any building and any part of a building; and
(b) in relation to any transaction relating to land that also relates to any goods, chattels, or other property, those goods or chattels or other property;
"licence'' means a real estate agent's licence granted under section 21, and licensee and licensed'' shall be construed accordingly;
"officer'', in relation to a licensee company, means every director, manager, or secretary of the company who, on behalf of and in the name of the company, carries on the company's business as a real estate agent, and includes:
(a) any person, however designated, who is responsible for the management of the company;
(b) any person who is responsible for the management of any branch of the company; and
(c) (in relation to a company that carries on any other business in addition to its business as a real estate agent) the person responsible for the management of the company's real estate agency business;
"permit'' means a permit granted under section 30;
"Register'' means the register of real estate agents established and maintained under section 32;
"Registrar'' means the Registrar of Real Estate Agents referred to in section 31;
"salesperson'' means a person who, being employed or engaged (whether under a contract of service or a contract for services) by a real estate agent, works for the agent in selling or otherwise disposing of land, purchasing or otherwise acquiring land, or leasing or letting land:
(a) and includes an officer of a licensee company who is not eligible to apply for or obtain a licence in his or her own right;
(b) but does not include a licensee, or an employee of a licensee, whose work is primarily and predominantly clerical.
Meaning of "real estate agent
3. (1) For the purposes of this Act, every person
shall be deemed to be a real estate agent who acts, or who holds himself or
herself out to the public as ready to act, for reward as an agent in respect of
the sale or other disposition of land or the purchase
or other acquisition of
land, or in respect of the leasing or letting of land, whether or not that
person carries on any other business.
(2) Notwithstanding subsection (1),
no person shall be deemed to be a real estate agent for the purposes of this Act
by reason only
of the fact that:
(a) being a legal practitioner, the person acts, in the course of business as the legal practitioner, as agent in respect of the sale, purchase or other disposition of land, the acquisition of land or the leasing or letting of land, unless the person is remunerated for so acting by commission in addition to, or instead of, professional charges as a legal practitioner;
(b) the person sells or offers to sell any land by auction;
(c) the person enters into a transaction or series of transactions pursuant to a permit granted to the person by the Board under section 30.
(3) Where 2 or more persons carry on
business jointly as real estate agents, each of those persons shall be deemed to
be a real estate
agent.
(4) For the purposes of this section, the
collection or receipt of rent money by:
(a) a real estate agent or any person employed by that real estate agent;
(b) a director, officer, or employee of a company that is a real estate agent; or
(c) a company in which a real estate agent holds, directly or indirectly, a majority of the shares or control of the voting power,
shall be deemed to be carrying on
business as a real estate agent.
(5) Subsection (4) shall not apply
in respect of the collection or receipt of rent money by a person on the
person's own behalf.
PART 2: REAL ESTATE AGENTS LICENSING BOARD
Establishment of Real Estate Agents Licensing Board
4. (1) There is hereby established a Board to be known as
the Real Estate Agents Licensing Board.
(2) Subject to subsection
(3), the Board shall consist of:
(a) a Chairperson, appointed by the Minister;
(b) four other members appointed by the Minister:
(i) of whom two only shall be licensed real estate agents; and
(ii) of whom one shall be appointed deputy Chairperson by the Minister.
(3) Notwithstanding
subsection (2)(b)(i), for the purpose of constituting the first Board under this
Act, that paragraph shall be
read and construed as if for the words licensed
real estate agent there were substituted the words persons directly involved in
the
operation or ownership of a real estate business.
(4) Subject to this
section, each member of the Board shall hold office for a term of 3 years, and
may from time to time be re-appointed.
(5) A member of the Board may
resign his or her office at any time by written notice given to the Minister and
such resignation shall
be effective on the date of receipt by the Minister of
the notice.
(6) A member of the Board may be removed from office at any
time by the Minister for inability to perform functions on any medical
ground,
bankruptcy, neglect of duty, or misconduct, proved to the satisfaction of the
Minister.
(7) If a member of the Board dies, resigns, or is removed from
office, the vacancy shall be filled in the same manner as the appointment
of the
vacating member; and every person so appointed shall hold office for the
remainder of the term for which his or her predecessor
was appointed.
(8)
The powers of the Board shall not be affected by any vacancy in its
membership.
Minister may give policy directions
5. The Minister may, after consultation with the Board,
give such general or special directions as to the policy to be followed by
the
Board in the performance of its functions as appear to the Minister to be
necessary in the public interest, and the Board shall
give effect to any such
directions.
Meetings of the Board
6. (1) Meetings of the Board shall be held at such
times and places as the Chairperson may from time to time
appoint.
(2) The Chairperson of the Board shall preside at all
meetings of the Board, and, in the absence of the Chairperson, the deputy
Chairperson shall preside.
(3) At a meeting of the Board:
(a) four members shall form a quorum;
(b) each application before a meeting shall be determined by a majority of the members present; and
(c) the Chairperson or other person presiding shall have a deliberative vote and in case of an equality of votes shall also have a casting vote.
(4) Subject to the provisions of this section, the Board may
regulate its procedures in such manner as it thinks fit.
Allowances and expenses of the members of the Board
7. A member of the Board shall be entitled to receive such
allowances and expenses as may be determined by the Minister.
Functions and powers of the Board
8. (1) The principal functions of the Board shall be
those conferred on it:
(a) by Part 3 in respect of the licensing of real estate agents and the granting of permits;
(b) by Part 5 in respect of the approval of salespersons;
(c) by sections 48 to 51 in respect of approval of branch managers; and
(d) by Part 9 in respect of discipline.
(2)
The Board shall also have such other functions as are conferred on it by this or
any other Act.
(3) The Board shall have all the powers necessary to
carry out its functions.
Chairperson may exercise certain functions of the Board
9. (1) Notwithstanding anything in any of the foregoing
provisions of this Part, the Chairperson of the Board may, on behalf of the
Board:
(a) issue a permit to an applicant under section 30; and
(b) make an order for the interim suspension of a licence pursuant to section 69.
(2) Every decision of the Chairperson in
relation to any matter under this section shall, for all purposes, be deemed to
be the decision
of the Board.
Seal
10. (1) The Board shall have a seal, which shall be
judicially noticed in all Courts and for all purposes.
(2) The seal shall
be in the custody of the Registrar, and shall not be used except as authorised
by the Board.
Registrar may exercise certain functions of the Board
11. (1) Notwithstanding anything in any of the foregoing
provisions of this Part, except where a person entitled so to do has objected
to
an application within the time allowed, the Board may, from time to time,
authorise the Registrar to exercise, on behalf of the
Board, the Boards
functions in respect of any of the applications specified in subsection
(2).
(2) The applications referred to in subsection (1) are:
(a) an application, pursuant to section 23, for the approval of a name under which a licensee may conduct business;
(b) an application, pursuant to section 25, for approval to carry on business at a place not specified in the applicants licence;
(c) an application, pursuant to section 27, for renewal of a licence;
(d) an application, pursuant to section 41, for approval of a salesperson;
(e) an application, pursuant to section 45, for the renewal of a certificate of approval of a salesperson;
(f) an application, pursuant to section 49, for approval of a branch manager; and
(g) an application, pursuant to section 45 (as applied by section 51(6)), for the renewal of a certificate of approval of a branch manager.
(3) Every decision of the
Registrar in relation to any matter under this section shall, for all purposes,
be deemed to be the
decision of the Board.
(4) The Board may at any time
revoke in whole or in part any authorisation granted to the Registrar pursuant
to subsection (1).
Representation of parties
12. (1) Subject to any provision to the contrary in this
Act, every person making an application to the Board shall be entitled to
appear
and be heard by the Board in respect of the application.
(2) Where
any person is entitled under this Act to appear and be heard in relation to
proceedings before the Board, that person
may appear in person or by his or her
counsel or agent, and shall have the right to produce evidence and to
cross-examine witnesses.
Evidence before Board
13. (1) The Board may receive in evidence any statement,
document, information, or matter that may, in its opinion, assist it to deal
effectively with the matter before it, whether or not the same would otherwise
be admissible in a court of law.
(2) The Board may, if it thinks fit in
respect of any application before it, examine, on oath or otherwise, the
applicant or any other
party to the application, or require any person to verify
by statutory declaration any statement made by him or her with respect
to the
application.
(3) For the purposes of this Act the Chairperson, or
the deputy Chairperson if presiding, may administer an oath or affirmation
to
any person.
Board must give reasons for adverse decision
14. Where any application made to the Board under this Act
is refused, the Board shall, upon request in writing by the applicant,
within a
period of one month from the date of receipt of the request, give a written
statement of the reasons for its refusal to
the applicant.
PART 3: LICENSING OF REAL ESTATE AGENTS
Licensing of real estate agents
15. (1) Subject to section 30, no person shall carry on
the business of a real estate agent unless the person is the holder of a licence
issued in accordance with this Part.
(2) Every person who, not being
the holder of a licence:
(a) describes himself or herself in writing as, or holds himself or herself out to be, a real estate agent; or
(b) carries on business as a real estate agent,
commits an offence and, in addition to
any fine that may be imposed, is liable to forfeit to the State all money
received by him or
her by way of commission, profit or remuneration for any
services or work performed by him or her as an unlicensed real estate
agent.
(3) In any proceedings for an offence under this section a
certificate, signed by the Registrar, to the effect that the defendant
or any
other named person was not at the time of the alleged offence the holder of a
licence shall, in the absence of proof to the
contrary, be sufficient evidence
of that fact.
Eligibility for licences
16. (1) Subject to this Part, every person who:
(a) has attained the age of 21 years and has passed any examinations for the time being prescribed by regulations made by the Minister and has been approved by the Board for the purposes of this section;
(b) is a company; or
(c) was, at any time within 5 years immediately preceding the commencement of this Act:
(i) engaged in the real estate business; or
(ii) a director or officer of a company that was engaged in the real estate business,
shall be eligible to
hold a licence under this Act.
(2) Notwithstanding subsection (1), no
person shall be eligible to apply for or obtain or hold a licence under this Act
if:
(a) the person is a bankrupt and has not obtained an order of discharge, or, if the person has obtained an order of discharge, it is suspended for a term not yet expired or is subject to conditions not yet fulfilled;
(b) the person holds a practising certificate as a legal practitioner;
(c) the person has not, during the preceding 5 years, had at least 3 years practical experience working full time, primarily or predominantly in real estate agency work.
(3) No company is eligible
to apply for or obtain a licence under this Act if such of the officers of the
company (if it is granted
a licence) as the Board may designate upon application
made to it in that behalf are not eligible under this section to apply
for
or obtain a licence in their own right.
Application for licence
17. (1) Every person who desires to obtain a licence under
this Act shall make application to the Board in the prescribed form.
(2)
Every application shall:
(a) state the place or places of business of the applicant, including every branch office;
(b) where the applicant has or proposes to have 2 or more places of business, specify which of those places of business is to be the principal place of business; and
(c) specify the person who is to be in effective control of each branch office (if any).
Public notice of application to be given
18. (1) Every applicant for a licence shall cause a notice
of the application in the prescribed form to be published in the Gazette
on at
least two occasions and at an interval of not more than 14
days.
(2) A person may, within 1 month after the date of the
publication of the first notice referred to in subsection (1), give to
the Board
written notice of his or her desire to object to the issue of a licence to the
applicant.
(3) No objections shall be made under subsection (2) except on
one or more of the following grounds:
(a) that by the virtue of the provisions of section 16 the applicant is not eligible to apply for or obtain a licence;
(b) where the applicant is a person other than a company, that the applicant is not, by reason of his or her personal character or financial position, a proper person to be the holder of a licence;
(c) where the applicant is a company, that it is not, by reason of its financial position, or of the nature of any other business carried on or to be carried on by it, a proper person to be the holder of a licence;
(d) where the applicant is a company, that any person who will be an officer of the company if the licence is granted is not, by reason of his or her personal character or financial position, a proper person to be an officer or a licensee company.
(4) Every notice of objection filed
under subsection (2) shall state, with brief particulars, each ground on which
the objection is
made.
(5) The Registrar shall send a copy of each
notice of objection to the applicant.
Hearing and disposal of applications
19. (1) As soon as practicable after the receipt of an
application for a licence, the Board shall appoint a convenient time and place
for considering the application, and shall give at least 14 days notice thereof
in writing to the applicant and to any person who
has given notice of objection
to the issue of a licence to the applicant.
(2) The applicant and any
person objecting to the issue of a licence to the applicant shall be entitled to
be present and to be heard.
(3) Notwithstanding subsection (1), in any
case where no objection to an application for a licence is made within the
prescribed period
and the applicant advises the Board in writing that the
applicant does not wish to be heard in support of the application, the Board
may, if it thinks fit, decide to consider the application without any hearing
under this section.
(4) If the Board decides to proceed in
accordance with subsection (3) and it appears that the application is unlikely
to be successful,
the Board shall advise the applicant accordingly, and
subsection (1) shall, with necessary modifications, have effect.
Board not to hear or consider an application until satisfied of certain matters
20. (1) The Board shall not hear or consider an
application for a licence under this Act until it is satisfied that the
applicant
has:
(a) published a notice of the application in the Gazette in accordance with section 18(1); and
(b) where the applicant is not a company, passed any examination for the time being prescribed by regulations made by the Minister.
(2) Notwithstanding subsection (1),
no application for a licence shall be considered until after:
(a) the expiration of one month from the date of first publication of the notice required by section 18(1); and
(b) the payment of the prescribed fee.
Board may grant licence
21. (1) If, after hearing and considering an application
for a licence and all objections (if any) to its issue, the Board is
satisfied:
(a) that the applicant is, under section 16, eligible to hold and is not disqualified from holding a licence; and
(b) that, having regard to the applicant's character, financial position, the interests of the public, and where appropriate, the matters specified in section 22, the applicant is a fit and proper person to carry on the business of a real estate agent,
(c) the Board shall grant the licence, which shall be issued to the applicant in the prescribed form on payment of the prescribed fee.
(2) If the Board is not satisfied in
respect of the matters specified in paragraphs (a) and (b) of subsection (1),
the Board
shall not issue a licence to the applicant unless it is ordered to do
so by the Minister under section 80(2).
Evidence required by Board
22. At any hearing or consideration of an application for
a licence the Board shall require evidence of the following matters:
(a) in any case where the applicant proposes to carry on business as a real estate agent in partnership with any other person, that each partner holds a licence granted under this Act or has applied for a licence under this Act;
(b) in any case where the applicant is a company, the financial position of the company, and the eligibility of such of the officers of the company, as the Board thinks fit, to hold a licence under this Act;
(c) in any case where the applicant has, since the applicant was last issued with a licence under this Act, been suspended from carrying on the business of a real estate agent, that the period of suspension has expired, and that all costs, and expenses which the applicant may have been ordered to pay have been paid; and
(d) in any case where the applicant proposes to carry on business from any branch office that the person under whose control each such branch office will be, is entitled to hold a certificate of approval as a branch manager, and that the person will, in fact, be in effective control of that branch office.
Licence to be held in licensees name unless Board otherwise approves
23. (1) No licensee shall carry on business as a real
estate agent under any name that is not:
(a) in the case of an individual, his or her own name; or
(b) where the licensee is in partnership with any other person, the name of the firm or of one of the partners.
(2) An
applicant for a licence, or a licensee, may at any time apply in writing to the
Board to approve a name for the purpose
of subsection (1).
(3) The
applicant shall, forthwith after making application to the Board, publish a
notice of the application in the prescribed
form in the
Gazette.
(4) The application shall not be heard or considered by the
Board until the expiration of 14 days after the date of publication
of the
notice in the Gazette.
(5) The Board shall not approve a name under
subsection (2) if it considers that the name so nearly resembles the name of any
other
person, firm, or company carrying on business as a real estate agent in or
outside Fiji as to be likely to deceive, or that the name
is that of any person,
firm, or company:
(a) whose licence has been surrendered under section 29; or
(b) whose application for a licence has at any time been refused, and who or which has not subsequently obtained such a licence; or
(c) who or which is not eligible to hold a licence.
(6) Notwithstanding any of the
foregoing provisions of this section, no licensee shall carry on business of a
real estate agent under
more than one name or description.
(7) Every
licensee who contravenes subsection (1) or subsection (6) commits an
offence.
Effect of licence
24. A licence shall authorise the licensee to carry on the
business of a real estate agent in any part of Fiji at any place of business
that is from time to time endorsed on the licence.
Carrying on business at place not specified in licence
25. (1) No licensee shall carry on business as such at any
branch office not specified in his or her licence unless he or she has
first
obtained the approval of the Board.
(2) For the purposes of subsection
(1), a licensee may at any time apply to the Board, in a manner prescribed by
regulations, for
approval, and in the application shall:
(a) give the address of the proposed branch office; and
(b) give the name of the person who is to be the branch manager.
(3) The Board shall not give an
approval under this section unless it is satisfied that the person under whose
control the branch
office will be is entitled to hold a certificate of approval
as a branch manager, and that that person will be in effective control
of that
branch office.
(4) The Board may, if it is satisfied that a branch
manager is not in effective control of a branch office, cancel the approval
granted
under this section.
(5) Where the Board gives its approval to any
application under this section, the licence of the applicant shall be endorsed
accordingly
upon payment of the prescribed fee (if any) and the Registrar shall
make an appropriate note in the Register.
(6) Every person who knowingly
acts in contravention of subsection (1) commits an offence.
Duration of licence
26. Subject to subsection (2), a licence shall, unless it
is sooner cancelled or suspended in accordance with the provisions of this
Act,
remain in force for a period which:
(a) shall not be less than one year; and
(b) shall not exceed five years,
commencing on
the date of issue of the licence, and may, upon payment of the prescribed fee,
from time to time, be renewed for a further
period which shall be equivalent to
the period in respect of which the licence was originally granted.
Renewal of licence
27. (1) An application for the renewal of a licence shall
be made in the prescribed form to the Board not later than two months preceding
the date of expiry of the licence.
(2) Any person may, not later
than two months preceding the date of expiry of a real estate agents licence,
give to the Registrar
notice of that persons desire to object to the renewal of
the licence on any one or more of the following grounds:
(a) a ground specified in section 18(3) in relation to objections to the issue of a licence to any person; or
(b) that the applicant has not, either personally or through a branch manager as required by section 48, been in effective control of his or her business as a real estate agent at his or her registered office and each of his or her branch offices;
(c) that the applicant has permitted a person, other than a person lawfully carrying on the business of a real estate agent, to act as his or her agent in the conduct of his or her business; or
(d) that the applicant has not shown that each branch office from which he or she carries on business was under effective control of a branch manager as required by section 48; or
(e) having regard to the character or fitness of any salesperson or branch manager employed or intended to be employed by the applicant, it is not in the public interest that the licence be renewed,
and subsections (4) and (5) of section 18,
with any necessary modifications, shall have effect as if the notice of
objection under
this section were a notice of objection to the issue of a
licence.
(3) In any case where no notice of objection is given
under subsection (2), the Board may either:
(a) grant the application without further inquiry; or
(b) call and hear the applicant on any matter affecting the application.
(4) After calling and hearing the
applicant under subsection (3) (b), the Board may grant the
application.
(5) Where a notice of objection is given within the
time allowed, the application shall be heard and determined by the Board
and
sections 20, 21 and 22, with any necessary modifications, shall have effect as
if the application were an application for the
issue of a
licence.
(6) Where an objection is made on the ground set out in
subsection (2) (d) and is allowed by the Board, the Board may nevertheless
grant
a renewal of the licence, but all references to the branch office in respect of
which the objection was made shall be deleted
from the licence and from the
Register.
(7) Notwithstanding that the application for renewal is not
filed by the date of the expiry of the licence, the Board may hear and
determine
the application for renewal of the licence, but in such a case the applicant
shall pay such late application fee as may
be prescribed.
(8) Where
an application for renewal of a licence is granted, the licence shall be
endorsed accordingly on payment of the prescribed
fee.
(9) Where an
application for the renewal of a licence has been made but not determined before
the date on which the licence would
otherwise expire, the licence shall,
notwithstanding section 26, continue in force until the application is
determined.
Special provisions in respect of partnerships and companies
28. (1) No person shall, after the issue to him or her of
a licence, enter into partnership with any person in respect of his or her
business as a real estate agent without the prior approval of the Board; and the
Board shall refuse to grant its approval unless
it is satisfied that the
proposed partner holds a licence as a real estate agent.
(2) Where a
company is the licensee, a person who was not, at the date of the issue of the
licence an officer of the company, shall
not act in such capacity in respect of
that company without the prior approval of the Board upon an application made in
that behalf;
and the Board shall refuse to grant its approval unless it is
satisfied that:
(a) that person is eligible to apply for or obtain a licence; or
(b) that person does not hold an office in respect of which the Board has required the holder under section 16(3) to be eligible to apply for or obtain a licence; or
(c) if that person is not eligible to apply for or obtain a licence, the real estate agency business of the company is disproportionately small in relation to any other business of the company.
(3) A
person who knowingly acts in contravention of subsection (1) or subsection (2)
commits an offence.
Voluntary surrender of licence
29 (1) A licensee may at any time surrender his or her
licence by forwarding a written notice to that effect, together with the
licence,
to the Registrar.
(2) The Registrar shall endorse on the notice
and the Register the date on which he or she receives the notice, and the
licence shall,
as from that date, cease to have effect.
(3) Where the
licensee forwards to the Registrar a notice under subsection (1), the Registrar
shall forthwith forward a copy of it
to the auditor of the licensees trust
accounts, together with written notice of the date from which the licence ceased
to have effect.
(4) The surrender of a licence under this section shall
not affect the licensee's liability:
(a) to pay any fee or other money payable or to be payable in accordance with this Act on or before the date on which the licence would, but for its surrender, expire;
(b) to perform any obligation required to be performed by him or her by or under this Act on or before that date; or
(c) for any act done or default made before the date on which the licence ceased to have effect.
Permits
30 (1) Notwithstanding section 15, the Board may, on the
application of any person (not being a licensee), upon such terms and conditions
and for such period as the Board thinks fit, issue a permit in writing to that
person, after payment of the prescribed fee (if any),
enabling him or her to
enter into any specified transaction or series of transactions which, but for
the provisions of this section,
may constitute an offence under section
15.
(2) If, after the issue of a permit under this section, the Board is
satisfied that the holder of the permit has not complied with
all the conditions
of the permit, the Board may, by notice in writing to the holder, revoke the
permit.
(3) A permit issued by the Board under subsection (1) may, on
application by the holder and on payment of any prescribed fee, be extended
for
such further period as the Board thinks fit.
(4) Every permit, revocation
of permit or extension of permit shall be published in the Gazette.
PART 4: REGISTRAR OF REAL ESTATE AGENTS, ETC.
Registrar of real estate agents, etc
31. (1) There shall be a Registrar of Real Estates Agents
and such other officers and staff as the Board, with the approval of the
Minister, considers necessary for carrying out the functions of the
Board.
(2) The persons referred to in subsection (1) shall be public
officers.
Establishment of register of real estate agents, etc
32. (1) For the purpose of this Act the Registrar shall
establish and maintain a register of real estate agents.
(2) The Register
shall be open to inspection by the public during ordinary office hours on
payment of the prescribed fee.
(3) On payment of the prescribed fee, the
Registrar shall send to any person requesting the same, in writing, a copy of
any specified
entry in the Register.
(4) The Registrar shall, not later
than the 30th day of June in each year, publish in the Gazette a notice of all
real estate agents,
branch managers and salespersons, who hold valid licences or
valid certificates of approval, as the case may be.
Issue, etc., of licences and certificates of approval to be recorded in Register
33. (1) Whenever a licence or certificate of approval is
issued, renewed, or cancelled under this Act, or a licensee or the holder
of a
certificate of approval is suspended, the Registrar shall make an appropriate
entry in the Register, showing:
(a) in the case of the issue of a licence, the name and address of the licensee, the qualification by virtue of which the licensee is eligible to hold a licence under this Act, the address of the licensees registered office and of any approved branch office, and the name of the branch manager of such branch office, and the date on which the licence was granted;
(b) in the case of the issue of a certificate of approval, the name and address of the holder and his or her employer, and the date on which the certificate of approval was granted;
(c) in the case of the renewal of a licence or certificate of approval, the date on which the renewal was granted; and
(d) in the case of the cancellation of a licence or certificate of approval or the suspension of a licensee or holder of a certificate of approval, the date and the grounds on which the cancellation or suspension was made.
(2) The Registrar shall also, in respect
of any entry, record such other particulars as may be required by this Act or as
may from
time to time be prescribed.
Correction of Register
34. (1) If any person has been issued with a licence or
certificate of approval under this Act by reason of any false or fraudulent
representation or statement, or if any person not entitled to be issued with a
licence or certificate of approval under this Act
has one so issued, the Board
shall cancel that licence or, as the case may require, that certificate, and
cause the name of the licensee
or holder to be removed from the Register, and
the fact of the cancellation and removal shall be notified by the Registrar in
the
Gazette.
(2) If any particulars appearing in the Register in respect
of the qualifications of any licensed real estate agent are proved to
the
satisfaction of the Board to be, or are to the knowledge of the Board, false or
erroneous in any respect, the Board shall direct
the Registrar to remove those
particulars from the Register, and the Registrar shall amend the Register
accordingly.
(3) Subsection (2) shall apply notwithstanding that at the
time the entry in the Register was made the real estate agent was actually
possessed of the qualification particulars of which appear in the Register, or
that at that time the entry was otherwise correct.
Registrar to keep copies of permits
35. (1) The Registrar shall establish and maintain a file
containing a copy of every permit issued pursuant to section 30, together
with
all associated correspondence.
(2) The file shall be open to inspection
by the public during ordinary office hours on payment of the prescribed fee (if
any).
Wrongfully procuring issue of licence, certificate of approval, etc.
36. Every person who:
(a) wilfully makes, or causes to be made, any false entry in, or falsification of, the Register; or
(b) by making or producing or causing to be made or produced any false or fraudulent representation or statement, whether verbally or in writing, procures or attempts to procure for himself or for any other person:
(i) the issue of a licence, certificate of approval or permit;
(ii) the renewal of any such licence or certificate of approval or the extension of any such permit; or
(iii) the employment of an unqualified person,
commits an
offence.
Lost licences, certificates and permits
37. Where the Registrar is satisfied that any licence,
certificate of approval or permit has been lost the Registrar may, on payment
of
the prescribed fee (if any), issue the holder a substitute licence, certificate
of approval, or permit, as the case may be.
Inspection of real estate agents books and documents
38. (1) This section applies in any case where the Board
is satisfied, in respect of any real estate agent:
(a) that he or she, or, where the real estate agent is a company, any officer of the company, has been convicted by a court of competent jurisdiction of theft or other criminal offence in relation to the money or other property of any other person;
(b) that there is reasonable cause to believe that any money or other property entrusted to the real estate agent has been stolen by him or her, or his or her employee or agent, or, where the real estate agent is a company, by any officer, employee, or agent of the company; or
(c) that he or she is, owing to physical or mental disability, unable properly to administer his or her trust account; or
(d) that he or she has died; or
(e) that he or she has been adjudicated a bankrupt; or
(f) where the real estate agent is a company, that the company is being wound up, whether by the Court or voluntarily or subject to the supervision of the Court; or
(g) that the licence of the real estate agent has been cancelled or that the real estate agent has been suspended; or
(h) that the real estate agent has ceased to carry on business and has neglected to wind up his or her trust account after reasonable notice has been given to him or her by the Registrar requiring him or her to do so.
(2) In any case to which this section
applies, the Board may, if in its opinion it is expedient to do so, direct the
Registrar, for
the purpose of inspection by the Board, to take possession of any
ledger, books of accounts, records, deeds, or other documents belonging
to the
real estate agent or held in the course or his or her business in his or her
possession or under his or her control or, where
the real estate agent is a
company, in the possession or under the control of any officer, employee, or
agent of the company.
(3) Every person having possession or control of
any such ledgers, books of account, records, deeds, or other documents who
refuses
or fails without reasonable excuse, the proof of which shall be upon
him, to deliver them or cause them to be delivered to the Registrar
forthwith
upon demand by the Registrar commits an offence.
Receipt for documents taken into possession
39. (1) Upon taking possession of any documents under
section 38, the Registrar shall forthwith serve upon the real estate agent
concerned
a notice giving particulars of the document and the date on which it
was taken into the Registrars possession.
(2) If any such document is the
property of a firm of real estate agents in which the real estate agent is a
partner, a copy of the
notice shall be served on each partner in the
firm.
(3) Within 14 days after any such notice has been served, the real
estate agent,
or any of his or her partners, may apply to a Court for an
order directing the Registrar to return any document specified in the order
to
the person from whom it was received, or for such other order as the Court
may think fit.
Expenses of Board in investigating affairs of real estate agent
40. The reasonable expenses of the Registrar acting in the
exercise of any of the powers conferred by section 38 in respect of any
real
estate agent may, if any disciplinary proceedings have been brought under this
Act against the real estate agent who has accordingly
been disciplined, be
recovered from that real estate agent.
PART 5: APPROVAL OF SALESPERSONS
Salesperson must have certificate of approval
41. A person who:
(a) being a licensed real estate agent, engages or employs as a salesperson in his or her business as a real estate agent any person in respect of whom a certificate of approval issued under section 42 is not then in force; or
(b) not being the holder of a certificate of approval then in force, acts as a salesperson on behalf of a licensed real estate agent; or
(c) acts as a salesperson for more than one licensed real estate agent in any case where the agents are not partners of one another in the business in which that person is engaged or employed as a salesperson,
commits an offence.
Application for approval of salesperson
42. (1) An application for the approval of a salesperson
may be made to the Board at any time by a licensee or an applicant for a
licence
on behalf of any person who intends to become a salesperson and who has passed
the examination (if any) prescribed by the
Minister by regulations in respect of
salespersons.
(2) An application under this section shall be made in the
prescribed form.
Certificate of approval of salesperson
43. (1) If, after considering an application for a
certificate of approval, the Board is satisfied that having regard to the
character
and general knowledge of the person in respect of whom the application
is made and to the interest of the public, the person is a
fit and proper person
to be employed as a salesperson by a real estate agent, the Board shall, on
payment of the prescribed fee,
issue to the applicant a certificate of approval
in the prescribed form.
(2) If the Board is not so satisfied, it
shall appoint a time and place for hearing the application, and shall give at
least
14 days' notice of the hearing to the applicant.
(3) In any
case to which subsection (2) applies, the person in respect of whom the
application is made shall be entitled to appear
and be heard as a party to the
application.
(4) If, after hearing an application, the Board is
satisfied of the matters specified in subsection (1), it shall, on payment
of
the prescribed fee, issue to the applicant a certificate of approval in the
prescribed form.
(5) Where the Board is not satisfied of the matters
specified in subsection (1), it shall not issue a certificate of approval to the
applicant unless ordered to do so by the Minister or the Court.
Duration of certificate of approval
44. A certificate of approval shall, unless it is sooner
cancelled or suspended in accordance with the provisions of this Act, remain
in
force for a period of one year commencing on the date of the approval, whether
or not the salesperson continues to be employed
by the person on whose
application the approval was given, and may from time to time, upon payment of
the prescribed fee, be renewed
for a further period of one year.
Renewal of certificate of approval
45. (1) An application for the renewal of a certificate of
approval shall be made to the Board in the prescribed form
by the
licensee by whom the salesperson is employed not later than two months preceding
the date of expiry of the certificate.
(2) Where an application for the
renewal of a certificate of approval is granted, the certificate of approval
shall be endorsed accordingly
on payment of the prescribed fee.
(3)
Where an application for the renewal of a certificate of approval has been made
but not determined before the date on which
the certificate would otherwise
expire, the certificate shall continue in force until the application is
determined.
Custody of certificates of approval
46. (1) Every certificate of approval and every renewal
thereof shall:
(a) at all times, be kept in the custody of the real estate agent who employs the salesperson in respect of whom the certificate or renewal was issued; and
(b) on request by a client, be produced to that client by the real estate agent.
(2) When a salesperson leaves the
employ of a real estate agent, the agent shall, within 7 days after the
salesperson leaves his or
her employment, forward the salespersons current
certificate of approval to the Registrar.
(3) If any such salesperson, in
respect of whom a certificate of approval is for the time being in force,
commences employment with
a real estate agent, the agent shall forthwith request
the Registrar to forward to him or her the certificate of approval; and the
Registrar shall as soon as practicable after payment of the prescribed fee (if
any) forward the certificate accordingly.
(4) A real estate agent who
fails or refuses to comply with subsection (1) or (2) commits an
offence.
Voluntary surrender of certificate of approval
47. (1) A salesperson may at any time surrender his or her
certificate of approval by giving written notice to that effect to his
or her
employer, who shall forthwith send the notice together with the salesperson's
certificate of approval to the Registrar.
(2) The Registrar shall endorse
on the notice the date on which he or she received the notice, and the
certificate shall, as from
that date, cease to have effect.
(3) The
surrender of a certificate of approval under this section shall not affect the
salesperson's liability for any act done
or default made before the date on
which the certificate ceased to have effect.
PART 6: SUPERVISION OF BUSINESS
Supervision of business
48. (1) A licensee or, if the licensee is a company, an
officer who is eligible to hold a licence and who is designated by the company
for the purpose, shall be in effective control of the principal place of
business of a real estate agent.
(2) Every branch office of a real estate
agent (as specified in the real estate agents licence) shall be under the
effective control
of a person approved by the Board, in accordance with sections
50 to 52, as a branch manager.
(3) A licensee may at any time, by notice
in writing given to the Registrar, change the address of his or her principal
place of business
to that of any of his or her branch offices.
(4) For
the purpose of this section, the Board may, on application made in writing in
that behalf by the licensee determine which
place of business of that licensee
is his or her principal place of business.
(5) Every real estate agent
who, for any continuous period of more than 4 weeks, allows any person other
than one specified in subsection
(1) or (as the case may require) subsection (2)
to be in effective control of his or her principal place of business or any
branch
office, commits an offence against this Act.
Application for approval of branch manager
49. An application for the approval of a branch manager
may be made to the Board at any time by a licensee or an applicant for a licence
on behalf of any person who intends to become a branch manager.
Criteria for approval as branch manager
50. On an application under section 49, a person may be
approved as a branch manager if:
(a) that person is:
(i) eligible under this Act to hold a licence; and
(ii) the holder of a certificate of approval to act as a salesperson issued under section 43; or
(b) that person:
(i) has attained the age of 21 years; and
(ii) is the holder of a certificate of approval to act as a salesperson issued under section 43; and
(iii) has passed any examinations for the time being prescribed for persons intending to become branch managers; and
(iv) has had, during the preceding 5 years, at least 3 years practical experience working full-time or primarily and predominantly in the real estate agency work; or
(c) that person:
(i) has attained the age of 21 years; and
(ii) is the holder of a certificate of approval to act as a salesperson issued under section 43; and
(iii) is recognised by the Board as having been, at any time within the 5 years immediately preceding the date of the commencement of this Act, the person in effective control of a branch office; and
(iv) has had, during the preceding 5 years, at 3 years practical experience working full-time or primarily or predominantly in real estate agency work.
Powers of Board in respect of application for approval for branch manager
51. (1) If, after consideration of an application made
under section 49, the Board is satisfied:
(a) that the proposed branch manager is, under the section 50, eligible to hold, and is not disqualified from holding, a certificate of approval as a branch manager; and
(b) that, having regard to the interests of the public, the proposed branch manager is a fit and proper person to be employed as a branch manager by a real estate agent,
the Board shall, on payment of
the prescribed fee (if any), issue to the applicant a certificate of
approval.
(2) If the Board is not so satisfied, it shall appoint a time
and place for hearing the application, and shall give at least 14 days
notice of
the hearing to the applicant.
(3) In any case to which subsection
(2) applies, the person in respect of whom the application is made shall be
entitled to appear
and be heard as a party to the application.
(4) If,
after hearing an application, the Board is satisfied of the matters specified in
paragraphs (a) and (b) of subsection (1),
it shall, on payment of the prescribed
fee (if any), issue to the applicant a certificate of approval.
(5) Where
the Board is not so satisfied it shall not issue a certificate of approval to
the applicant unless ordered to do so by the
Minister under section
80(2).
(6) Sections 44 to 47 shall apply with any necessary modifications
to a certificate of approval as a branch manager granted under
this
section.
(7) A certificate of approval issued under this section
shall authorise the employment or engagement of the person named in
it as the
branch manager of any branch office.
Licensee to notify Registrar of transfer of branch manager
52. Where a licensee transfers a branch manager from one
branch office to another, the licensee shall give notice in writing to the
Registrar of the transfer.
PART
7: DUTIES OF REAL ESTATE AGENTS
Licensee to display notice on place of business, etc.
53. (1) Every licensee shall exhibit and keep exhibited in
a prominent place at each of the licensees places of business, so as to
be read
easily from outside the place of business, a notice of the licensees name and of
the fact that the licensee is a licensed
real estate agent, together with the
name or style under which the licensee carries on business as a real estate
agent, if the business
is not carried on in the licensees own name.
(2)
The information referred to in subsection (1) shall also be clearly shown on all
notices, advertisements, and other publications
issued by or on behalf of the
licensee, on all hoardings and other signs erected on land advertised by the
licensee as being for
sale or to let or lease, and in all letters, accounts,
agreements, and other documents sent out, entered into, or published by or
on
behalf of the licensee in the course of or in connection with the licensees
business as a real estate agent.
(3) Every licensee who fails to
comply with subsection (1) or subsection (2) of this section commits an
offence.
Duty of real estate agent with respect to money received in course of business
54.- (1) Subject to the provisions of this section, all
money received by a real estate agent in respect of any transaction in his
or
her capacity as a real estate agent shall, as soon as is reasonably practicable
after receipt thereof, be paid to the person lawfully
entitled thereto or as
that person may in writing direct.
(2) Where a real estate agent is
in doubt, on reasonable grounds, as to the person who is lawfully entitled to
any such money,
he or she shall, in accordance with subsection (3), retain that
money in a general or separate trust account until the person
lawfully
entitled has been ascertained, but shall take all reasonable steps to ascertain
as soon as practicable the person so entitled.
(3) Pending the payment of
any such money, it shall be paid by the real estate agent into a general or
separate trust account at any
bank carrying on business in the Fiji Islands
under the authority of an Act, and, subject to subsection (5) of this section,
the
money shall not be drawn upon except for the purpose of paying it to the
person entitled or as that person may in writing direct.
(4) No money to
which this section applies shall be available for payment of the real estate
agents debts, nor shall it be liable
to be attached or taken in execution under
the order or process of any Court at the instance of any of the real estate
agent's creditors.
(5) Nothing in this section shall be construed so as
to take away or affect any just lien or claim which the real estate agent may
have on or in respect of any money received by the real estate agent, being
money to which this section applies.
(6) A licensee who contravenes a
provision of this section commits an offence.
Real estate agent to have written contract of agency
55. (1) No real estate agent shall be entitled to sue for
or recover any commission, reward, or other valuable consideration in respect
of
any service or work performed as such real estate agent, unless:
(a) the real estate agent was the holder of a licence as a real estate agent under this Act at the time of the performance of the service or work; and
(b) the real estate agents appointment to act as agent or perform that service or work is in writing (a contract of agency) signed either before or after the performance of that service or work by the person to be charged with the commission, reward, or consideration or by some person on his or her behalf lawfully authorised to sign the appointment.
(2) For the purposes of
subsection (1)(b) the Minister may make regulations prescribing provisions which
must be included in every
contract of agency.
Purchase or lease by real estate agent voidable
56. (1) A real estate agent, or a partner or employee of a
real estate agent, or an officer of a company that is a real estate agent,
shall
not, without the consent on the prescribed form of his or her principal, whether
directly or indirectly:
(a) purchase or take on lease or be in any way concerned or interested, legally or beneficially, in the purchase or taking on lease of any land which the real estate agent, partner, employee or officer, as the case may be, is commissioned by the principal to sell or lease; or
(b) sell or lease any such land to a spouse or child.
(2) A contract made in contravention of
this section is voidable at the option of the principal.
(3) No
commission shall be payable in respect of any such contract, whether the
principal has avoided it or not.
(4) Any commission paid in respect
of the contract shall be repayable by the real estate agent to his or her
principal and shall
be recoverable by the principal as a debt.
(5)
Without prejudice to the provisions of subsections (2) to (4), a person who
contravenes subsection (1) commits an offence.
Real estate agent to provide valuation
57. (1) Subject to subsection (2), every real estate
agent, partner or employee of a real estate agent, or officer of a company
that
is a real estate agent shall:
(a) before seeking the consent of a principal for the purposes of section 56; or
(b) with the agreement of the principal, within 14 days after obtaining that consent, supply at his or her own expense to the principal, a valuation of the land in question made by an independent valuer registered under the Valuers Registration Act 1986.
(2)
Subsection (1) does not apply to an employee of a real estate agent (whether a
company or not) that carries on other business
in addition to its business as a
real estate agent and the employees work primarily and predominantly relates to
that other business.
(3) A person who contravenes subsection (1) commits
an offence.
Real estate agent to provide copy of offer or agreement
58. (1) Every real estate agent shall, forthwith after any
person has signed an offer or an agreement or other form of contract to
purchase
or to take on lease any land through the agency of the real estate agent, give
to that person a true copy of the offer or
the agreement or other form of
contract.
(2) For the purpose of subsection (1) the Minister may make
regulations prescribing provisions which must be included in every offer
or
agreement or other contract to purchase or take on lease any land.
(3)
Every real estate agent who fails to comply with subsection (1) commits an
offence.
Real estate agent to keep record of transactions
59. (1) A real estate agent shall, in respect of such
matters as may be prescribed by regulations, establish and maintain accurate,
complete and up-to-date records of all transactions undertaken by the real
estate agent in the course of carrying on the business
of a real estate
agent.
(2) A real estate agent shall:
(a) at the time of application for renewal of a licence; or
(b) upon demand made by the Board,
provide the
Board with details, or copies, or both, of the records referred to in subsection
(1).
(3) A real estate who fails to comply with a provision of this
section commits an offence.
PART 8: RECEIPT OF MONEY AND AUDIT OF ACCOUNTS
Treatment of certain money received by real estate agent
60. For the purposes of sections 54 and 61 to 63 and
of any regulations made under this Act relating to the audit of trust accounts
of real estate agents:
(a) any money received by a real estate agent by way of rent from the letting of any land, and any principal or interest received by a real estate agent arising out of any transaction affecting land, shall be deemed to be money received by the real estate agent in the course of business as such real estate agent;
(b) any insurance premiums received by a real estate agent on behalf of an insurance company, and any other money received by a real estate agent in the course of any agency business conducted by him or her in conjunction with his or her business as a real estate agent, shall be deemed not to be money received by him or her in his or her capacity as a real estate agent.
Money to be held by real estate agent for 10 days
61. (1) Except pursuant to an order of a Court of
competent jurisdiction or an authority signed by all the parties to a
transaction,
where a real estate agent receives any money (other than money
received by way of rent from the letting of any land) in respect of
any
transaction, the real estate agent shall not pay that money to any person for a
period of 10 days after the date of receipt.
(2) If at any time while a
real estate agent holds any money on behalf of any party to a transaction
referred to in subsection (1)
the real estate agent receives written notice of
any requisitions or objections in respect of the title to any land affected by
the
transaction, the real estate agent shall not at any time pay that money to
any person except in pursuance of such an order or authority.
(3) Every
person who contravenes or fails to comply with subsection (1) or (2) commits an
offence.
Real estate agent to furnish account to principal
62. (1) Forthwith on the demand of the person for
whom a real estate agent has acted or if no such demand is made, then within
28
days after receipt by the real estate agent of any money in respect of the
sale, lease, or other disposition of land, or
in respect of any other
transaction in his or her capacity as a real estate agent, every real estate
agent shall render to the person
lawfully entitled thereto an account in
writing, setting forth particulars of all such money, and as to its
application.
(2) It shall be sufficient compliance with the provisions of
this section in respect of rent or interest collected by a real estate
agent if
the real estate agent renders an account to the person lawfully entitled at
monthly intervals or at such longer intervals
as that person may in writing
approve.
(3) Where a real estate agent is in doubt on reasonable grounds
as to the person who is lawfully entitled to any such money, the real
estate
agent shall not be required to render an account under this section until the
person lawfully entitled has been ascertained,
but the real estate agent shall
take all reasonable steps to ascertain as soon as practicable the person so
entitled.
(4) If a real estate agent refuses or, for a period of 7 days
after demand, neglects or fails to render an account, or, in the absence
of the
demand, neglects or fails to render an account within a period of 28 days
allowed under subsection (1), the real estate agent
commits an
offence.
(5) Subject to section 61 and section 54(2), where a real estate
agent who is required pursuant to section 54(1) to pay any money
received to the
person lawfully entitled thereto refuses so to do, or for a period of 10 days
after demand fails to pay that money
to that person or as that person directs,
the real estate agent commits an offence.
Rendering false account
63. A person commits an offence if that person renders an
account purporting to be an account of any money received by him or her
in his
or her capacity as a real estate agent, and the person knows or ought reasonably
to have known that the account was false
in a material particular.
Real estate agents trust accounts to be audited
64. (1) Every general or particular trust account of a
real estate agent shall be audited at the times and in the manner prescribed
by
regulations made under this Act.
(2) A real estate agent who fails to
appoint an auditor within the time prescribed, or fails to comply with the
provisions of any
regulations relating to the audit of real estate agents trust
accounts commits an offence.
(3) All information obtained by an auditor
in the course of the audit of any trust account under this Act shall be treated
as confidential,
subject only to such rights of publication as may be prescribed
in furtherance of the proper purposes of the audit.
Administration of trust account in certain cases
65. (1) This section applies in any case where the Board
is satisfied that a real estate agent:
(a) is, owing to physical or mental disability, unable properly to administer a trust account; or
(b) has died; or
(c) has been adjudicated a bankrupt; or
(d) has had his or her licence revoked; or
(e) has been suspended from carrying on the business of a real estate agent; or
(f) has ceased to carry on the business of a real estate agent and has neglected to wind up his or her trust account after reasonable notice has been given by the Board requiring such winding up,
and that
any money entrusted to that real estate agent is held by a banker in any trust
account of the real estate agent.
(2) In any case to which this section
applies the Board may, if it is satisfied, after inspection of the real estate
agents books
and documents under section 38 or any other provision of this Act,
that it is expedient so to do, appoint any one or more persons
who, in the
opinion of the Board possess appropriate qualification and adequate experience,
to administer the trust account for such
period as the Board thinks fit.
(3) A copy of every appointment made by the Board under this section
shall be served on the banker, and on receipt of such copy the
banker shall
allow the person or persons appointed to administer the trust on behalf of the
Board.
PART 9: DISCIPLINARY POWERS OF BOARD
Grounds on which licence may be cancelled by Board
66. The Registrar or a member of the Board or any other
person with the leave of the Board, may at any time apply in the prescribed
form
to the Board for an order cancelling a real estate agent's licence, and the
Board may cancel the licence, on any of the following
grounds:
(a) that a licensee or, in the case of a licensee company, an officer of the company, has been convicted of a crime involving dishonesty;
(b) that a licensee or, in the case of a licensee company, an officer of the company, has been guilty of misconduct in the course of the business of the real estate agent, and that by reason of that misconduct it is in the interest of the public that the licence be cancelled;
(c) that a licensee or, in the case of a licensee company, an officer of the company, has been shown to the satisfaction of the Board to be of such a character that it is in the interest of the public that the licence be cancelled;
(d) that a licensee or, in the case of a licensee company, the chief executive officer of the company, has failed to be in effective control of any place of business in respect of which it is that person's duty to be in effective control or has failed to ensure that any branch manager of a branch office has been in effective control of that branch, and it is in the interest of the public that the licence be cancelled;
(e) that a licensee or, in the case of a licensee company, an officer of the company, has been adjudicated bankrupt, or has made any assignment for the benefit of his or her creditors, or has made any composition with his or her creditors; or
(f) that in the case of a licensee company, the company is in receivership or in liquidation;
Board may suspend real estate agent
67. (1) On any application under
section 66, the Board may, if it is satisfied that a ground exists for ordering
the cancellation
of a real estate agents licence, instead of ordering the
cancellation of that licence, suspend the licensee or where the licensee
is a
company, the company or any officer of the company, from carrying on the
business of a real estate agent for any period not
exceeding 3 years as the
Board thinks fit.
(2) While an order of suspension continues in
force the person to whom the order relates shall not carry on the business of a
real estate agent, or assist in the operation of any company that is a
licensee.
(3) A person who knowingly acts in contravention of
subsection (2) commits an offence.
(4) An order of suspension made
under this section may, on application to the
Board by the person to whom the
order relates, be varied or revoked by the Board at any time.
Board may hold inquiry
68. (1) Every application made
to the Board under section 66 may be investigated by a person appointed for that
purpose by the Board,
and that person shall report thereon in writing to the
Board.
(2) On receipt of the report referred to in subsection (1), the
Board shall, unless it is satisfied that there is no reasonable ground
for the
application, hold an inquiry into the application, and shall give to the real
estate agent concerned, and to the applicant,
at least 14 days notice in writing
of its intention to hold an inquiry, of the time and place of the hearing, and,
in the case of
the real estate agent, the nature of the application to be
inquired into.
(3) The inquiry shall be conducted and the decision made
by the Chairperson and at least 2 members of the Board, of whom one shall
be a
member who is not a real estate agent.
(4) If a member of the
Board is the applicant under section 66, that member shall not be appointed to
investigate the application
under subsection (1) and shall not, except as such
applicant, take part in the conduct of the inquiry or in the making of the
decision.
(5) At the inquiry the real estate agent and the applicant
concerned shall be entitled to be present and to be heard.
(6) Every
application shall be prosecuted at the inquiry by the applicant or such other
person as the applicant with the consent of
the Chairperson of the Board, may
appoint.
Interim suspension pending determination of application
69. (1) Where an application has been made to the Board
under section 66 or 70(1) and the Board is satisfied that it is necessary
or
desirable to do so having regard to the interests of the public, and to the
possibility of further loss or damage occurring if
it does not make an order
under this section, the Board may make an order suspending the licensee or
salesperson or branch manager
in respect of whom the application has been made
or, where the licensee is a company, the company or any officer of the company,
until the application has been heard and determined.
(2) The Board shall
notify the licensee, officer, salesperson or branch manager, in writing of any
order of suspension made by it
under this section and of its reasons for making
the order, and shall, as soon as practicable thereafter, afford the licensee,
officer,
salesperson or branch manager an opportunity to make representations to
the Board for the revocation of the order.
(3) An order of suspension
made under this section shall come into force when the licensee, officer,
salesperson or branch manager
is notified of the order in accordance with
subsection (2), and, while it continues in force:
(a) the licence of the licensee shall cease to have effect and shall not be renewed nor shall a new licence be granted;
(b) the officer of the company shall (if applicable) cease to be eligible to apply for a licence in his or her own right for the purposes of section 16(3); and
(c) the certificate of approval of the salesperson or branch manager shall cease to have effect and shall not be renewed nor shall a new certificate be granted.
(4) The Board may at any time,
on its own motion or on the application of the licensee, officer, salesperson or
branch manager
revoke an order of suspension made under this section.
Board may cancel certificate of approval or suspend salesperson, etc.
70. (1) On application made to the Board in that behalf by
the Registrar or a member of the Board or by any other person with the
leave of
the Board, the Board may cancel the certificate of approval issued in respect of
any person or may suspend that person for
such period not exceeding 3 years as
the Board thinks fit on the ground:
(a) that since the issue of the certificate of approval the person has been convicted of any crime involving dishonesty; or
(b) that the person has been, or has been shown to the satisfaction of the Board to be, of such a character that it is, in the opinion of the Board, in the public interest that the certificate of approval be cancelled or that the person be suspended;
(2) The Board shall, as soon as
practicable after receiving an application under this section, send a copy of
the application to the
salesperson or branch manager, and shall not hear or
consider the application until the expiration of 10 days after the date
of
receipt of the copy by the salesperson or branch manager.
(3) The
salesperson or branch manager and the applicant concerned shall be entitled to
appear and be heard by the Board in respect
of the application.
(4) If a
member of the Board is the applicant under subsection (1), the member shall not
take part in the decision of the Board.
Evidence of offences
71. (1) For the purposes of this Part, a certificate
containing the substance of the conviction of any person of any crime involving
dishonesty and purporting to be signed by the Registrar of the Court by which
the offender was convicted, shall, until the contrary
is proved, be sufficient
evidence of that conviction without proof of the signature or official character
of the person appearing
to have signed the certificate.
(2) On any
application under section 66 or 70 any statement in writing, signed by the
Chairperson of the Board and by the real
estate agent or officer of a licensee
company or salesperson or branch manager concerned, or by their legal
practitioner or counsel
setting out any facts admitted as having been proved at
any inquiry held by the Board under section 68, shall be admissible as evidence
of those facts.
Venue
72. The hearing of any application or inquiry by the Board
under section 69 shall, unless otherwise agreed between the Board and the
real
estate agent or officer of the company or salesperson or branch manager
concerned, be held in the locality in which the principal
place of business of
the real estate agent or the company is situated.
Right of real estate agent to be heard
73. Except where the Board makes an order of interim
suspension under section 68, the Board shall not exercise any of its powers
under
this Part without first giving to the real estate agent or officer of the
company or salesperson or branch manager concerned a reasonable
opportunity to
be heard.
Witnesses may be required to attend and give evidence
74. (1) The Board may, by notice in writing signed by the
Chairperson, require any person to attend and give evidence before it at
the
hearing of an application or inquiry under this Part, and to produce all books
and documents in that person's custody or under
that persons control relating to
the subject-matter of any such application or inquiry.
(2) The Board may
require evidence to be given on oath or affirmation, either orally or in
writing, and for that purpose the Chairperson
of the Board, or other person
presiding may administer an oath or affirmation.
(3) A person who,
without lawful justification, refuses or fails:
(a) to attend and give evidence when required to do so by the Board;
(b) to answer truly and fully any question put to him or her by a member of the Board; or
(c) to produce to the Board any book or document required by the Board to be produced by that person,
commits an
offence.
(4) Every witness giving evidence or attending to give evidence
at the hearing of an application or inquiry by the Board under this
Part shall
be entitled to such sum for expenses and loss of time as a witness would be
entitled to in criminal proceedings in a Court.
(5) Subject to any
order as to costs made by the Board, all sums to which any witness is entitled
under subsection (4) shall
be paid to the witness, but, if requested by the
witness, travelling expenses shall be paid before the time set for the hearing
or
inquiry.
Rules of Procedure
75. The Board may from time to time make rules in respect
of making, hearing and determination of applications and inquiries required
to
be made, heard or determined by them under this Part.
Jurisdiction of Court not limited
76. Except as expressly provided in this Part, nothing in
this Part shall be construed to limit the jurisdiction of any Court.
PART 10: APPEALS
Appeals to Minister
77. (1) In every case where the Board:
(a) refuses, under section 21, to grant an application for a licence; or
(b) cancels a licence under section 66 or suspends any person under section 69,
the applicant or, as the case may require,
the licensee or officer of a licensee company, shall have a right of appeal to
the Minister.
(2) In every case where the Board:
(a) refuses under section 43 or 51 to grant an application for a certificate of approval; or
(b) refuses under section 45 to grant an application for the renewal of a certificate of approval; or
(c) cancels a certificate of approval or suspends a salesperson or a branch manager,
the applicant, licensee, salesperson
or branch manager, as the case may be, shall have a right to appeal to the
Minister.
(3) In every case where the Board, under section 30, refuses to
grant a permit or to extend a permit, or revokes a permit, the applicant
or, as
the case may require, the holder, shall have a right of appeal to the
Minister.
(4) Every such appeal shall be brought within 28 days after the
date on which the appellant was notified of the decision appealed
against, or
within such further period as the Minister may allow.
Rights of licensee pending disposal of appeal in certain cases
78. Where a decision of the Board is to cancel a licence
or refuse an application to renew any licence, that decision shall be of
no
effect until:
(a) where notice of an appeal against that decision has been given within the period specified in section 77(4), the appeal is determined;
(b) where no notice of an appeal against that decision has been given within that period, that period has expired.
Procedure on appeal
79. Subject to this Part, the procedure in respect of any
appeal to the Minister shall be as prescribed by regulations.
Hearing and determination of appeal
80. (1) For the purposes of an appeal under section 77 the
Minister may consider any statement, document, information or other matter
that
may, in the opinion of the Minister, assist in dealing effectually with the
appeal.
(2) In the determination of any appeal under this section,
the Minister may confirm, modify or reverse the decision appealed
against, or
any part of that decision.
PART 11: MISCELLANEOUS PROVISIONS
Prohibition on charging excessive commission, etc.
81. A real estate agent, an officer of a licensee
that is a company, a salesperson or a branch manager, who charges or attempts
to
charge or accepts, by way of commission or other fee, an amount which exceeds
the amount prescribed by regulations in respect
of such commission or fee,
commits an offence.
General provision relating to offences
82. (1) Where a person is convicted of an offence under
section 23, 25, 28, 41, 46, 48 53, 58, 62, 63 or 74, that person shall be
liable:
(a) in the case of a natural person:
(i) to a fine not exceeding $5,000 in respect of a first offence; and
(ii) to a fine not exceeding $10,000 in respect of a second or subsequent offence; and
(b) in the case of a company:
(i) to a fine not exceeding $25,000 in respect of a first offence; and
(ii) to a fine not exceeding $50,000 in respect of a second or subsequent offence.
(2) Where a person is
convicted of an offence under section 15, 36, 38, 54, 56, 57, 59, 61, 64, 67 or
82, that person shall be liable:
(a) in the case of a natural person:
(i) to a fine not exceeding $10,000 in respect of a first offence; and
(ii) to a fine not exceeding $20,000 in respect of a second or subsequent offence; and
(b) in the case of a company:
(i) to a fine not exceeding $50,000 in respect of a first offence; and
(ii) to a fine not exceeding $100,000 in respect of a second or subsequent offence.
(3) Where:
(a) a natural person is convicted of an offence under this Act; and
(b) the court by which the person is convicted is satisfied that the offence was committed with the intent to defraud another person,
the court may, instead of, or in
addition to, any penalty which it may impose under subsection (1) or (2),
sentence the person to
imprisonment for a term not exceeding 3
years.
(4) Where:
(a) a person is convicted of an offence under this Act; and
(b) the court by which the person is convicted is satisfied that the commission of that offence caused another person pecuniary loss,
the court may, on application by that
other person, order the convicted person to pay to that other person such amount
as the court
considers appropriate to compensate that other person for the
pecuniary loss.
(5) Where an offence under this Act committed by a
company is proved to have been committed with the consent of, or the connivance
of, or to be attributable to any default on the part of a director, manager,
secretary or other similar officer of the company, or
any person purporting to
act in any such capacity, he or she, as well as the company shall be guilty of
the offence and shall be
liable to be proceeded against accordingly.
Civil remedies not affected
83. Nothing in this Act shall affect any civil remedy that
any person may have against a real estate agent or salesperson or branch
manager
in respect of any matter.
Service of notices and documents
84. (1) Any notice or other document that under this Act
may be or is required to be given to or served on any applicant for a licence,
certificate of approval, or permit, may be given or served by delivering it to
the applicant personally, or by leaving it or sending
it by post in a registered
letter addressed to the applicant at the applicants residential address or
registered office specified
in the applicants application, or at any address for
service specified in such application.
(2) Any notice or other document
that under this Act may be or is required to be given to or served on a holder
of a licence, certificate
of approval, or permit, may be served by delivering it
to the holder personally, or by leaving it or sending it by post in a registered
letter addressed to the holder:
(a) at the holders usual or last known place of residence in the Fiji Islands; or
(b) in the case of a licensee, at the holders registered office; or
(c) in the case of an officer of a licensee company, at the registered office of the company; or
(d) in the case of a salesperson, at the place of business at which the salesperson is employed; or
(e) in the case of a branch manager, at the branch office.
(3) Any notice or other document that
under this Act may be or is required to be given to or served on the Board shall
be given or
served by delivering it to the Registrar personally, or by leaving
it or sending it by post in a registered letter addressed to the
Registrar or to
the Board at the office of the Board.
(4) Where any notice or other
document is sent by post in the manner prescribed by any of the foregoing
provisions of this section,
it shall be deemed to have been given to or served
on the addressee at the time when the letter would have been delivered in the
ordinary course of the post, and, in proving service of the notice, it shall be
sufficient to prove that it was duly put into the
Post Office as a registered
letter.
Immunity of witnesses, counsel and Board
85. (1) Witnesses and counsel shall have the same
privileges and immunities in relation to complaints heard by the Board under
this
Part as they would have if the complaints were proceedings in a Court of
law.
(2) Neither the Board nor any member of the Board shall be liable in
respect of anything done or omitted to be done at or for the
purpose of the
hearing of any complaint under this Act, unless it is proved to the satisfaction
of the Court before which any proceedings
are taken that the defendant has acted
in bad faith.
Board may award costs
86. After hearing any complaint under this Act the Board
may make such order as to costs as it thinks fit, including:
(a) an order that costs be awarded to the licensee or officer of the company or salesperson or branch manager against whom the complaint was made and that the costs be paid by the Registrar;
(b) order that the licensee or officer of the company or salesperson or branch manager concerned pay to the Registrar such sum as the Board thinks fit in respect of the costs and expenses of and incidental to the to the inquiry or any preliminary investigation conducted by the Registrar.
Recovery of costs and expenses
87. Any sum ordered by the Board to be paid by way
of costs or expenses shall be a debt due by the person ordered to pay it
to the person to whom it is ordered to be paid, and shall be recoverable
accordingly.
Registrar to keep account of moneys received
88. The Registrar shall keep a correct account of all such
sums of money as shall be received by him or her pursuant to the provisions
of
this Act, and shall pay the same into the Consolidated Fund at such times and in
such manner as the Minister of Finance may direct.
Reports of the Board
89. (1) The Board shall, within 6 months after the end of
each financial year forward to the Minister a report on the operations of
the
Board during that financial year.
(2) The report referred to in
subsection (1) shall specify any directions given by the Minister to the Board
during that year.
(3) The Minister shall, as soon as practicable
after receipt of the report, cause copies of it to be laid before both Houses
of
Parliament.
Minister may require returns, etc
.
90. Without
prejudice to the generality of section 90, the Board shall forward to the
Minister such returns, statistics or other information
as the Minister may from
time to time, by notice in writing, require.
Regulations
91. (1) The Minister may from time to time, after
consultation with the Board, make regulations for giving effect to the purposes
of this Act, and, without prejudice to the generality of the foregoing, may make
regulations:
(a) prescribing forms to be used for the purposes of this Act, and the matters to be specified in such forms;
(b) prescribing fee payable under this Act in respect of any application made under this Act, and providing for a refund of the fee or a specified part of it if an application is refused or is withdrawn;
(c) prescribing forms of advertisements and other notices under this Act;
(d) providing for an audit from time to time of the trust accounts of all real estate agents, and the manner in which and the persons or class of persons by whom that audit shall be conducted, and for a report of the result of the audit;
(e) requiring real estate agents to give notice of the appointment of an auditor;
(f) requiring the production to the auditor of books, papers, and accounts, subject to such conditions as may be prescribed;
(g) prescribing the persons to whom the reports of auditors shall be sent for inspection, information, or record;
(h) generally to ensure that all trust accounts shall be duly kept and audited;
(i) prescribing offences in respect of the contravention of or non-compliance with any regulations made under this Act;
(j) prescribing the maximum commission rate and other fees that a real estate agent, officer of licensee that is a company or salesperson or branch manager may charge for his or her services in the business of real estate agent;
(k) prescribing examinations for salesperson;
(l) prescribing the manner in which application may be made for the approval of a branch office; and
(m) prescribing procedures in respect of appeals to the Minister.
(2) Any regulations under this
section prescribing the fee payable on the issue or renewal of a licence shall
prescribe uniform fee
in respect of both, but may prescribe:
(a) additional fee in respect of every branch office of the licensee; or
(b) a reduced fee in respect of licences issued after a specified date.
Savings and transitional
92. (1) Where, on the coming into operation of this Act, a
person is carrying on the business of a real estate agent, that person
may, in
accordance with provisions of this Act, apply to the Board for a
licence.
(2) On receipt of an application from a person referred to
in subsection (1), the Registrar shall, upon payment of the prescribed
fee (if
any), issue to the person a provisional licence which shall be deemed to be
effective from the date of the coming into operation
of this Act until the
application is finally determined by the Board.
(3) If at the
expiration of the period allowed for objections to the issue of a licence to the
applicant under section 18, the
Board has received no notice of objection, and
the Board is satisfied:
(a) that the applicant is, under the provisions of section 16, eligible to hold and is not disqualified from holding a licence; and
(b) that, having regard to the applicants character, financial position, the interests of the public, and where appropriate, the matters specified in section 22, the applicant is a fit and proper person to carry on the business of a real estate agent,
the Board shall grant a licence
to the applicant upon payment of the prescribed fee without further
consideration of the application.
(4) If the Board does receive notice of
objection within the time allowed under section 18, the application shall be
heard and determined
in accordance with the provisions of this Act.
(5)
When considering any application under subsection (1) or subsection (7), the
Board may dispense with the 3 year requirement mentioned
in section 16(2)(c) and
section 50.
(6) At the commencement of this Act, a person who is employed
or engaged as a salesperson or a branch manager continues as if the
person were
given a certificate of approval under this Act, subject to subsection
(7).
(7) A person authorised under subsection (6) shall apply to the
Board for an approval within 6 months from the commencement of this
Act,
otherwise the authorization given by virtue of subsection (6) shall cease to
have effect.
(8) If an application for a real estates agents licence or
for an approval for a salesperson or branch manager is made and no examination
has been prescribed under this Act, the Board may instead take into account any
relevant academic qualifications or the experience
of the applicant in real
estate as the necessary requirement for the examination.
Passed by the
House of Representatives this 8th day of August 2006.
Passed by the
Senate this 31st day of August 2006.
-------------------------------------------