New Zealand Legislation: Bills
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185—1
This Bill replaces the Real Estate Agents Act 1976 and introduces a new regulatory framework for the real estate industry that will promote and protect the interests of consumers in real estate transactions by raising industry standards, improving licensing requirements and licensing procedures, providing mandatory disclosure obligations, and providing accountability through an independent, transparent, and effective disciplinary process.
The Real Estate Agents Act 1976 is over 30 years old and lacks many of the modern consumer protection features associated with more recent legislation. It provides for a system of industry self-regulation that lacks independence, transparency, and accountability. This, combined with the significant risk posed to consumers from real estate activity such as mishandling of funds, poor contractual advice, misleading representations, conflicts of interest, and misuse of information, make it essential to provide a regulatory framework that affords consumers an adequate level of protection.
The new regulatory framework will ensure that real estate agency services are offered only by suitably licensed persons, having regard, in particular, to the need to protect consumers and that licensees meet strict eligibility criteria (including meeting fit and proper person requirements and passing the appropriate examinations) and are subject to clearly specified and strict rules of conduct in their business dealings. The framework provides a modern, independent, and robust complaints and disciplinary regime that will offer consumers a transparent, low-cost option for seeking remedies if things go wrong.
The Bill—
establishes a new regulatory body, the Real Estate Agents Authority, to oversee modern licensing, complaints, disciplinary and enforcement processes, set industry standards, and provide information to consumers:
creates a Disciplinary Tribunal administered by the Ministry of Justice that will deal with more serious complaints:
sets out licensing processes and makes provision for a public register:
sets more modern offence provisions with a wider range of penalties and remedies, including the ability for consumers to seek compensation in cases of demonstrated financial loss:
increases industry entry requirements, including a requirement for ongoing training:
makes changes to the conduct required in the day-to-day running of a real estate agency business, including mandatory disclosure requirements (including possible conflicts of interest), requirements to provide information to consumers in specific situations, and new auction requirements:
abolishes the Real Estate Agents Licensing Board:
removes the requirement for compulsory membership by real estate agents of the Real Estate Institute of New Zealand.
Clause 1 is the Title clause.
Clause 2 is the commencement clause. The Bill comes into force on the day after the date on which it receives the Royal assent.
Clause 3 states the purpose of the Bill. The main purpose of the Bill is to promote and protect the interests of consumers in respect of transactions relating to real estate.
Clause 4 relates to interpretation and defines certain terms used in the Bill.
Clause 5 provides that this Act binds the Crown.
Clause 6 provides that, in order to engage in real estate agency work, a person must be either licensed under the Bill and act within the scope of that licence or be exempt from the requirement to be licensed.
Clauses 7 to 13 provide for exemptions from the general requirement that a person must be licensed to carry out real estate agency work. Exemptions are provided for lawyers and conveyancers, licensed auctioneers, Landcorp Farming Limited and its employees, and persons exempted by the Real Estate Agents Authority. A person or class of persons may also be exempted by regulations made by the Governor-General by Order in Council on the recommendation of the Minister. Before making a recommendation the Minister must be satisfied that there is little consumer benefit to be gained by requiring those persons to be licensed and that there are sufficient safeguards to ensure competent and ethical conduct on the part of those persons. The Minister must also consult with relevant organisations that, in the opinion of the Minister, have an interest in the proposed exemption.
Clause 14 establishes the Real Estate Agents Authority (the Authority).
Clause 15 provides that the Authority is a Crown entity for the purposes of section 7 of the Crown Entities Act 2004. Accordingly the provisions of that Act apply except to the extent that the Bill provides otherwise.
Clause 16 sets out the Authority’s functions. These include administering the licensing regime, establishing, keeping, and maintaining a register of persons licensed to carry out real estate agency work, developing practice rules, setting professional standards, and receiving complaints.
Clause 17 provides that the membership of the Authority consists of no more than 7 members. As a consequence of being a Crown entity, the members are appointed by the Minister. The members of the Authority are the members of the board, which is the governing authority. The Minister must appoint a member who is a barrister and solicitor to be the chairperson of the board.
Clauses 18 to 23 contain provisions relating to practice rules. Clause 18 empowers the Authority to make practice rules. These rules must include or provide for a code of professional conduct and client care (clause 18(2)). Practice rules may also be made relating to continuing education requirements (clause 19). The Authority is required to consult with the industry when considering making practice rules (clause 20). The Minister must also approve the rules. When deciding whether to approve the rules, the Minister must have regard, among other things, to certain specified matters (clause 21). The Minister may, after consultation with the Authority and any other persons or groups the Minister thinks fit, amend any practice rules if he or she considers the rules to be deficient (clause 22). Practice rules must be notified in the Gazette and the notice is a regulation for the purposes of the Regulations (Disallowance) Act 1989 (clause 23).
Clauses 24 to 28 relate to the prescribing of fees and operational and disciplinary levies on those licensed under the Bill to engage in real estate agency work. Notices of fees and levies are regulations for the purposes of the Regulations (Disallowance) Act 1989 (clause 27(2)).
Clause 29 gives the Authority the power to take possession of a real estate agent’s financial records and documents in certain circumstances. These include theft on the part of an agent or an employee or contractor of the agent, improper conduct on the part of the agent, inability to administer the trust account, bankruptcy, cancellation or suspension of the agent’s licence, and failing to wind up the trust account after ceasing to carry on business.
Clause 30 enables the Authority to inspect any records relating to trust moneys believed to have been stolen.
Clause 31 requires the Authority to give notice to the real estate agent of the particulars of any document it takes into its possession.
Clause 32 sets out the functions of the Registrar. The Registrar’s main functions are to establish, keep, and maintain the register and to decide on the licensing or continued licensing of those operating in the real estate industry.
Clause 33 sets out the Registrar’s powers of delegation.
Clause 34 sets out who is entitled to be licensed as a real estate agent, branch manager, or salesperson under the Bill.
Clause 35 lists the persons who are prohibited from being licensed.
Clauses 36 to 41 sets out the procedure for applying for a licence. An application for a licence must be made to the Registrar (clause 36). The application must also be advertised (clause 37). Any person may object to the issuing of a licence to an applicant on the grounds set out in clause 38. If an objection is made, the applicant may make a written submission in response (clause 39). In the event that the application for a licence is objected to, the Registrar must hold a hearing (clause 40). A licence must be granted if, after hearing any objection, the Registrar is satisfied that the person is entitled to be licensed under the Bill (clause 41). The Registrar, on granting the licence, must issue 1 of the following types of licences to the applicant:
an agent licence:
a branch manager licence:
a salesperson licence.
Clause 42 contains special provisions in respect of partnerships and companies.
Clause 43 imposes a duty on every licensee to produce evidence of his or her licence if requested to do so.
Clause 44 provides that, unless cancelled, suspended, or surrendered, the term of a licence is for 1 year and is renewable.
Clause 45 provides that a licence may not be transferred to, or vest by operation of law in, another person.
Clause 46 provides that a licence as an agent authorises the licensee to carry out real estate agency work.
Clause 47 provides that a licence as a branch manager or salesperson authorises the licensee to carry out real estate agency work for or on behalf of an agent.
Clause 48 requires a salesperson when carrying out agency work to be properly supervised and managed by either an agent or a branch manager.
Clause 49 provides that a salesperson may be employed by an agent as an employee or an independent contractor, and any written agreement is conclusive in so far as it expressly states that the relationship between the agent and the salesperson is one of employer and independent contractor.
Clause 50 is a review clause. The chief executive of the Ministry of Justice must, no later than 5 years after the commencement of the Bill, report to the Minister as to whether the employment status of salespersons should be determined by the Employment Relations Act 2000.
Clause 51 provides for renewal of licences.
Clause 52 provides that, if an application for renewal of a licence has not been made by the expiry date of the licence, the Registrar must record on the register that the licence has expired.
Clauses 53 to 55 provide for the circumstances in which a Registrar must cancel a person’s licence and remove that person’s name from the register and the cancellation process (other than cancellation of a licence by the Disciplinary Tribunal).
Clauses 56 to 59 provide for the mandatory and voluntary suspension of a licence.
Clause 60 provides for the voluntary surrender of a licence.
Clause 61 provides for the issuing of temporary licences.
Clause 62 provides that the Registrar must establish, keep, and maintain a register of licensees.
Clause 63 sets out the purposes of the register. One of its purposes is to enable the public to determine whether a person is licensed and the status and history of that person’s licence. The register also functions to facilitate the administrative, disciplinary, and other functions of the Authority, Registrar, and Disciplinary Tribunal.
Clause 64 provides that the register may be kept electronically and must be operated at all times unless suspended by the Registrar.
Clause 65 sets out the matters to be contained in the register.
Clause 66 imposes an obligation on licence applicants and licensees to advise the Registrar of any relevant change in circumstances.
Clause 67 enables the Registrar to make amendments to the register.
Clause 68 provides that a person may search the register and requires the Registrar to make the register available for public inspection. The Registrar must supply copies of all or part of the register on request if the provision of those copies is consistent with the register’s purposes.
Clause 69 sets out the circumstances in which a search of the register constitutes an interference with the privacy of an individual.
Clause 70 extends the meaning of licensee for the purposes of this Part. The term covers former licensees as well as current and former officers of companies that are or have been licensees.
Clause 71 defines the meaning of unsatisfactory conduct. This is constituted by agency work that is—
below the standard that a reasonable member of the public can expect from a reasonably competent licensee:
incompetent or negligent:
reasonably regarded as unacceptable by real estate agents of good standing.
Clause 72 defines the meaning of misconduct. This is constituted by conduct that is—
disgraceful in the reasonable view of licensees of good standing or reasonable members of the public:
seriously incompetent or seriously negligent real estate agency work:
a wilful or reckless contravention of applicable enactments or rules made under the Act:
an offence for which a licensee has been convicted and that reflects adversely on the licensee’s fitness.
Clause 73 provides that any person may complain to the Authority about licensees. Complaints must be in writing and must comply with applicable regulations. The Authority must refer complaints received to the Complaints Assessment Committee (the Committee).
Clause 74 provides that the Committee consists of 3 members of the board.
Clause 75 sets out the functions of the Committee. These include inquiring into complaints, making final determinations in relation to complaints, and laying and prosecuting charges before the Disciplinary Tribunal.
Clause 76 requires the Committee to consider the complaint and to determine whether to proceed with it.
Clause 77 authorises the Committee to take no action on any complaint if an investigation of the complaint is no longer practicable or desirable because of the time that has elapsed. The Committee may also decline to take action because of the triviality of the complaint.
Clause 78 requires the Committee to notify the complainant and the person complained about of its decision to take no action.
Clause 79 requires the Committee to commence its inquiries as soon as practicable and authorises it to have assistants.
Clause 80 requires the Committee, when investigating a complaint, to notify the person complained about. That person must be given an opportunity to make a written explanation and may be required to appear before the Committee and to provide specified information in writing.
Clause 81 relates to the Committee’s procedure. The Committee is bound by the rules of natural justice and the provisions of the Act and any regulations, but may otherwise regulate its procedure.
Clause 82 empowers the Committee to obtain information. Before the Committee requires a person to supply information, it must have previously requested the person to provide it voluntarily.
Clause 83 requires the person who has received a notice under clause 82 to produce papers, documents, records, or things to the Committee unless the information or document is privileged or disclosure would result in the breach of an obligation of secrecy or non-disclosure imposed by an enactment.
Clause 84 enables the Committee to see if the complaint can be disposed of by negotiation, conciliation, or mediation. If the parties reach an agreed settlement, the Committee may give effect to it by making a consent order.
Clause 85 relates to evidence. In general terms, the Committee may receive evidence that would otherwise be inadmissible.
Clause 86 deals with the 3 broad types of determinations that the Committee may make. First, in serious cases, it may determine that the complaint be considered by the Disciplinary Tribunal (the Tribunal). Secondly, it may determine that there has been unsatisfactory conduct, in which case it may deal with the matter itself. Finally, it may determine to take no further action.
Clause 87 sets out the default position for Committee hearings, which is that the Committee considers complaints and the related evidence on the papers. Oral hearings are held only if the Committee gives a direction to that effect.
Clause 88 deals with references of complaints to the Tribunal. The Committee refers a matter to the Tribunal by laying a charge with the Tribunal against the licensee complained about.
Clause 89 authorises the Committee, when laying a charge with the Tribunal, to apply for an order suspending the licence of the person who has been charged.
Clause 90 deals with cases where the Committee finds the person complained about guilty of unsatisfactory conduct. The Committee may then make a number of orders against the person, including censuring the person, requiring the person to apologise, requiring the person to undergo training, requiring the person to rectify an error, and requiring the person to pay a fine of up to $10,000 in the case of an individual or $20,000 in the case of a company.
Clause 91 requires the Committee to notify the complainant and the person complained about of its determination.
Clause 92 protects the members of the Committee and any assistants from civil or criminal liability in respect of anything done or omitted to be done in the course of their work.
Clauses 93 and 94 give witnesses providing information to the Committee and counsel appearing before the Committee the same privileges and immunities as witnesses and counsel have in a court.
Clause 95 provides for the enforcement of the Committee’s orders.
Clause 96 provides that if any sum ordered to be paid by the Committee or the Tribunal remains unpaid for 60 days or longer, the Committee may suspend the person’s licence until the person pays the money and, if he or she does not do so within 12 months, cancel his or her licence.
Clause 97 establishes the Tribunal. It consists of a legally qualified chairperson and up to 4 other members. The members of the Tribunal are appointed by the Minister.
Clause 98 provides that, for any hearing, the Tribunal is made up of the chairperson and 2 other members.
Clause 99 sets out the functions of the Tribunal. These consist of hearing and determining any application made by the Committee for the suspension of the licence of a licensee pending the determination of a charge, hearing and determining charges against licensees, hearing any appeal against the Committee, and reviewing decisions of the Registrar.
Clause 100 requires the Ministry of Justice to provide secretarial services to the Tribunal.
Clause 101 applies the provisions set out in the Schedule to the Tribunal and its proceedings. These include the power to summon witnesses, the protection of witnesses from liability, and the Tribunal’s power to take evidence on oath.
Clause 102 allows the Tribunal to regulate its procedure. This is subject to the rules of natural justice and to this Act and any regulations.
Clause 103 allows every person whose rights may be affected by a proceeding against a licensee to appear and be heard at the hearing and to be represented. Charges against licensees are prosecuted by the Committee. The Committee may be represented.
Clause 104 sets out the general rule that the Tribunal’s proceedings are open to the public. However, this does not apply to reviews of decisions of the Registrar, which are heard on the papers. The Tribunal may hold a hearing or part of a hearing in private if it is proper to do so, for example, to protect the privacy of the complainant.
Clause 105 enables the Tribunal to make non-publication orders in respect of particular proceedings.
Clause 106 enables the Tribunal to receive evidence that would otherwise be inadmissible.
Clause 107 provides that the Tribunal determines the question of whether a person charged has been guilty of misconduct on the balance of probabilities. It sets out the kinds of order the Tribunal may make against someone found guilty of misconduct. These orders include:
cancelling or suspending the licence of the licensee:
stopping the licensee from performing any supervisory functions:
terminating any current employment or engagement of the licensee and ordering that no real estate agent employ or engage him or her in connection with real estate agency work:
fining an individual up to $15,000 and fining a company up to $30,000:
ordering the licensee to pay compensation for any loss suffered because of an act or omission of the licensee (maximum amounts of compensation will be prescribed by regulations).
Clause 108 provides for appeals to the Tribunal against determinations of the Committee.
Clause 109 enables the Tribunal to review determinations by the Registrar. The review is conducted on the papers unless the applicant requests to be heard.
Clause 110 requires the Tribunal to notify the parties and the Authority of its decisions and of the right to appeal to the High Court.
Clause 111 provides for the enforcement of the Tribunal’s orders through the District Court.
Clause 112 provides for interim suspension of licences pending the outcome of the hearing of a charge against a licensee. The licensee must be given an opportunity to make submissions on whether his or her licence should be suspended. The Tribunal takes any submissions into account in making its decision. The licensee may appeal to the High Court against a decision to suspend.
Clause 113 gives any person adversely affected by a decision of the Tribunal the right to appeal to the High Court against the decision.
Clause 114 gives the High Court jurisdiction to may make interim orders. The court may allow the appellant to carry out real estate agency work pending the determination of the appeal.
Clause 115 requires the registry of the court in which an interim order is made to send a copy of the order to the Registrar as soon as practicable so that the appropriate entries can be recorded.
Clause 116 provides that the High Court’s decision in the determination of an appeal is final, except for a right of appeal to the Court of Appeal on a question of law.
Clause 117 confers a right of appeal to the Court of Appeal on questions of law.
Clause 118 requires a real estate agent, who receives any money in respect of any transaction in his or her capacity as an agent, to pay it to the person lawfully entitled to that money or in accordance with that person’s directions. Until so paid, the money must be paid into a trust account.
Clause 119 requires a real estate agent to hold any money in the agent’s trust account for a period of 10 working days after the date on which he or she received it.
Clause 120 sets out the duties of a real estate agent to account for trust moneys they receive.
Clause 121 requires trust accounts of agents to be audited in accordance with regulations made under the Act.
Clause 122 enables the Authority to appoint a suitable administrator to administer an agent’s trust account in a number of specified cases. These include the agent’s incapacity, contraventions of the Act, or recklessness in the way the agent administers the trust account.
Clause 123 enables the Authority, if it reasonably suspects that trust moneys are at risk, to appoint an interim administrator pending a decision on whether to appoint a permanent administrator.
Clause 124 generally disentitles an agent from receiving commissions or expenses unless the agency work concerned is performed under a written agency agreement signed by the client and the agent that complies with any regulations, and is given to the client within 48 hours after it is signed. However, a court may excuse the failure by the agent to give a copy of the agency agreement to the client within 48 hours and order that the commission or expenses are wholly or partly recoverable. But the court may make such an order only if satisfied that the failure was inadvertent or beyond the control of the agent, and that the commission or expenses are fair and reasonable, and that not making the order would be unjust.
Clause 125 prohibits an agent from entering into an agency agreement for residential property unless the agent has provided the prospective client with a copy of a guide approved by the Authority.
Clause 126 disentitles an agent from receiving rebates, discounts, and commissions unless the agency agreement contains a statement that identifies the source, and estimates, so far as possible, all rebates, discounts, or commissions that the agent will or may obtain. The estimated amount of those rebates, discounts, or commissions must be specified.
Clause 127 authorises the making of regulations governing agency agreements.
Clause 128 allows a client to cancel a sole agency agreement by 5 pm on the first working day after the client is given a copy of the agreement.
Clause 129 allows both the client and the agent to cancel a sole agency agreement at any time 90 days after the agreement is signed.
Clause 130 requires a licensee who receives a signed contractual document from a person to give the person an accurate copy of the document.
Clause 131 requires a licensee to give a person a guide on the sale of residential property approved by the Authority before the licensee gives the person a copy of an offer or an agreement in respect of any residential property.
Clause 132 prohibits a licensee from acquiring the land or the business to which the transaction relates unless the licensee has the consent of the client. Nor may a licensee permit a related person to acquire the land or business. The client’s consent must be in the prescribed form and the client must be provided with a valuation in accordance with clause 133. If clause 133 is contravened, the client may cancel the contract. No commission is payable in respect of any contravening contract.
Clause 133 deals with the valuations that must be provided to a client for the purposes of obtaining the client’s consent to a transaction in which the licensee or related person seeks to acquire the land or the business to which the transaction relates.
Clause 134 requires licensees performing real estate agency work in respect of a transaction to disclose in writing to every prospective party to the transaction any financial benefits that the licensee may gain from the transaction.
Clause 135 relates to clauses 132 to 134. It sets out a special meaning for the term licensee and defines the cases in which a person is related to a licensee. It also provides that a person is related to a licensee if the person is a partner of the licensee under a partnership agreement, an employee of the licensee, a salesperson or branch manager engaged by the licensee, a spouse, civil union partner, or de facto partner of the licensee, a specified relative of the licensee, or an entity that has an interest in the licensee (if it is a company) or an entity in which the licensee has an interest (other than ones listed on the New Zealand Stock Exchange).
Clause 136 provides that clauses 137 to 141 apply to any auction for the sale of land, whether conducted by a licensee or a registered auctioneer.
Clause 137 requires a list to be drawn up of the persons who are allowed to bid at the auction. The list is called the Bidders Record. The person who conducts the auction must keep the Bidders Record for at least 3 years.
Clause 138 forbids the entry of a prospective bidder in the Bidders Record unless that person’s details are established by specified forms of personal identification.
Clause 139 safeguards the privacy of the persons whose names appear in the Bidders Record.
Clause 140 prevents a bid being taken at an auction unless the bidder appears in the Bidders Record and identifies himself or herself by displaying an identifying number.
Clause 141 requires the auctioneer to give all bidders sufficient information to enable each bidder to identify any vendor’s bid or to identify every vendor’s bid as soon as it is made.
Clause 142 creates a general offence of knowingly contravening any provisions of the Bill or any regulations made under the Bill.
Clause 143 provides a general penalty for offences under the Bill. The general penalty is—
in the case of an individual, a fine not exceeding $40,000:
in the case of a company or body corporate, a fine not exceeding $100,000.
Clause 144 provides for a forfeiture penalty, in addition to a fine, for certain offences.
Clause 145 provides that offences are punishable on summary conviction.
Clauses 146 to 148 create the following offences relating to the requirement to be licensed:
offence to carry on business of an agent, branch manager, or salesperson unless licensed or exempt:
offence of holding out any person as an agent, branch manager, or salesperson unless licensed or exempt:
offence of employing or contracting unlicensed or non-exempt person as an agent, branch manager, or salesperson.
Clauses 149 and 150 create offences relating to an application for a licence or renewal of a licence. It is an offence to provide false or misleading information or to fail to notify a change of circumstances to the Registrar without reasonable excuse.
Clauses 151 and 152 create the offences of failing to disclose a conflict of interest and rendering false accounts.
Clause 153 creates a number of offences relating to obstruction of an investigation.
Clause 154 sets out requirements relating to service of notices and documents.
Clause 155 is the regulation-making power.
Clause 156 repeals the Real Estate Agents Act 1976.
Clause 157 transfers the assets and liabilities of the Real Estate Agents Licensing Board to the Real Estate Institute of New Zealand Incorporated.
Clause 158 continues certain provisions of the repealed Real Estate Agents Act 1976 for the purpose of winding up the Real Estate Agents Fidelity Guarantee Fund (the Fund).
Clause 159 stops claims against the Fund in respect of events that take place after the commencement of the Act. A deadline is set for making claims in respect of prior events. This is the period of 12 months beginning with the date on which a report under clause 161(1) is submitted.
Clause 160 requires the Council of the Real Estate Institute of New Zealand to give public notice of the last date for submitting any claim against the Fund.
Clause 161 provides for the winding up of the Fund. If the Council of the Real Estate Institute of New Zealand considers that all claims against the Fund have been fully dealt with, it must submit a report to the Minister. If, in the next period of 12 months, further claims against the Fund are submitted, the Council must deal with those claims. After the end of that further period of 12 months, the Council must decline to receive any further claims against the Real Estate Agents Fidelity Guarantee Fund. If no further claims are received or all claims are fully dealt with, the Council must report the facts to the Minister and submit to the Minister its final report and final audited accounts for the Fund. An Order in Council may then be made winding up the Fund.
Clause 162 provides that when the Order in Council is made under clause 161(7), any assets of the Fund are held beneficially by the the Real Estate Institute of New Zealand Incorporated.
Clause 163 provides that, for the purposes of the transitional provisions of the Bill, the Real Estate Agents Licensing Board, the Registrar of Real Estate Agents, and every Regional Disciplinary Committee continue in office.
Clause 164 deems every holder of a current agent’s licence under the Real Estate Agents Act 1976 (the old Act) to be an agent under the Act that will result from the passage of this Bill (the new Act).
Clause 165 deems every person who holds a current certificate of approval as a salesperson or as a branch manager under the old Act to be a salesperson or branch manager under the new Act.
Such salespersons retain, if they continue to be employed or engaged by the same agent, the status that they had before the commencement of the new Act, whether as employee or as independent contractor, until that status is altered by agreement of the parties.
Clause 166 provides for the continuation of permits issued under the old Act.
Clause 167 provides that applications for licences or certificates under the old Act that have not been dealt with by the commencement of the new Act must be dealt with under the old Act.
Clause 168 provides that disciplinary proceedings and inquiries under the old Act that have not been completed before the commencement of the new Act are to be continued and completed as if the old Act had not been repealed.
Clause 169 authorises the Complaints Assessment Committee and the Disciplinary Tribunal to proceed against licensees or former licensees in respect of conduct engaged in before the commencement of the new Act. This is subject to the Committee or the Tribunal being satisfied that the licensee or former licensee could have been complained about or charged under the old Act. Any penalty imposed must be one that could have been imposed when the conduct occurred.
Clause 170 provides for amendments to other acts as set out in Schedule 2.
Schedule 1 contains the administrative provisions relating to the Disciplinary Tribunal.
Schedule 2 makes consequential amendments to other Acts.
A range of problems currently exist with the disciplinary system for real estate agents under the Real Estate Agents Act 1976. Concern has been raised by the public and by real estate agents themselves about how effectively the industry deals with complaints and disciplinary matters.
The risks associated with real estate activity include: mishandling of funds, poor contractual advice, misleading representations, conflicts of interest, abuse of rights of access to property, and misuse of information. Given the significant risk to consumers that real estate agents and their salespeople present, it is considered essential that the regulatory framework governing the conduct and work of real estate agents affords the consumer an adequate level of protection.
The Real Estate Institute of New Zealand (REINZ) and the Real Estate Agents Licensing Board (the Licensing Board) are responsible for the industry disciplinary processes. Some recent high profile cases have highlighted significant shortcomings with these processes, such as a lack of independence, transparency, and accountability. Concern has also been expressed about a lack of redress for consumers where things have gone wrong, excessive time delays in processing complaints, and about low penalties imposed in proportion to the commission received. There has also been criticism that the 30-year-old Real Estate Agents Act 1976 is no longer fit for its purpose in that it lacks many of the features of modern consumer protection frameworks for other occupations, such as lawyers and conveyancers, motor vehicle traders, and builders.
To address these concerns, the Government agreed to a full review of the Real Estate Agents Act 1976. Following the review, in July 2007, Cabinet agreed to the release of a public consultation paper to outline the Government’s preferred option for reform of the Real Estate Agents Act 1976.
The proposed reforms will allow consumers access to an independent, transparent, and robust complaints and disciplinary system that will have the powers necessary to impose effective penalties and remedies. The proposed reforms are wide-ranging and are designed to significantly increase consumer confidence in the real estate industry, thereby ensuring the healthy growth of the industry.
The main reform proposals are—
the establishment of a new regulatory body, the Real Estate Agents Authority, to oversee modern licensing, complaints, disciplinary and enforcement processes, set industry standards, and approve the educational criteria for real estate agents and salespeople:
the creation of a Disciplinary Tribunal within the Ministry of Justice that will deal with more serious cases:
more modern offence provisions with a wider range of penalties and remedies:
increased industry entry requirements, including a requirement for ongoing training:
changes to the conduct required in the day-to-day running of a real estate agency business, including mandatory disclosure requirements and requirements to provide information to consumers in specific situations.
The costs of administering the Authority will be met from licensing fees and, where necessary, levies.
The Ministry of Justice has reviewed this regulatory impact statement and considers the regulatory impact statement to be adequate according to the adequacy criteria.
There are approximately 1 500 real estate agents in New Zealand and over 20 000 real estate salespeople. The average selling price of the 102 000 homes that were sold through real estate agents in New Zealand in 2006 was $310,400. The REINZ has estimated that approximately $1.5 billion passes through real estate agents’ trust accounts each year relating to deposits.
Recently cases have come to light where misconduct by real estate agents or their salespeople has resulted in a financial detriment to the consumer of tens of thousands of dollars. The risks that consumers are exposed to are significant and there is the possibility of considerable consumer detriment in terms of direct monetary loss and of costs associated with the time required to pursue remedies when things go wrong.
The Real Estate Agents Act 1976 established a licensing regime that includes a complaints and disciplinary system covering agents and salespeople. The Act does not provide any consumer redress options, and consumers must seek remedies either directly from agents or through the courts.
Responsibility for industry regulation is shared between the REINZ and the Licensing Board. All licensed real estate agents must belong to the REINZ and both organisations are strongly affiliated to the real estate agent industry. The Licensing Board has responsibility for granting and renewing licenses and certificates of approval and hearing disciplinary matters that are referred to it by the REINZ. The REINZ makes a range of rules relating to the industry, including qualifications needed to become a real estate agent or salesperson and sets the ethical standards that REINZ members must comply with.
The REINZ is also responsible for deciding whether or not disciplinary action is taken against an agent or salesperson. It acts as a gate-keeper by deciding whether complaints are serious enough to be referred to the Licensing Board, which has the power to suspend or cancel licences. The vast majority of consumer complaints are dealt with at REINZ subcommittee level, which means that decisions about disciplinary action are taken by fellow real estate agents. The maximum fine that can be imposed by the REINZ subcommittee is $750. There is no consumer representation in the disciplinary process.
A review of the Real Estate Agents Act 1976 identified further problems with the current industry regulatory regime. There is concern over the high threshold required for suspension and removal of real estate agents and their salespeople and about the quality of the investigations undertaken. Where investigations do find that a real estate agent’s conduct has not been up to the level required, there is concern about the lack of proportionality between the potential high financial rewards for misconduct and the low level of penalties that can be imposed.
There is also concern about a lack of transparency, with no reporting requirements for either the REINZ or the Licensing Board, no statutory requirement to publish or report complaint decisions, a lack of accessibility for consumers to the complaints system with limited public information available, and no consumer representation in the disciplinary process.
The current regime is a self-regulatory model undertaken within a legislative framework and consequently there is a low level of independence from the industry. There is significant public and industry concern about whether the current licensing, complaints, and disciplinary processes are as effective as they could be in upholding industry standards.
Allowing this situation to continue runs the risk of leaving consumers exposed to an unacceptable level of risk and consequent potential financial detriment. It is also likely that failing to address this issue would fatally undermine the consumer confidence required for the healthy growth of the real estate industry.
The policy objectives are—
quality assurance: real estate services offered for reward must be offered only by suitably licensed persons, having regard, in particular, to the need to protect consumers. Those licensed must meet strict eligibility criteria (including meeting good character requirements and passing the appropriate examinations). They must also be subject to clearly specified and strict rules of conduct in their business dealings:
discipline and redress: those licensed must be subject to an effective disciplinary process if they breach those clearly specified and strict rules of conduct. Where a breach occurs, consumers must be provided with effective avenues of redress:
fairness, timeliness, transparency, and independence: the licensing process, the rule-setting process, and the procedures for enforcement, discipline, and redress must at every level be fair, timely, transparent, and independent of industry control.
Meeting these objectives will help restore consumer confidence and allow the healthy growth of the real estate industry.
A range of possible options for reform, both non-legislative and legislative, were considered. The options were evaluated against 5 principles which are consistent with the Benchmarks for Industry-Based Customer Dispute Resolution. These are—
the scheme should be independent, transparent, and accountable:
the scheme should maximise confidence in the industry:
the scheme should not reduce competition and innovation in the industry:
the scheme is suitable for the industry in New Zealand:
costs.
This option allows the real estate industry to retain responsibility for how the industry operates. It has cost advantages in that it would avoid legislative changes and the set up and administrative costs of an independent body to oversee the industry. In 2006, the REINZ were asked to make proposals to the Government that would improve accountability and transparency within the industry. REINZ made proposals for improving the current disciplinary and investigation processes through a new code of practice for complaint procedures, updating the industry code of ethics and code of practice, and establishing a new team of trained professional investigators. However, their proposals failed to provide for a complaints and disciplinary regime with the necessary level of independence from the industry.
Enhancing self-regulation will not address the problems identified within the real estate industry. Unscrupulous agents are likely to remain outside the regime offering the consumer no real additional protection while those within the regime would continue to have insufficient incentives to comply with voluntary codes of practice. The complaints system would also continue to lack consumer representation and remain difficult to access. Without the imposition of mandatory standards and an independent, open, and transparent complaints and disciplinary process there is little likelihood that consumer confidence in the industry will be restored. For these reasons enhanced self-regulation is not thought to offer a suitable solution to the problems identified within the real estate industry.
A number of options with a legislative design that addresses the need for a combination of a disciplinary system and consumer redress were examined. All the legislative options examined are intended to be industry funded and would be free to the user.
This option would require legislation to modify the Real Estate Agents Act 1976. The changes would allow the Licensing Board and REINZ committees to order compensation to be paid to consumers for the misconduct of real estate agents or their salespeople. It would also provide for new and increased penalties and would require an annual report of the activities of REINZ and the Licensing Board to be made public.
This option has the advantage of building off the existing organisations and relationships and would be industry funded. However, it is unlikely that a modified scheme could fully reflect modern standards for complaints and dispute resolution services. It would also fail to provide the independence from the industry that is required to restore consumer confidence.
This option would require legislation to establish a three-stage model for consumer complaints, similar to the one used for lawyers and conveyancers. The first stage would require REINZ to set up a complaints service to receive complaints and to provide public information about the service. The second stage would be the setting up of an independent Standards Committee to hear consumer complaints, and the third stage would be to establish the post of a Complaints Review Officer to review decisions made by the Standards Committee. A range of remedies would be available and there would be a Disciplinary Tribunal, with the ability to impose a range of penalties including fines, suspensions, and cancellation of licences where appropriate.
There is credibility in using a system that has previously been judged as suitable for New Zealand; however, it is not certain that this type of system would be sufficiently independent from the industry to restore consumer confidence in the wake of recent well-publicised consumer difficulties within the industry.
This option would involve an ombudsman-style model which would provide an independent body to investigate consumer complaints. It would have the ability to make binding decisions on redress for consumers. An independent body would be established with responsibility for handling disciplinary matters, with a range of disciplinary powers, including the ability to order fines, remedial training, and suspensions and cancellations of licences.
This option would provide the necessary level of independence from the industry, however, there would be difficulties in binding industry members to the scheme through a contractual-based system, as it would be restricted to REINZ members, which covers all real estate agents but not all salespeople whose membership is voluntary. There would also be potential conflict with the disciplinary code in the Real Estate Agents Act 1976 without further major modification of the Act.
Under this type of licensing system certain people or groups of people are given the right to perform certain tasks. It offers a more flexible system than occupational regulation as the restrictions usually relate to a specific part of the job. This system is generally used where consumers face heavy costs when a task is performed badly, or where government wants to control who carries out certain functions for the State.
However, the risks that exist in the real estate industry relate to the behaviours exhibited over a range of tasks and situations, including drafting contracts, holding funds, and negotiating sales. There is also a danger with this type of regulation that the tasks become outdated. For these reasons it is not thought that the real estate industry is suitable for this type of regulation.
Certification is where an industry body certifies to the public that particular people have met requirements that indicate their ability to do the job effectively. A person who is certified has the exclusive right to use a certain title that indicates their standing within the industry. Uncertified people can offer services in competition with those that are certified, but are not permitted to use the certified title.
Certification would allow an informed choice, between using the services of those certified and those not, to be made by the consumer. It would also allow for increased competition and a reduction in costs to the consumer as those uncertified are likely to charge less for their services. In most cases the industry body offering certification will insist on those it certifies adhering to a code of conduct.
However, in the context of the real estate industry, where both the vendor and purchaser face risk, the purchaser has no choice other than to deal with the vendors selected agent. Also under this system it leaves those uncertified outside of any code of conduct or other form of industry body control. It would also not allow for independent scrutiny of agents’ trust accounts. For these reasons, certification is not thought to be appropriate for the real estate industry.
Disclosure is a regime that requires a person to disclose certain information to potential clients. It is usually used in sectors where there is a risk to people’s money such as the financial industry. It has the advantage of providing consumers wishing to use the service with information about the processes involved and about the person they are considering dealing with, which allows them to make an informed choice about the level of risk.
In the context of the real estate industry, this type of regulation is not sufficient to address the risk to purchasers from agents that have been chosen by the vendor. Nor does it address risk associated with the drawing up of binding contracts, with potential conflicts of interest, or the holding of purchase deposits.
Negative licensing is a system in which a person does not need a licence to provide a service but may be stopped from doing so in certain situations or if certain behaviours are exhibited. People can be stopped from providing a service if they break the law or do not meet certain standards when carrying out their job.
It is not thought that this type of regulation, in the context of the complexity and value of real estate industry transactions, offers sufficient protection for consumers.
In March 2007, Cabinet noted a range of problems with the Real Estate Agents Act 1976 and agreed to a full review of it, including the entry and annual licensing requirements, consumer redress, discipline and general regulation of real estate agents; activities. In May 2007, the Government’s preferred option for reform of the Real Estate Agents Act 1976 was published.
Occupational regulation with new independent licensing, complaints, and disciplinary schemes is the preferred model. This will require primary legislation to replace the existing Real Estate Agents Act 1976. The preferred model will also make provision for increased control over industry entry requirements such as education and training. It will set out a range of disclosure requirements, ensuring that where a conflict of interest arises it is disclosed to the consumer.
There will also be a range of measures designed to widen the offences and the sanctions and remedies that are available.
A new stand-alone regulatory body, independent of the industry, will be created called the Real Estate Agents Authority (the Authority).
The Authority will be responsible for the licensing and registration of real estate agents and salespeople. It will be compulsory for all persons who work in the real estate agent industry in any of the categories listed below to be licensed. There would be 3 categories of licence—
an agent’s licence: to permit a person or company to run a real estate business:
a branch manager’s licence: to permit a person to run a branch office for a licensed real estate agent business:
a salesperson’s licence: to permit a person to work for an agent as a salesperson.
The authority will also be responsible for setting entry criteria for real estate agents and salespeople; approving new licence applications and applications for licence renewals; maintaining a public register of agents and salespeople; setting industry standards (codes); provision of consumer information; and first-tier complaints and discipline procedures.
A Real Estate Agents Disciplinary Tribunal will be established, within the Ministry of Justice, which will be responsible for making decisions on serious cases referred to it by the Authority.
The Tribunal will have a range of penalties and remedies at its disposal, including the power to award compensation to consumers where it is satisfied that the person had suffered financial loss by reason of an act or omission by an agent. The Tribunal will have the power to order the interim suspension of an agent’s licence while it considers a case. It can also cancel an agent’s licence if it considers the person guilty of unsatisfactory conduct and impose a fine not exceeding $15,000 for individuals and $30,000 for a company.
Government: The main cost to government will be costs associated with the primary legislative process to replace the existing Real Estate Agents Act 1976. There will also be set-up costs and administrative costs for the proposed Disciplinary Tribunal that will be established within the Ministry of Justice; however, it is proposed that these costs would be recovered by a levy on the industry.
Industry: The Real Estate Agents Authority will be funded entirely by the real estate industry. It is estimated that the Authority would cost $4.4 million per year to operate. The cost would be recovered from the annual licensing fee. There will be an additional cost for running the Disciplinary Tribunal, which will be operated by the Ministry of Justice. To cover the set-up costs of the Authority and the Tribunal, estimated at $1.5 million, it is proposed that the levy will be collected by the Authority and paid to the Crown. However, it is expected that the overall costs of the regulatory regime will fall as the cost will be off-set by the fact that there will no longer be compulsory membership of the REINZ.
Consumers: The new scheme will be free to use for consumers.
Government: The Government is likely to benefit from the continued healthy growth of the industry. Rogue agents will be identified and removed from the industry ensuring consumer confidence is restored. This will protect consumer housing wealth and the overall wealth of the country.
Industry: Setting up a complaints and disciplinary system that is transparent, accessible, and independent from the industry will restore consumer confidence and allow for the healthy growth of the industry. As the new system reduces the numbers of complaints about the industry it will provide an environment in which those agents and salespeople who act responsibly, within the rules and regulations of the industry, will be able to thrive.
Consumers: It is estimated that the introduction of the proposed changes has the potential to greatly reduce the financial detriment currently experienced by consumers.
Primary legislation will be required to implement the proposal. It is intended that a new Real Estate Agents Bill be introduced in Parliament in late 2007.
The Ministry will continue to work with the industry and will provide regular updates by email and through the Internet as the Bill makes its passage through Parliament. The Ministry will also assist the industry to prepare for the changes required when the new Act comes into force in 2008.
In May 2007, after a series of public meetings around the country, the Government’s preferred option for reform of the Real Estate Agents Act 1976 was published for pubic consultation. Five hundred and ninety-seven responses were received. The majority of those responses came from within the industry: from industry representatives, real estate agents, and salespeople. The rest came from consumers and consumer representatives and other professional bodies.
A majority of the responses received, including a majority of those received from within the industry, recognised the need for major reform of the current Act.
These submissions, together with wider public comment on the content of the proposed regulation, have been used by Ministry officials to provide the required detail for the proposals.
In preparing the Cabinet paper and this RIS, the Ministry of Justice consulted with the Treasury, the Ministry of Consumer Affairs, the Ministry of Economic Development, the Department of Building and Housing, the Commerce Commission, and the State Services Commission. Comments from those agencies were taken into account in the paper.
Hon Clayton Cosgrove
Government Bill
185—1
Provisions relating to licences
Effect of licences and status of licensees
Cancellation, suspension, surrender of licence, etc
Unsatisfactory conduct and misconduct
Complaints Assessment Committee
Real Estate Agents Disciplinary Tribunal
Appeals against decisions of Tribunal
Receipt of money and audit of accounts
Disclosure of information as to transaction and conflicts of interest
Requirements where land sold by auction
Offences relating to requirement to be licensed
148 Offence of employing or contracting unlicensed or non-exempt person as agent, branch manager, or salesperson
Offences relating to application for licence
Offences relating to requirements for real estate transactions
Offences relating to investigation
Repeal of Real Estate Agents Act 1976
The Parliament of New Zealand enacts as follows:
This Act is the Real Estate Agents Act 2007.
This Act comes into force on the day after the date on which it receives the Royal assent.
(1) The purpose of this Act is to promote and protect the interests of consumers in respect of transactions that relate to real estate.
(2) The Act achieves its purpose by—
(a) regulating agents, branch managers, and salespersons:
(b) raising industry standards:
(c) providing accountability through a disciplinary process that is independent, transparent, and effective.
In this Act, unless the context otherwise requires,—
agency agreement means an agreement under which an agent is authorised to undertake real estate agency work for a client in respect of a transaction
agent means a real estate agent licensed under this Act
Authority means the Real Estate Agents Authority established by section 14
client means the person for whom an agent carries out real estate agency work
commission means remuneration by way of commission, fee, gain, or reward for services provided by an agent under an agency agreement
Complaints Assessment Committee or Committee means the Complaints Assessment Committee established under section 74
crime involving dishonesty has the same meaning as in section 2(1) of the Crimes Act 1961
Disciplinary Tribunal or Tribunal means the Disciplinary Tribunal established under section 97
expenses means any sum or reimbursement for expenses or charges incurred in connection with services provided by an agent in the capacity of agent
land includes all estates and interests, whether freehold or chattel, in real property, and includes any building and any part of a building; and, in relation to any transaction relating to land that also relates to any goods, chattels, or other property, also includes those goods or chattels and that other property
licence means a licence granted under this Act to act as an agent, branch manager, or salesperson
licensee means a person licensed under this Act as an agent, branch manager, or salesperson
Minister means the Minister who is for the time being responsible for the administration of this Act
officer, in relation to a licensee that is a company,—
(a) means every director, manager, or secretary of the company who, on behalf and in the name of the company, carries on the company’s business as a real estate agent; and
(b) includes any person, however designated, who is responsible for the management of the company and any person who is responsible for the management of any branch of the company, or (in relation to any 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 work
real estate agency work or agency work—
(a) means any work done or services provided, in trade, for or on behalf of another person in respect of a transaction; and
(b) includes any work done by a branch manager or salesperson to enable an agent to do the work or provide the services described in paragraph (a)
register means the register required to be established by the Registrar under section 62
sole agency agreement means an agreement between an agent and a client in which the client agrees to either or both of the following:
(a) not to instruct any other agent to act for the client in respect of the transaction to which the agreement relates:
(b) to pay a commission or other reward to the agent in circumstances in which the transaction is not effected by the agent
transaction means anything done to bring about 1 or more of the following:
(a) the sale, purchase, or other disposal or acquisition of a freehold estate or interest in land:
(b) the grant, sale, purchase, or other disposal or acquisition of a leasehold estate or interest in land (other than a tenancy to which the Residential Tenancies Act 1986 applies):
(c) the sale, purchase, or other disposal or acquisition of any business (either with or without any interest in land).
This Act binds the Crown.
(1) A person must not carry out any real estate agency work unless the person—
(a) is licensed under this Act and acts within the scope of that licence; or
(b) is exempt from the licensing requirement under any of sections 7 to 12 or under another enactment.
(2) No person may hold himself or herself out to the public as ready to carry out any agency work if that person is not licensed under this Act or exempt from the licensing requirement under any of sections 7 to 12 or under another enactment.
(3) For the purposes of this section, it is immaterial as to whether or not a person carries out any agency work as a business in its own right or as part of, or in connection with, any other business.
Compare: 1976 No 9 s 3(1)
(1) This section applies to any person who is—
(a) a lawyer within the meaning of the Lawyers and Conveyancers Act 2006 or a person acting under the supervision of such a lawyer; or
(b) a conveyancing practitioner within the meaning of the Lawyers and Conveyancers Act 2006 or a person acting under the supervision of such a conveyancing practitioner.
(2) A person to whom this section applies may carry out any real estate agency work but, in respect of the sale or other disposal of any land or business, is not entitled to be remunerated for that work by commission in addition to, or instead of, the professional charges of that lawyer or conveyancing practitioner.
(3) When any person to whom this section applies carries out any real estate agency work, that person—
(a) is deemed not to be doing so as an agent; and
(b) is not subject to any of the provisions of this Act; but
(c) is deemed to be acting in his or her capacity—
(i) as a lawyer within the meaning of the Lawyers and Conveyancers Act 2006; or
(ii) as a person acting under the supervision of a lawyer within the meaning of the Lawyers and Conveyancers Act 2006; or
(iii) as a conveyancing practitioner within the meaning of the Lawyers and Conveyancers Act 2006; or
(iv) as a person acting under the supervision of a conveyancing practitioner within the meaning of the Lawyer and Conveyancers Act 2006; and
(d) is subject accordingly to the provisions of the Lawyers and Conveyancers Act 2006.
Compare: 1976 No 9 s 3(7), (8)
A person who is licensed as an auctioneer under the Auctioneers Act 1928 may sell or offer to sell any land by auction.
Landcorp Farming Limited or any of its employees may carry out any real estate agency work in respect of any land of the Crown or any land of a State enterprise within the meaning of the State-Owned Enterprises Act 1986.
Compare: 1976 No 9 s 3(2)(d)
A person may, in accordance with a permit granted by the Authority, carry out real estate agency work involving a specified transaction, or a specified series of transactions.
Compare: 1976 No 9 s 3(2)(c)
A person who is exempted under an Order in Council made under section 12 may, in accordance with that order, carry out real estate agency work.
(1) The Governor-General may, by Order in Council, exempt any person or class of persons from the requirement to be licensed under this Act.
(2) An Order in Council under subsection (1) may be made only on the recommendation of the Minister given in accordance with section 13.
(3) An exemption under subsection (1) may be subject to any terms and conditions specified in the regulations.
(4) The Governor-General may, by Order in Council, vary or revoke an Order in Council made under subsection (1).
The Minister must not make a recommendation under section 12(2) unless the Minister—
(a) is satisfied that—
(i) there is little consumer benefit to be gained by requiring the persons proposed to be exempted from the requirement to be licensed; and
(ii) there are sufficient processes in place to ensure competent and ethical conduct on the part of those persons; and
(b) has consulted with representatives of organisations that, in the opinion of the Minister, have an interest in the proposed exemption.
This section establishes the Real Estate Agents Authority.
(1) The Authority is a Crown entity for the purposes of section 7 of the Crown Entities Act 2004.
(2) The Crown Entities Act 2004 applies to the Authority except to the extent that this Act expressly provides otherwise.
The functions of the Authority are to—
(a) administer the licensing regime for agents, branch managers, and salespeople, including the granting and renewal of licence applications; and
(b) establish, keep, and maintain the register and carry out any other functions in relation to the register; and
(c) develop practice rules for the Minister’s approval and maintain these rules for licensees, including ethical responsibilities; and
(d) set fees and levies; and
(e) develop consumer information on matters relating to real estate transactions, including approved guides on agency agreements and sale and purchase agreements; and
(f) develop and provide consumer information on matters relating to the provision of real estate services, including providing the public with information on how to make a complaint; and
(g) set professional standards for agents; and
(h) investigate and initiate proceedings in relation to offences under this Act and any other enactment; and
(i) provide procedures for the lodging of complaints; and
(j) receive complaints relating to the conduct of licensees; and
(k) carry out any other function that the Minister may direct the Authority to perform in accordance with section 112 of the Crown Entities Act 2004; and
(l) carry out any other functions that may be conferred on the Authority by this Act or any other enactment.
(1) The Authority consists of no more than 7 members.
(2) Members of the Authority are the board for the purposes of the Crown Entities Act 2004.
(3) The Minister must appoint 1 member to be the chairperson of the board and that member must be a barrister and solicitor.
(4) In addition to the criteria for appointments set out in section 29 of the Crown Entities Act 2004, the Minister must, when making any appointment, consider the need for the Authority to represent the views of a broad range of interests, including consumer and industry interests.
(1) The Authority may, by notice in the Gazette, make any practice rules to enable it to discharge the duty imposed on it by subsection (2).
(2) The Authority must have rules that include or provide for a code of professional conduct and client care, which will be a reference point for discipline and which will focus on, but need not be limited to, the duties of agents to their clients.
The Authority may, by notice in the Gazette, make practice rules that—
(a) provide for the times or frequencies at which continuing education must be undertaken and the topics to be addressed:
(b) require that particular continuing education be undertaken, or (in addition or as an alternative) require that the continuing education comply with specified requirements:
(c) exempt, or provide for the exemption of, any agent, branch manager, or salesperson from all or any practice rules made under paragraph (b).
Practice rules are made by the Authority with the approval of the Minister and after consultation with—
(a) agents, branch managers, and salespersons; and
(b) any other persons or groups that the Minister may direct.
The Minister must, in deciding whether to approve any practice rules, have regard, among other things, to—
(a) the principle that it may be necessary or expedient to impose duties or restrictions on agents, branch managers, or salespersons in order to protect the interests of consumers:
(b) the principle that the burden of a duty or restriction should be proportionate to the benefits that are expected to result from the imposition of the duty or restriction:
(c) the consistency of the rules with New Zealand's international obligations:
(d) the provisions of this Act and all rights and obligations of agents under the law.
(1) If the Minister considers any practice rules to be deficient in any respect, the Minister may, subject to subsections (2) and (3), make any amendments to those rules that are necessary to remedy the deficiency.
(2) Amendments made under subsection (1) to practice rules may relate only to matters in respect of which practice rules may be made.
(3) The Minister, in deciding whether to make amendments under subsection (1) to any practice rules,—
(a) must consult the Authority; and
(b) may consult with any other persons or groups that the Minister thinks fit.
(1) Every notice under section 18 or 19 comes into force on a date specified in the notice, being not less than 28 days after the date of publication of the notice in the Gazette.
(2) Every notice under section 18 or 19 is a regulation for the purposes of the Regulations (Disallowance) Act 1989, but is not a regulation for the purposes of the Acts and Regulations Publication Act 1989.
(3) The Authority must ensure that an up-to-date version of each notice that the Authority has published under either of sections 18 or 19 is—
(a) available on the Authority’s website; and
(b) available at the office of the Authority during business hours, so that members of the public may—
(i) inspect the notice free of charge; or
(ii) obtain a photocopy of the notice for a reasonable fee.
(1) The Authority may from time to time, by notice in the Gazette, prescribe the fees payable for any action that a person wishes the Registrar to perform under this Act.
(2) Different fees may be prescribed under this section for different kinds of action and for different classes of person, depending on the kind of licence that they have, or wish to obtain or renew.
(3) Any notice prescribing any fee under this section may exempt any class or classes of person from liability to pay any such fee, and may provide for the waiver or refund of any such fee.
(1) The Authority may from time to time, by notice in the Gazette, impose on every licensee an operational levy of any amount that the Authority thinks fit for the purpose of funding the costs arising from any or all of the following:
(a) the performance of the functions of the Authority:
(b) the performance of the functions of the Registrar:
(c) any investigation by, or proceeding of, the Complaints Assessment Committee.
(2) Any notice imposing any levy under this section may do either or both of the following:
(a) prescribe different amounts as the levy payable by different classes of licensee:
(b) exempt from liability to pay that levy, in whole or in part, any class or classes of licensee, and may provide for the waiver or refund of the whole or part of that levy.
(1) The Authority may from time to time, by notice in the Gazette, impose on every licensee a disciplinary levy of any amount that the Authority thinks fit for the purpose of funding the costs arising from any proceeding of the Tribunal.
(2) Any notice imposing any levy under this section may do either or both of the following:
(a) prescribe different amounts as the levy, in whole or in part, payable by different classes of licensee:
(b) exempt from liability to pay that levy, in whole or in part, any class or classes of licensee, and may provide for the waiver or refund of the whole or part of that levy.
Compare: 2003 No 48 s 131
(1) Every notice under any of sections 24 to 26 comes into force on a date specified in the notice, being not less than 28 days after the date of publication of the notice in the Gazette.
(2) Every notice under any of sections 24 to 26 is a regulation for the purposes of the Regulations (Disallowance) Act 1989, but is not a regulation for the purposes of the Acts and Regulations Publication Act 1989.
(3) The Authority must ensure that an up-to-date version of each notice that the authority has published under any of sections 24 to 26 is—
(a) available on the Authority’s website; and
(b) available at the office of the Authority during business hours, so that members of the public may—
(i) inspect the notice free of charge; or
(ii) obtain a photocopy of the notice for a reasonable fee.
(4) Every levy imposed by the Authority under sections 24 to 26, is payable, and recoverable as a debt due, to the Authority.
(5) The Authority receives any levies imposed under section 26 as agent for the chief executive of the Ministry of Justice.
(6) If any fee is payable to the Authority under this Act, the Registrar may decline to do any act, or to permit any act to be done, or to receive any document in respect of which that fee is payable, until the fee is paid.
Compare: 2003 No 48 s 132
(1) All fees and levies required to be paid under this Act are payable to the Registrar or the Authority.
(2) All fines imposed on a person by the Complaints Assessment Committee or by the Disciplinary Tribunal are payable to the Registrar.
(1) This section applies in any case where the Authority is satisfied, in respect of any agent,—
(a) that there are reasonable grounds to believe that he or she, or, if the agent is a company, any officer of the company, has been guilty of theft or of any improper conduct in relation to the money or other property of any other person; or
(b) that there are reasonable grounds to believe that any money or other property entrusted to the agent has been stolen by his or her employee, salesperson, or agent, or, if the 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 to properly 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) if the agent is a company, that the company has been put into liquidation; or
(g) if the agent is a building society, that the building society is being dissolved; or
(h) that the licence of the agent has been cancelled or suspended; or
(i) that the 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 Authority requiring him or her to do so.
(2) In any case to which this section applies, the Authority may, if in its opinion it is appropriate to do so, take possession of any financial records, deeds, or other documents belonging to the agent or held in the course of his or her business in his or her possession or under his or her control or, if the agent is a company, in the possession or under the control of any officer, employee, or agent of the company.
Compare: 1976 No 9 s 88
(1) This section applies if the Authority has reasonable grounds to believe that any money entrusted to an agent has been stolen—
(a) by the agent or the agent’s employee or agent; or
(b) in the case of a company that is an agent, by an officer, employee, or agent of the company.
(2) The Authority may inspect all financial records or other records that relate to any money received by any of the persons specified in subsection (3), whether or not the money has been paid into a private account or a trust account at a bank.
(3) The persons are as follows:
(a) the agent or the agent’s employee or agent:
(b) in the case of a company that is an agent, an officer, employee, or agent of the company.
Compare: 1976 No 9 s 89(1)
(1) Upon taking possession of any document under section 30, the Authority must, without delay, serve on the agent concerned a notice giving particulars of the document and the date on which it was taken into the Authority’s possession.
(2) If any such document is the property of a firm of agents in which the agent is a partner, a copy of the notice must be served on each partner in the firm.
(3) Within 14 days after the notice has been served, the agent, or any of his or her partners, may apply to a District Court Judge for an order directing the Authority to return any document specified in the order to the person from whom it was received, or for any other order that the District Court Judge thinks fit.
Compare: 1976 No 9 s 90
The functions of the Registrar are to—
(a) establish, keep, and maintain the register under section 62; and
(b) make decisions about whether persons meet the requirements for licensing or continued licensing; and
(c) issue, cancel, and suspend licences, and to perform the other functions relating to licensing under Part 3; and
(d) provide administrative support for the board of the Authority sufficient to enable the board to perform its functions efficiently and effectively; and
(e) perform any other function conferred on the Registrar by this Act or any other enactment.
(1) The Registrar may delegate to any person (whether an employee of the State services or not), either generally or particularly, any of the Registrar’s functions, duties, and powers except the power of delegation.
(2) A delegation—
(a) must be in writing; and
(b) may be made subject to any restrictions and conditions that the Registrar thinks fit; and
(c) is revocable at any time, in writing; and
(d) does not prevent the performance or exercise of a function or duty or exercise of any power by the Registrar.
(3) A person to whom any functions, duties, or powers are delegated may perform those functions and duties and exercise those powers in the same manner and with the same effect as if they had been conferred directly by this Act and not by delegation.
(4) A person who appears to act under a delegation is presumed to be acting in accordance with its terms in the absence of evidence to the contrary.
(1) An individual may be licensed as an agent or branch manager if the individual satisfies the Registrar that he or she—
(a) has attained the age of 18 years; and
(b) is not prohibited from holding a licence under section 35; and
(c) is a fit and proper person to hold a licence; and
(d) has the prescribed qualifications; and
(e) has obtained 2 years experience in the real estate sector within the 10 years preceding the application to be licensed as an agent or branch manager under this Act.
(2) An individual may be licensed as a salesperson if the individual satisfies the Registrar that he or she—
(a) has attained the age of 18 years; and
(b) is not prohibited from holding a licence under section 35; and
(c) is a fit and proper person to hold a licence; and
(d) has the prescribed qualifications.
(3) A company or a body corporate may be licensed as an agent if at least 1 director or member, as the case may be, of the governing body of the body corporate satisfies the Registrar of the matters set out in subsection (1).
Compare: 1976 No 9 s 17(1),(3)
(1) The following persons are not eligible to hold a licence:
(a) a person who has been convicted, whether in New Zealand or another country, of a crime involving dishonesty within the 10 years preceding the application for a licence:
(b) a person who has been convicted of an offence under sections 14, 17 to 22, or 24 to 26 of the Fair Trading Act 1986, within the 5 years preceding the application for a licence:
(c) a person whose licence or certificate of approval has been cancelled within the preceding 5 years or whose licence is suspended at the time of application under the Real Estate Agents Act 1976:
(d) a person whose licence has been cancelled within the last 5 years or whose licence is suspended at the time of application under this Act:
(e) a person subject to an order made, or a notice given, under the law of a prescribed country, State, or territory outside New Zealand, who is prohibited from acting as an agent, branch manager, or salesperson (or equivalent) in that country, State, or territory:
(f) a person who is an officer of a licensee company, a chief executive officer of a licensee company, or a branch manager and who has been disqualified from holding a licence or whose licence has been suspended under the Real Estate Agents Act 1976:
(g) a person who is prohibited from being a director or promoter of, or being concerned or taking part in the management of, an incorporated body under the Companies Act 1993, the Securities Markets Act 1988, or the Takeovers Act 1993:
(h) a company, or other corporate entity or partnership, where a person concerned in its management is disqualified from being licensed in his or her own right under paragraph (a).
(2) A person is not eligible to hold an agent’s licence if he or she is an undischarged bankrupt or is subject to Subpart 4 of the Insolvency Act 2006.
Compare: 1976 No 9 s 17(2)
An application for a licence under this Part must—
(a) be made to the Registrar in the prescribed form; and
(b) be accompanied by the prescribed fee (if any).
Compare: 1976 No 9 s18
The applicant must advertise the application for a licence in the prescribed manner.
Compare: 1976 No 9 s 20(1)
(1) A person may, within the prescribed time and in the prescribed manner, give the Registrar written notice of his or her desire to object to the issue of a licence to the applicant.
(2) No objection may be made under subsection (1) except on 1 or more of the following grounds:
(a) that the applicant is not eligible to obtain a licence by virtue of section 34 or 35:
(b) if the applicant is an individual, 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) if 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) if the applicant is a company, that any person who will be an officer of the company if the application is granted is not, by reason of his or her personal character or financial position, a proper person to be an officer of a licensee company.
(3) The notice of objection must include a statement of the grounds relied on and any prescribed matters.
(4) The Registrar must send a copy of the notice to the applicant.
Compare: 1976 No 9 s 20(2)–(5)
(1) An applicant to whom a notice of objection has been sent may, within the prescribed time, send to the Registrar a written submission in response to the notice of objection.
(2) If an applicant sends a written response to the Registrar, the Registrar must send a copy of it to every person who gave notice of an objection.
If notice of an objection to an application is made the Registrar must,—
(a) as soon as practicable, appoint a time and place for hearing the application and objection; and
(b) give at least 14 days notice of the hearing to the applicant and to any person objecting to the issue of the licence; and
(c) hear the applicant and any person objecting to the issue of the licence, if required to do so; and
(d) consider the evidence put before him or her, including any written submission in response that is provided by the applicant under section 39.
(1) The Registrar must grant a licence to the applicant if, after hearing any objection to the issue of a licence, the Registrar is satisfied that the applicant—
(a) is entitled to be licensed as an agent, branch manager, or salesperson under section 34; and
(b) is not prohibited from being licensed as an agent, branch manager, or salesperson under section 35.
(2) The Registrar, on granting the licence, must—
(a) issue to the applicant 1 of the following classes of licence:
(i) an agent licence; or
(ii) a branch manager licence; or
(iii) a salesperson licence; and
(b) send to the applicant evidence of the issue of that licence, in the prescribed form; and
(c) enter the applicant’s name in the register; and
(d) issue a registration number to the applicant and notify the applicant as to what the registration number is.
(3) If the Registrar is not satisfied that the applicant is entitled to be licensed as an agent, branch manager, or salesperson, the Registrar must—
(a) decline the application; and
(b) notify the applicant of the Registrar’s decision and the reasons for it; and
(c) notify the applicant of his or her right of appeal against the decision.
Compare: 1976 No 9 s 23
(1) A person must not, after the issue to him or her of a real estate agent licence, enter into partnership with any person in respect of his or her business as an agent without the prior approval of the Authority; and the Authority must refuse to grant its approval unless it is satisfied that the proposed partner holds an agent licence.
(2) If a company or body corporate is the holder of an agent licence, a person who was not, at the date of the issue of the licence, an officer of the company may not act in that capacity in respect of that company without the prior approval of the Authority on an application made in that behalf.
(3) Under subsection (2), the Authority must refuse to grant its approval unless it is satisfied that—
(a) the person is eligible to apply for or obtain an agent licence; or
(b) if the 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.
Compare: 1976 No 9 s 30
A licensee must, if asked by any person, produce for inspection by that person either—
(a) the evidence of the issue of a licence sent to that person under section 41; or
(b) a copy of that evidence.
(1) A licence continues in force for a period of 12 months commencing on the date that the Registrar enters the applicant’s name in the register, unless—
(a) the licence is cancelled under section 53; or
(b) the licensee is suspended under section 56 or 57;
(c) the licence is surrendered under section 60.
(2) A licence may be renewed for further 1-year periods in accordance with section 51.
A licence may not be transferred and may not vest by operation of law in any person other than the person to whom the licence was granted.
A licence as an agent authorises the licensee to carry out real estate agency work on his or her own account, whether in partnership or otherwise.
A licence as a branch manager or salesperson authorises the licensee to carry out real estate agency work for or on behalf of an agent.
A salesperson must, in carrying out any agency work, be properly supervised and managed by an agent or a branch manager.
(1) A salesperson may be employed by an agent as an employee or may be engaged by an agent as an independent contractor.
(2) Any written agreement between an agent and a salesperson is conclusive so far as it expressly states that the relationship between the agent and the salesperson is that of employer and independent contractor.
The chief executive of the Ministry of Justice must, not later than the date that is 5 years after the commencement of this Act, report to the Minister as to whether—
(a) section 49 continues to be appropriate; and
(b) in particular, whether the employment status of salespersons should be determined by the Employment Relations Act 2000.
(1) An application for renewal of a licence must, before the date on which the licence expires,—
(a) be made to the Registrar in the prescribed form; and
(b) be accompanied by the prescribed fee (if any).
(2) Sections 34, 35, and 41 apply, with any necessary modifications, to an application for renewal of a licence.
(3) If an application for renewal of a licence has been made but not determined before the date on which the licence is due to expire, the licence continues in force until the application is determined.
(4) The grant of a renewal of a licence takes effect from the date of expiry of the previous licence.
Compare: 1976 No 9 s 29
If no application for the renewal of a licence is made on or before the date on which the licence would otherwise expire, the Registrar must record the expiry of the licence in the register as soon as practicable after that date.
The Registrar must cancel a person’s licence and remove that person’s name from the register,—
(a) in the case of an individual, if the person dies; or
(b) if the person gives written notice to the Registrar requesting that the Registrar cancel his or her licence; or
(c) if the person has failed to maintain the prescribed qualifications; or
(d) in accordance with section 96; or
(e) in accordance with section 107(2)(b); or
(f) if the licence was granted on the basis of any false or fraudulent representation or declaration made orally or in writing; or
(g) if the person has failed to pay any prescribed fees or levies, or payment of the fee or levy has subsequently been dishonoured.
(1) The process for cancellation of a licence, other than by determination of the Tribunal under section 107 or at the request of the licensee under section 53(b), is as follows:
(a) the Registrar must give the licensee written notice of the Registrar’s intention to cancel the licence; and
(b) the notice must—
(i) contain or be accompanied by a statement of the Registrar’s reasons for the cancellation; and
(ii) state that the licensee has 10 working days within which to make written representations to the Registrar as to why the licence should not be cancelled; and
(c) if any written representations are made by the licensee in accordance with paragraph (b)(ii), the Registrar must take those representations into account when deciding whether to cancel the licence; and
(d) the Registrar must then decide whether to cancel the licence and notify the licensee of the Registrar’s decision as soon as practicable.
(2) If the Registrar decides to cancel the licence, the Registrar must—
(a) include in the notice referred to in subsection (1)(d) the grounds for the decision and the date on which the cancellation takes effect; and
(b) specify in the notice that the licensee has a right of appeal to the Tribunal under section 109; and
(c) record the cancellation on the register as soon as practicable.
The cancellation takes effect on the date specified by the Registrar in the notice given to the licensee under section 54(1)(d), which must be a date after the date of that notice.
The Registrar must, on receiving notice from the Tribunal that the licence of a licensee has been suspended under section 107(2)(c) or 112, record that suspension on the register for the period specified in the notice.
(1) A licensee may, by written notice to the Registrar, request that the Registrar suspend his or her or its licence for a period specified in the notice.
(2) The Registrar must suspend the person’s licence and record the suspension in the register for that specified period.
(3) A person whose licence is suspended under this section may, by written notice to the Registrar, request that the Registrar revive that person’s licence.
(4) The Registrar must then revive that person’s licence unless there is some other ground for cancellation or suspension of that person’s licence under section 53 or 56.
(1) A person is not a licensed agent, branch manager, or salesperson for the purposes of this Act for the period during which his or her licence is suspended.
(2) At the end of the period of suspension the person’s licence is immediately revived unless there is some other ground for cancellation or suspension of that person’s licence under section 53 or 56.
(1) The suspension of a licence under section 56 takes effect on the date notified in the Tribunal’s decision communicated under section 110 or 112.
(2) The suspension of a licence under section 57 takes effect on the date the suspension is recorded in the register.
(1) A licensee may, by written notice to the Registrar, surrender his or her licence.
(2) A written notice under subsection (1) must be accompanied by the licence.
(3) The Registrar must cancel the person’s licence and record the cancellation in the register.
(4) The cancellation takes effect on the date the cancellation is recorded in the register.
(5) The surrender of a licence under this section does not affect the licensee’s liability—
(a) to pay any fees 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:
(c) for any act done or default made before the date on which the licence ceased to have effect.
(1) A reference in this section to a licensee is a reference to a licensee who is an agent.
(2) Any of the following persons may apply to the Authority in the prescribed form for permission to carry on or appoint some other person to carry on the licensee’s business as an agent for a period specified by the Authority:
(a) in the case of a licensee who is a person subject to a property order under the Protection of Personal and Property Rights Act 1988, the manager of his or her estate; or
(b) in the case of a licensee in respect of whom a property order is in force under the Protection of Personal and Property Rights Act 1988, the manager of his or her estate; or
(c) in the case of a licensee who is deceased, his or her personal representative; or
(d) in the case of a licensee who has been adjudicated bankrupt, his or her assignee in bankruptcy; or
(e) in the case of a licensee company that is in liquidation or receivership, the liquidator or receiver of that company, as the case may be; or
(f) in the case of a licensee who is sick, absent, or is otherwise temporarily prevented from carrying on business as a real estate agent, his or her nominated representative; or
(g) in the case of a licensee building society that is being dissolved, the liquidator or other person conducting its dissolution, or a trustee appointed under an instrument of dissolution of the building society.
(3) If, under subsection (2), a person mentioned in that subsection has applied to the Authority for permission to carry on or to appoint some other person to carry on a licensee’s business, then, until the application has been determined, the Registrar may, in writing, authorise the applicant to carry on the licensee’s business, either personally or by an agent, for any period not exceeding 2 months.
(4) Despite subsection (3), an authority given under that subsection in any event ceases to have effect when the application for the Authority’s permission under subsection (2) is determined.
Compare: 1976 No 9 s 32
(1) The Registrar must establish, keep, and maintain, in accordance with this Act, a register of licensees.
(2) The Registrar must enter in the register—
(a) the name of every licensee; and
(b) the information about that licensee that is specified in section 65, to the extent that the information is relevant to that person.
(3) The Registrar must make any other entries in the register that may be required, permitted, or directed to be entered by or under this Act or the regulations.
Compare: 1976 No 9 s 36
The purpose of the register is—
(a) to enable the public to—
(i) determine whether a person is a licensed agent, branch manager, or salesperson and, if so, the status and history of that person’s licence; and
(ii) choose a suitable agent or salesperson from a list of agents and salespersons; and
(iii) know how to contact the agent or salesperson; and
(iv) know which licensees have been disciplined within the last 3 years; and
(b) to facilitate the administrative, disciplinary, and other functions of the Authority, Registrar, and Disciplinary Tribunal under this Act.
(1) The register may be kept—
(a) as an electronic register (for example, on the Authority’s website); or
(b) in any other manner that the Registrar thinks fit.
(2) The register must be operated at all times, unless the Registrar suspends the operation of the register, in whole or in part, in accordance with subsection (3).
(3) The Registrar may refuse access to the register or otherwise suspend the operation of the register, in whole or in part, if the Registrar considers that it is not practicable to provide access to the register.
(1) The register must contain all of the following information for each licensee whose name is entered in the register:
(a) the full name and business address or, in the case of a company, registered office address:
(b) any aliases:
(c) the registration number issued by the Registrar:
(d) the address for communications under this Act:
(e) the name of any company, body corporate, or other agent that is associated with the licensee:
(f) any information about the status and history of the person’s licence, particularly—
(i) the class of licence held by the person; and
(ii) the date on which the person’s name was entered in the register; and
(iii) the date of expiry of the person’s licence, or as the case may be, the date of renewal of the licence; and
(iv) the date on which the term of renewal of the licence expires; and
(v) any action taken on a disciplinary matter in respect of the person in the last 3 years:
(g) any other information that the Registrar considers necessary for the purposes of the register.
(2) The register must also show—
(a) whether a licence was suspended in the last 3 years; and
(b) if paragraph (a) applies,—
(i) the ground under this Act for the suspension (for example, whether for non-payment of a fee or levy set by the Authority that was required from the licensee); and
(ii) the period of the suspension; and
(iii) any conditions for termination of the suspension.
(1) Each applicant for a licence, and each licensee, must give written notice to the Registrar of any change in circumstances within 10 working days after the change.
(2) In this section, change of circumstances means—
(a) any change in the information recorded in the register; and
(b) any change in the real estate business for which the agent, branch manager, or salesperson works (if any); and
(c) any change that may be prescribed.
The Registrar may at any time make any amendments to the register that are necessary to—
(a) reflect any changes in the name of the licensee or the information specified in section 65; or
(b) correct a mistake caused by any error or omission on the part of the Registrar or any person to whom the Registrar has delegated his or her functions, duties, or powers.
Compare: 1976 No 9 s 38
(1) A person may search the register, on payment of the prescribed fee, for a purpose set out in section 63.
(2) The Registrar must make the register available for public inspection—
(a) during the hours when the office of the Registrar is open to the public for the transaction of business on a working day; and
(b) at any other time that the Registrar allows.
(3) The Registrar must supply copies of all or part of the register on request and on payment of a reasonable charge for the production of the copy if the provision of those copies is consistent with the register’s purposes.
A person who searches the register for a purpose that is not a purpose set out in section 63 must be treated, for the purposes of Part 8 of the Privacy Act 1993, as if that person has breached an information privacy principle under section 66(1)(a)(i) of that Act.
In this Part, unless the context otherwise requires, licensee has the meaning given to it by section 4 and includes—
(a) a former licensee; and
(b) a person who is or has been an officer of a company that is, or has been, a licensee.
For the purposes of this Act, a licensee is guilty of unsatisfactory conduct if the licensee carries out real estate agency work that—
(a) falls short of the standard that a reasonable member of the public is entitled to expect from a reasonably competent licensee; or
(b) is incompetent or negligent; or
(c) would reasonably be regarded by agents of good standing as being unacceptable.
For the purposes of this Act, a licensee is guilty of misconduct if the licensee’s conduct—
(a) would reasonably be regarded by licensees of good standing, or reasonable members of the public, as disgraceful; or
(b) constitutes seriously incompetent or seriously negligent real estate agency work; or
(c) consists of wilful or reckless contravention of this Act, other Acts that apply to the conduct of licensees (such as the Fair Trading Act 1986) or of regulations or rules made under the Act; or
(d) constitutes an offence for which the licensee has been convicted, being an offence (such as a crime involving dishonesty) that reflects adversely on the licensee’s fitness to be a licensee.
(1) Any person may, in accordance with regulations made under this Act, complain in writing to the Authority about the conduct of a licensee.
(2) When the Authority receives a complaint under this section, the Authority must refer the complaint to the Committee and notify the person complained about of the reference.
(1) The Authority must appoint 3 members of the board to be members of the Complaints Assessment Committee.
(2) One of the members of the Committee must be a lawyer.
(3) The Authority must appoint 1 of the members of the Committee to preside at the meetings of the Committee.
(4) If the member appointed to preside is, for any reason, absent from duty, the other members of the Committee must appoint 1 of their number to preside at the meeting.
(5) The member appointed under subsection (3) or (4) may determine whether, for the purposes of investigating, hearing, and determining any complaint under this Act, the Committee is to be constituted by 2 or 3 members.
(6) The Authority must ensure that the membership of the Committee is maintained at all times.
The functions of the Committee are—
(a) to inquire into and investigate complaints made under section 73:
(b) to promote, in appropriate cases, the resolution of complaints by negotiation, conciliation, or mediation:
(c) to make final determinations in relation to complaints:
(d) to lay, and prosecute, charges before the Disciplinary Tribunal:
(e) in appropriate cases, to refer the complaint to another agency:
(f) to inform the complainant and the person complained about of its decision, reasons for the decision, and appeal rights:
(g) to publish its decisions:
(h) to oversee the Authority’s role of providing information to the public about the complaints and discipline system.
(1) As soon as practicable after receiving a complaint concerning a licensee, the Committee must consider the complaint and determine whether to proceed with it.
(2) The Committee may—
(a) determine that the complaint alleges neither unsatisfactory conduct nor misconduct and dismiss it accordingly:
(b) determine that the complaint discloses only a trivial or inconsequential matter, and for this reason need not be pursued:
(c) determine that the complaint is frivolous or vexatious and not made in good faith, and for this reason need not be pursued:
(d) determine that the complaint should be referred to another agency, and refer it accordingly:
(e) determine to proceed with the complaint.
(1) The Committee may, in its discretion, decide to take no action or, as the case may require, no further action on any complaint if, in the opinion of the Committee,—
(a) the length of time that has elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made is such that an investigation of the complaint is no longer practicable or desirable; or
(b) the subject matter of the complaint is trivial.
(2) Despite anything in subsection (1), the Committee may, in its discretion, decide not to take any further action on a complaint if, in the course of the investigation of the complaint, it appears to the Committee that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.
Compare: 2006 No 1 s 138
(1) In any case where the Committee decides to take no action on a complaint, the Committee must promptly give written notice of that decision to—
(a) the complainant; and
(b) the person complained about.
(2) The notice must—
(a) state the decision and the reasons for it; and
(b) describe the right of appeal conferred by section 108.
Compare: 2006 No 1 s 139
(1) If the Committee decides to inquire into a complaint, it must inquire into it as soon as practicable.
(2) The Committee may authorise any person to assist it with its inquiry.
Compare: 2006 No 1 s 140
The Committee—
(a) must send particulars to the person complained about, and invite that person to make a written explanation in relation to the complaint:
(b) may require the person complained about to appear before it to make an explanation in relation to the complaint:
(c) may, by written notice served on the person complained about, request that specified information be supplied to the Committee in writing.
Compare: 2006 No 1 s 141
(1) The Committee must exercise its powers and perform its duties and functions in a way that is consistent with the rules of natural justice.
(2) The Committee may, subject to subsection (1), direct such publication of its decisions under sections 77, 86, and 90 as it considers necessary or desirable in the public interest.
(3) The Committee may regulate its procedure in any manner that it thinks fit as long as it is consistent with this Act and any regulations made under it.
Compare: 2006 No 1 s 142
(1) If the conditions stated in subsection (2) are satisfied, the Committee may, by notice in writing, require any person to produce to the Committee any papers, documents, records, or things.
(2) The conditions referred to in subsection (1) are that—
(a) the members of the Committee believe, on reasonable grounds, that the exercise of the powers conferred by that subsection is necessary to enable the Committee to carry out its inquiry; and
(b) the person to whom a notice under that subsection is to be given has failed to comply with a previous request to produce to the Committee, within a reasonable time, the papers, documents, records, or things required by the notice; and
(c) the members of the Committee believe, on reasonable grounds, that—
(i) it is not reasonably practicable to obtain the information required by the Committee from another source; or
(ii) for the purposes of the investigation, it is necessary to obtain the papers, documents, records, or things to verify or refute information obtained from another source.
Compare: 2003 No 48 s 77
(1) A person who receives a notice under section 82 must, without charge, comply with the requirement stated in the notice in the manner and within the period (being not less than 10 working days after the notice is given to the person) specified in the notice.
(2) Subsection (1) does not require a person to provide any information or produce any document that would be privileged in a court of law.
(3) No person is required to produce to the Committee any papers, records, documents, or things if compliance with that requirement would be in breach of an obligation of secrecy or non-disclosure imposed on the person by an enactment (other than this Act, the Official Information Act 1982, or the Privacy Act 1993).
Compare: 2003 No 48 s 78
(1) The Committee may give, in relation to any complaint received by it, a direction that, within a time or before a date fixed by the Committee, the parties both—
(a) explore the possibility of resolving, by negotiation, conciliation, or mediation,—
(i) the complaint; or
(ii) any issues relating to the complaint as the Committee specifies; and
(b) report to the Committee.
(2) The Committee must not give a direction under subsection (1) if it considers that such a direction—
(a) would not contribute constructively to resolving the complaint; or
(b) would not, in all the circumstances, be in the public interest; or
(c) would undermine the urgent nature of the complaint.
(3) If the parties reach an agreed settlement in relation to the complaint or any issue involved in the complaint, the Committee—
(a) may record the terms of the settlement; and
(b) may, by consent of the parties, declare all or some of the terms of the settlement to be all or part of a final determination of the complaint by the Committee.
(4) No evidence is admissible in any court or before any person acting judicially or before the Committee or before the Disciplinary Tribunal of any information, statement, or admission disclosed or made to any person in the course of any negotiation, conciliation, or mediation conducted, in accordance with a direction given under subsection (1), for the purpose of resolving a complaint or any issue involved in a complaint.
(5) Nothing in this section prevents the discovery or affects the admissibility of any evidence (being evidence which is otherwise discoverable or admissible and which existed independently of any negotiation, conciliation, or mediation conducted under a direction given under subsection (1) for the purpose of resolving a complaint or any issue involved in a complaint) merely because the evidence was presented in the course of the negotiation, conciliation, or mediation.
Compare: 2006 No 1 s 143
(1) The Committee may receive in evidence any statement, document, information, or matter that may in its opinion assist it to deal effectively with the matters before it, whether or not the statement, document, information, or matter would be admissible in a court of law.
(2) The Committee may take evidence on oath, and for that purpose, any member or officer of the Committee may administer an oath.
(3) The Committee may permit a person appearing as a witness before it to give evidence by tendering a written statement and, if the Committee thinks fit, verifying that statement by oath.
(4) The Evidence Act 2006 applies (subject to subsections (1) to (3)) to the Committee in the same manner as if it were a court within the meaning of that Act.
(5) This section is subject to sections 81(1) and 84(4).
Compare: 2006 No 1 s 151
(1) The Committee may make 1 or more of the determinations described in subsection (2) after both inquiring into a complaint and conducting a hearing with regard to that complaint.
(2) The determinations that the Committee may make are as follows:
(a) a determination that the complaint be considered by the Disciplinary Tribunal:
(b) a determination that there has been unsatisfactory conduct on the part of the licensee:
(c) a determination that the Committee take no further action with regard to the complaint or matter or any issue involved in the complaint.
(3) Nothing in this section limits the power of the Committee to make, at any time, a decision under section 77 with regard to a complaint.
Compare: 2006 No 1 s 152(1)–(3)
(1) A hearing conducted under section 86(1) by the Committee is to be a hearing on the papers, unless the Committee otherwise directs.
(2) If the Committee conducts the hearing on the papers, the Committee must make its determination on the basis of the written material before it.
(3) Consideration of the written material may be undertaken in whatever manner the Committee thinks fit.
Compare: 2006 No 1 s 153(1), (7), (8)
If the Committee makes a determination that the complaint be determined by the Disciplinary Tribunal, the Committee must—
(a) frame an appropriate charge and lay it before the Disciplinary Tribunal by submitting it in writing to the Tribunal; and
(b) give written notice of that determination and a copy of the charge to the person to whom the charge relates and to the complainant.
Compare: 2006 No 1 s 154
If, under section 88(a), the Committee lays before the Disciplinary Tribunal a charge against a licensee, the Committee may apply to the Tribunal for an order that, pending the determination of the charge, the licence of the licensee be suspended.
Compare: 2006 No 1 s 155
If the Committee makes a determination under section 86, the Committee may—
(a) make an order censuring or reprimanding the person complained about:
(b) order that all or some of the terms of an agreed settlement between the person complained about and the complainant are to have effect, by consent, as all or part of a final determination of the complaint:
(c) order that the person complained about apologise to the complainant:
(d) order that the person complained about undergo training or education:
(e) order the person complained about to reduce, cancel, or refund fees charged for work where that work is the subject of the complaint:
(f) order the person complained about—
(i) to rectify, at his or her or its own expense, any error or omission; or
(ii) where it is not practicable to rectify the error or omission, to take steps to provide, at his of her or its own expense, relief, in whole or in part, from the consequences of the error or omission:
(g) order the person complained about to pay to the Authority a fine not exceeding $10,000 in the case of an individual or $20,000 in the case of a company:
(h) order the person complained about, or the agent for whom the person complained about works, to make his or her business available for inspection or take advice in relation to management from persons specified in the order:
(i) order the person complained about to pay the complainant any costs or expenses incurred in respect of the inquiry, investigation, or hearing by the Committee.
(2) An order under this section may be made on and subject to any terms and conditions that the Committee thinks fit.
Compare: 2006 No 1 s 156(1)
(1) When the Committee makes a determination under section 86, the Committee must promptly give written notice of that determination to the complainant and to the person complained about.
(2) The notice must—
(a) state the determination and the reasons for it; and
(b) specify any orders made under section 90 and be accompanied by copies of those orders; and
(c) describe the right of appeal conferred by section 108.
Compare: 2006 No 1 s 158
(1) A person who is a member of the Committee or any person authorised by the Committee to assist it with any investigation or proceeding is not under any civil or criminal liability in respect of—
(a) any act done or omitted to be done in the course of performing or exercising any of that person’s functions, duties, or powers under this Act or done or omitted to be done to assist in that performance or exercise; or
(b) any words spoken or written at, or for the purpose of, the hearing of any proceedings under this Act; or
(c) anything contained in any notice given under this Act.
(2) Subsection (1) does not apply if the person acts in bad faith.
Compare: 2006 No 1 s 185
Every person has the same privileges and immunities as a witness has in a court of law in relation to—
(a) the giving of information to the Committee; and
(b) the giving of evidence to, or the answering of questions put by, the Committee; and
(c) the production of papers, documents, records, or things to the Committee.
Compare: 2006 No 1 s186(1)
Every counsel appearing before the Committee has the same privileges and immunities as counsel in a court of law.
Compare: 2006 No 1 s 187
An order for the payment of money made by the Committee may be enforced in all respects as if it were an order of the District Court on the filing of a sealed copy in that court.
If money payable by a person under an order by the Committee or by the Disciplinary Tribunal remains unpaid for 60 days or longer after the date of the order, the Committee may suspend the person’s licence until the person pays the money and, if he or she does not do so within 12 months, cancel his or her licence and direct the Registrar to remove the person’s name from the register.
(1) This section establishes a body to be known as the Real Estate Agents Disciplinary Tribunal.
(2) The Tribunal consists of—
(a) a person to act as chair of the Tribunal, who must be a barrister or solicitor with not less than 7 years’ legal experience; and
(b) up to 4 other members.
(3) The members of the Tribunal are appointed by the Minister.
For the purposes of each hearing, the Tribunal consists of—
(a) the chairperson of the Tribunal or, if the chairperson is absent from duty for any reason, a member designated by the Minister to be the deputy chairperson; and
(b) 2 other members.
The functions of the Tribunal are—
(a) to hear and determine any application made by the Complaints Assessment Committee for the suspension of the licence of a licensee pending the determination of a charge that the Committee has laid against the licensee:
(b) to hear and determine any charge against a licensee brought by the Committee:
(c) to hear any appeal under section 108 against a determination by the Committee (including a determination to take no action):
(d) to conduct any review, under section 109, of a decision of the Registrar.
The Ministry of Justice must furnish such secretarial, recording, and clerical services as may be necessary to enable the Tribunal to discharge its functions.
The provisions of Schedule 1 have effect in relation to the Tribunal and its proceedings.
(1) The Tribunal may regulate its procedures as it thinks fit.
(2) Subsection (1) is subject to the rules of natural justice and to this Act and any regulations made under this Act.
(1) Every person whose rights may be affected by a proceeding of the Disciplinary Tribunal (other than a review under section 109) is entitled to appear and be heard at the hearing of that proceeding and to be represented by counsel or otherwise.
(2) A charge made by the Committee against a licensee is, at the hearing, to be prosecuted by the Committee, which, for that purpose, may be represented by counsel or otherwise.
(1) Every hearing of the Disciplinary Tribunal must be held in public.
(2) Subsection (1)—
(a) does not apply to reviews under section 109; and
(b) is subject to subsections (3) and (4) and to section 105.
(3) If the Disciplinary Tribunal is of the opinion that it is proper to do so, having regard to the interest of any person (including (without limitation) the privacy of the complainant (if any)) and to the public interest, it may hold a hearing or part of a hearing in private.
(4) The Disciplinary Tribunal may, in any case, deliberate in private on its decision or on any question arising in the course of a hearing.
Compare: 2006 No 1 s 238
(1) If the Disciplinary Tribunal is of the opinion that it is proper to do so, having regard to the interest of any person (including (without limitation) the privacy of the complainant (if any)) and to the public interest, it may make 1 or more of the following orders:
(a) an order prohibiting the publication of any report or account of any part of any proceedings before it, whether held in public or in private:
(b) an order prohibiting the publication of the whole or any part of any books, papers, or documents produced at any hearing:
(c) an order prohibiting the publication of the name or any particulars of the affairs of the person charged or any other person.
(2) Unless it is reversed or modified in respect of its currency by the High Court on appeal under section 113, an order made under subsection (1) continues in force as specified in the order, or, if no time is specified, until the Disciplinary Tribunal, in its discretion, revokes it on the application of any party to the proceedings in which the order was made or of any other person.
(3) Subsection (1)(c) does not apply to any communications between the Disciplinary Tribunal and the Authority.
Compare: 2006 No 1 s 240
(1) Subject to section 102, the Disciplinary Tribunal may receive as evidence any statement, document, information, or matter that may, in its opinion, assist it to deal effectively with the matters before it, whether or not that statement, document, information, or matter would be admissible in a court of law.
(2) The Disciplinary Tribunal may take evidence on oath and, for that purpose, any member of the Disciplinary Tribunal may administer an oath.
(3) The Disciplinary Tribunal may permit a person appearing as a witness before it to give evidence by tendering a written statement and verifying that statement by oath.
(4) Subject to subsections (1) to (3), the Evidence Act 2006 applies to the Disciplinary Tribunal in the same manner as if the Disciplinary Tribunal were a court within the meaning of that Act.
(5) A hearing before the Disciplinary Tribunal is a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).
Compare: 2006 No 1 s 239
(1) If the Disciplinary Tribunal, after hearing any charge against a person who is a licensee, is satisfied that it has been proved on the balance of probabilities that the person has been guilty of misconduct, it may, if it thinks fit, make 1 or more of the orders specified in subsection (2).
(2) The orders are as follows:
(a) 1 or more of the orders that can be made by the Committee under section 90:
(b) an order cancelling the licence of the licensee and, in the case of a licensee that is a company, also cancelling the licence of any officer of the company:
(c) an order suspending the licence of the licensee for a period not exceeding 24 months and, in the case of a licensee that is a company, also suspending the licence of any officer of the company for a period not exceeding 24 months:
(d) an order that a licensee not perform any supervisory functions until authorised by the Board to do so:
(e) an order, in the case of a licensee who is an employee or independent contractor, or former employee or former independent contractor, that any current employment or engagement of that person by a licensee be terminated and that no agent employ or engage that person in connection with real estate agency work:
(f) an order that a licensee who is an individual pay a fine not exceeding $15,000 and order a licensee that is a company pay a fine not exceeding $30,000:
(g) where it appears to the Tribunal that any person has suffered loss by reason of any act or omission of a licensee, an order that the licensee pay to that person a sum by way of compensation as is specified in the order, being a sum not exceeding the amount that is from time to time prescribed in the regulations.
(3) The making of an order under this section for the payment of compensation to any person does not affect the right (if any) of that person to recover damages in respect of the same loss, but any sum ordered to be paid under this section, and the effect of any order made under this section for the reduction, cancellation, or refund of fees, must be taken into account in assessing any such damages.
(1) A person affected by a determination of the Committee may appeal to the Tribunal against a determination of the Committee within 20 working days after the date of the notice given under section 91.
(2) The appeal is by way of written notice to the Tribunal of the complainant’s intention to appeal, accompanied by—
(a) a copy of the notice given to the person under section 91; and
(b) any other information that the complainant wishes the Tribunal to consider in relation to the appeal.
(3) The appeal is by way of rehearing.
(4) After considering the appeal, the Tribunal may confirm, reverse, or modify the determination of the Committee.
(5) If the Tribunal reverses or modifies a determination of the Committee, it may exercise any of the powers that the Committee could have exercised.
(1) An applicant may apply to the Tribunal against a determination of the Registrar that adversely affects the applicant within 20 working days after the date the applicant is notified of the determination.
(2) The application must be made by way of written notice to the Tribunal of the applicant’s intention to apply, accompanied by—
(a) a copy of the notification; and
(b) any other information that the applicant wishes the Tribunal to consider in relation to the appeal.
(3) The review must be conducted on the papers unless the applicant requests to be heard in his or her application.
(4) After conducting the review, the Tribunal may confirm, reverse, or modify the decision of the Registrar.
(5) If the Tribunal reverses or modifies a determination of the Registrar, it may exercise any of the powers that the Registrar could have exercised.
When the Tribunal determines a matter in a proceeding, the Tribunal must notify every person involved in the proceeding, the Authority, and the Registrar of the determination in writing, setting out the reasons for the decision and the right of appeal to the High Court.
Any order made by the Tribunal under section 107 for the payment of any money may be enforced in all respects as if it were an order of the District Court on the filing of a sealed copy in that court.
(1) The Tribunal may suspend the licence of a licensee where—
(a) a licensee has been charged under section 88; and
(b) the Tribunal considers that it is necessary or desirable to suspend the licence having regard to the interests of the public.
(2) The process for suspending a licence under this section is as follows:
(a) the Tribunal must give a licensee written notice of its intention to suspend the licence; and
(b) the notice must—
(i) contain the Tribunal’s reasons for the intended suspension; and
(ii) state that the licensee has 10 working days within which to make written representations to the Tribunal as to why the licence should not be suspended; and
(iii) state the proposed period, or otherwise describe the proposed duration, of the suspension; and
(c) if any written representations are made by the licensee within the period referred to in paragraph (b)(ii), the Tribunal must take those representations into account in deciding whether to suspend the licence and the period or duration of any suspension; and
(d) the Tribunal must then decide whether to suspend the licence, and notify the licensee accordingly, as soon as practicable.
(3) If the Tribunal decides to suspend the licence, the Tribunal must give the licensee and the Registrar written notice of its decision and—
(a) include in the notice the grounds for the decision, the date on which the suspension takes effect, and the period or duration of the suspension; and
(b) specify in the notice the right of the licensee to appeal to the High Court under section 113.
A person who is affected by a decision of the Tribunal may appeal to the High Court against the decision.
(1) At any time before the final determination of an appeal, the High Court may make an interim order allowing the appellant to carry out real estate agency work until the close of the day on which the High Court finally determines the appeal.
(2) An interim order may be subject to any conditions that the High Court thinks fit.
(1) If an interim order is made allowing the appellant to engage in agency work,—
(a) that person is to be treated for the purposes of this Act as if he or she were licensed; and
(b) the Registrar must, as appropriate, enter, retain, or restore the person’s name on the register.
(2) To enable the Registrar to fulfil the duties imposed by this section, the Registrar of the court in which the interim order is made must send a copy of the order to the Registrar as soon as practicable.
Compare: 2007 No 15 s 83
(1) The High Court’s decision in the determination of an appeal is final.
(2) This section is subject to the right of a party to appeal to the Court of Appeal on a question of law under section 117.
Compare: 2007 No 15 s 84
(1) If dissatisfied with a decision of the High Court on the ground that it is erroneous in law, a party to an appeal under this Part may appeal to the Court of Appeal on a question of law only.
(2) The appeal must be heard and determined in accordance with the rules of court.
Compare: 2007 No 15 s 85
(1) All money received by an agent in respect of any transaction in his or her capacity as an agent must be paid to the person lawfully entitled to that money or in accordance with that person’s directions.
(2) Despite subsection (1), if an agent is in doubt on reasonable grounds as to the person who is lawfully entitled to the money, he or she must take all reasonable steps to ascertain as soon as practicable the person who is entitled and may retain the money in his or her trust account until that person has been ascertained.
(3) Pending the payment of any such money, the money must be paid by the agent into a general or separate trust account at any bank carrying on business in New Zealand under the authority of any Act and may 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 is available for payment of the agent’s debts, nor may it be attached or taken in execution under the order or process of any court at the instance of any of the agent’s creditors.
(5) Nothing in this section takes away or affects any just lien or claim that an agent who holds money to which this section applies has against the money.
Compare: 1976 No 9 s 56
(1) When an agent receives any money in respect of any transaction in his or her capacity as an agent, he or she must not pay that money to any person for a period of 10 working days after the date on which he or she received it.
(2) Despite subsection (1), a court order or an authority signed by all the parties to the transaction may require the agent to pay the money before the expiry of the period specified in that subsection.
(3) If at any time while holding any money on behalf of any party to the transaction, the agent receives written notice of any requisitions or objections in respect of the title to any land affected by the transaction, the agent must not at any time pay that money to any person except in accordance with a court order or an authority signed by all the parties to the transaction.
Compare: 1976 No 9 s 57
(1) As soon as an agent is asked by his or her client to do so, and in any case not later than 28 days after the agent receives any money in respect of the transaction in his or her capacity as an agent, the agent must render to the person lawfully entitled to the money an account in writing, setting out particulars of all such money, and its application.
(2) If an agent is in doubt on reasonable grounds as to the person who is lawfully entitled to any money, the agent must take all reasonable steps to ascertain as soon as practicable the person who is entitled and is not required to render an account under this section until the person lawfully entitled has been ascertained.
Compare: 1976 No 9 s 58
(1) Every general or particular trust account of an agent must be audited at the times and in the manner prescribed by regulations made under this Act.
(2) All information obtained by an auditor in the course of the audit of any trust account under this Act must be treated as confidential.
(3) Subsection (2) is subject to any rights of disclosure that may be prescribed for the purposes of the audit.
Compare: 1976 No 9 s 60
(1) This section applies in any case where the Authority is satisfied that any money entrusted to an agent is held by a banker in any trust account of the agent and the Authority is satisfied that the agent—
(a) is, owing to physical or mental disability, unable to administer his or her trust account properly; or
(b) has died; or
(c) has been adjudicated a bankrupt or has been admitted to the no asset procedure under the Insolvency Act 2006, or has been placed in receivership or liquidation under the Companies Act 1993; or
(d) has had his or her licence revoked; or
(e) has been suspended from carrying on the business of an agent; or
(f) has ceased to carry on the business of an agent and has neglected to wind up his or her trust account after reasonable notice has been given to him or her by the Authority requiring him or her to do so; or
(g) has not administered the trust account in accordance with the Act and regulations; or
(h) operates a trust account that has been administered recklessly.
(2) In any case to which this section applies the Authority may, if it is satisfied that it is appropriate, make an order appointing a suitable person to administer the trust account for a period specified by the Authority.
(3) A copy of every order made by the Authority under this section must be served on the banker, and on receipt of that copy the banker must allow the person appointed by the order to administer the trust account.
Compare: 1976 No 9 s 33
(1) The Authority may make an order appointing an appropriate person as an interim administrator of an agent’s trust account if the Authority reasonably suspects that—
(a) any money entrusted to the agent may be at risk; and
(b) 1 or more of the grounds specified in section 122(1) apply to that agent.
(2) The function of the interim administrator is to preserve the assets until the termination of the order under subsection (1).
(3) An order under subsection (1) is terminated when—
(a) the Authority notifies the agent concerned that the Authority no longer considers that money entrusted to the agent is at risk; or
(b) an order is made under section 122(2).
(4) Section 122(3) applies to an order made under this section.
(1) An agent is not entitled to any commission or expenses from a client for or in connection with any real estate agency work carried out by the agent for the client unless—
(a) the work is performed under a written agency agreement signed by or on behalf of—
(i) the client; and
(ii) the agent; and
(b) the agency agreement complies with any applicable requirements of any regulations made under section 155; and
(c) a copy of the agency agreement signed by or on behalf of the agent was given by or on behalf of the agent to the client within 48 hours after the agreement was signed by or on behalf of the person.
(2) A court before which proceedings are taken by an agent for the recovery of any commission or expenses from a person may order that the commission or expenses concerned are wholly or partly recoverable despite a failure by the agent to give a copy of the relevant agency agreement to the person within 48 hours after it was signed by or on behalf of the person.
(3) A court may not make an order described in subsection (2) unless satisfied that—
(a) the failure to give a copy of the agreement within the required time was occasioned by inadvertence or other cause beyond the control of the agent; and
(b) the commission or expenses that will be recoverable if the order is made are fair and reasonable in all the circumstances; and
(c) failure to make the order would be unjust.
(4) This section overrides the Illegal Contracts Act 1970.
Compare: Property, Stock and Business Agents Act 2002 s 55(1), (4), (5) (NSW)
(1) An agent must not enter into an agency agreement with a person for the sale of residential property unless the agent or a licensee on the agent’s behalf—
(a) has provided the person with a copy of the approved guide before the agreement is signed by or on behalf of the person; and
(b) has received a signed acknowledgment from the person that the person has been given the approved guide.
(2) In this section—
approved guide means a guide that—
(a) is about the sale of residential property:
(b) has been approved by the Authority for the purposes of this section.
(3) A contravention of this section does not affect the validity of the agency agreement.
Compare: Property, Stock and Business Agents Act 2002 s 56 (NSW)
(1) An agent is not entitled to any expenses from a client for or in connection with any real estate agency work carried out by the agent for the client in connection with a transaction unless the agency agreement under which the agent performs that work contains a statement that—
(a) identifies the source of all rebates, discounts, or commissions that the agent will or may receive in respect of those expenses; and
(b) specifies the estimated amount of those rebates, discounts, or commissions (to the extent that the amount can reasonably be estimated).
(2) This section does not limit the liability of any person under the Secret Commissions Act 1910.
Compare: Property, Stock and Business Agents Act 2002 s 57(1) (NSW)
Regulations under section 155 may provide for any 1 or more of the following:
(a) the form of agency agreements:
(b) the terms, conditions, and other provisions that an agency agreement must or must not contain:
(c) 1 or more standard forms of agency agreement:
(d) the manner and form in which disclosure is to be made under section 126.
Compare: Property, Stock and Business Agents Act 2002 s 55(2) (NSW)
(1) A client who is party to a sole agency agreement with an agent may, by 5 pm on the first working day after the day on which a copy of the agreement is given to the client under section 124(1)(c), cancel the agreement by written notice to the agent.
(2) A notice under subsection (1) may be served by fax or email.
(1) Any party to a sole agency agreement may, at any time after the expiry of the period of 90 days after the agreement is signed, cancel the agreement by written notice to the other party or parties.
(2) For the purposes of subsection (1), a sole agency agreement is signed when it is signed by or on behalf of the client or, if there is more than 1 client, when the agreement is signed by the last client.
(3) A notice under subsection (1) may be served by fax or email.
(1) As soon as practicable after a person signs a document specified in subsection (2) and gives that document to a licensee carrying out real estate agency work in connection with the document, the licensee must give the person an accurate copy of the document.
(2) The documents are as follows:
(a) an offer to purchase or lease any land:
(b) an agreement for the sale and purchase of any land:
(c) an agreement to lease:
(d) a lease.
Compare: 1976 No 9 s 65
(1) An agent who carries out real estate agency work in respect of the sale of residential property must ensure that subsection (2) is complied with before the agent, or a licensee on the agent’s behalf, gives a person—
(a) a copy of an offer to buy or sell the property; or
(b) a copy of a proposed agreement for the sale and purchase of the property.
(2) The agent or a licensee on the agent’s behalf must—
(a) have provided the person with a copy of the approved guide; and
(b) received a signed acknowledgment from the person that the client has been given the approved guide.
(3) In this section—
approved guide means a guide that—
(a) is about the sale of residential property:
(b) has been approved by the Authority for the purposes of this section.
(4) A contravention of this section does not affect the validity of any contract.
(1) No licensee may, without the consent of the client for whom he or she carries out real estate agency work in respect of a transaction, directly or indirectly, whether by himself or herself or through any partner, sub-agent, or nominee, acquire the land or business to which the transaction relates or any legal or beneficial interest in that land or business.
(2) No licensee may, without the consent of the client, carry out or continue to carry out any agency work in respect of a transaction if the licensee knows or should know that the transaction will, or is likely to, result in a person related to the licensee acquiring the land or business to which the transaction relates or any legal or beneficial interest in that land or business.
(3) The client’s consent is effective only if—
(a) given in the prescribed form; and
(b) the client is provided with a valuation in accordance with section 133.
(4) The client may cancel any contract—
(a) made in contravention of subsection (1); or
(b) brought about by agency work carried out in contravention of subsection (2).
(5) No commission is payable in respect of any contract of the kind described in subsection (4), regardless of whether the client cancels the contract.
(6) The client may recover any commission paid in respect of any contract of the kind described in subsection (4) as a debt.
(7) For the purposes of this section, a person who is the client of an agent in respect of a transaction is also the client of any branch manager or salesperson whose work enables the agent to carry out real estate agency work for that client.
(1) For the purposes of section 132(3), the licensee must give the client a valuation made, at the licensee’s expense, by an independent registered valuer of the land or business in question.
(2) The licensee must give the client the valuation either—
(a) before seeking the consent of the client; or
(b) with the agreement of the client, within 14 days after obtaining that consent.
(3) Every consent given under section 132 without the valuation being supplied to the client in accordance with subsection (2) is ineffective.
(4) Any contract to which the client is a party and to which the consent relates is voidable at the option of the client if—
(a) the client gives his or her consent in accordance with subsection (2)(b); and
(b) the valuation, when supplied, is greater than the valuation specified in the prescribed form of consent as the provisional valuation.
Compare: 1976 No 9 s 64
(1) A licensee who carries out real estate agency work in respect of a transaction must disclose in writing to every prospective party to the transaction whether or not the licensee, or any person related to the licensee, may benefit financially from the transaction.
(2) The licensee must make the disclosure required by subsection (1) before or at the time that the licensee provides the prospective party with any of the following documents that relate to the transaction:
(a) a copy of an offer:
(b) a copy of a proposed sale and purchase agreement:
(c) a copy of a proposed agreement to lease or a copy of a lease.
(3) For the purposes of this section, an agent does not benefit financially from a transaction merely because of any commission payable to the agent under an agency agreement in respect of the transaction.
(4) A contract entered into in contravention of this section may not be cancelled merely because of that contravention.
(1) In sections 132 to 134, licensee includes, in the case of an agent that is a company, every officer and shareholder of the company.
(2) For the purposes of sections 132 to 134, a person is related to a licensee if the person is—
(a) a partner of the licensee under a partnership agreement:
(b) an employee of the licensee:
(c) a branch manager or salesperson engaged by the licensee:
(d) the licensee’s spouse or civil union partner:
(e) the licensee’s de facto partner:
(f) a child, grandchild, brother, sister, nephew, or niece of the licensee or of any person referred to in paragraphs (d) or (e):
(g) any other child who is being, or is to be, cared for on a continuous basis by the licensee or any person referred to in paragraph (d) or (e):
(h) any parent of the licensee or of any person referred to in paragraph (d) or (e):
(i) an entity that has an interest in the licensee or an entity (not being an entity listed on the New Zealand Stock Exchange) in which the licensee has an interest.
Sections 137 to 141 apply to any auction for the sale of land or any interest in land, whether or not the person conducting the auction is a licensee or a registered auctioneer under the Auctioneers Act 1928.
(1) Before an auction is held, a record (the Bidders Record) must be made of the persons who will be entitled to bid at the auction.
(2) The Bidders Record must show, in respect of each bidder,—
(a) the relevant details of the person; and
(b) the identifying number allocated to the person for the purpose of identifying the person at the auction; and
(c) any other information required by regulations made under this Act.
(3) For the purposes of subsection (2)(a), the relevant details of a person are—
(a) the persons name and address and the reference to 1 or more documents by which the identity of that person is proved; and
(b) in the case of a person bidding on behalf of another person, the name and address of that other person and the reference to 1 or more documents by which the identity of that person is proved.
(4) The person engaged to conduct the auction must compile the Bidders Record required by this section for the auction unless some other person engaged to act in respect of the sale or acting on behalf of the person has made the Bidders Record for the auction.
(5) The person engaged to conduct the auction must keep the Bidders Record for at least 3 years and must keep all the Bidders Records made by the person together in the form of a register of Bidders Records.
(6) Regulations made under this Act may make provision for, or with respect to,—
(a) conferring an entitlement on a seller of land to inspect the Bidders Record for the sale of the land; and
(b) the manner and form in which a Bidders Record is to be made and kept; and
(c) requiring other information to be included in the Bidders Record.
Compare: Property, Stock and Business Agents Act 2002 s 68 (NSW)
(1) No person may enter a bidder’s name and address in a Bidders Record unless both the bidder’s name and address details are established by the production to the person of—
(a) 1 or more documents proving the identity of the bidder; and
(b) in the case of the details of a person on whose behalf a bidder is to bid, a letter of authority to bid on the person’s behalf specifying the person’s name and address and the reference to 1 or more documents by which the identity of that person is proved.
(2) The only documents that may be used to prove the identity of a person for the purposes of this section are—
(a) a driver licence that is issued or has effect under the Land Transport Act 1998; or
(b) a New Zealand passport; or
(c) an overseas passport; or
(d) any other proof of identity that may be prescribed by regulations.
(3) No person may enter the relevant details of a bidder in a Bidders Record if the person knows, or has reasonable cause to suspect, that the details are false in a material particular.
Compare: Property, Stock and Business Agents Act 2002 s 69 (NSW)
(1) A person who compiles a Bidders Record, and any licencee or auctioneer to whom the contents of a Bidders Record are disclosed under this Act, must not—
(a) divulge any information that the Bidders Record contains except as authorised or required by this Act; and
(b) use the Bidders Record or the information that it contains for any purpose not authorised by this Act.
(2) This section does not prevent the divulging of information in accordance with a requirement imposed by or under this Act.
Compare: Property, Stock and Business Agents Act 2002 s 70 (NSW)
(1) A person (person A) who conducts an auction must not take a bid from a person (person B) unless—
(a) the relevant details of person B have been entered before the bid is taken in a Bidders Record made in respect of the auction in accordance with section 137, and person A is in possession of that record when the bid is taken; and
(b) person B identifies himself or herself at the auction by displaying an identifying number allocated to person B for the purposes of the auction and recorded in the Bidders Record as the identifying number allocated to person B.
(2) If person A refuses to take a bid from person B because of this section, person A is not liable for that refusal.
Compare: Property, Stock and Business Agents Act 2002 s 67(1), (2) (NSW)
The person who conducts the auction must either,—
(a) before the commencement of the auction, provide all bidders with sufficient information to enable each bidder to identify any bid that is made by or on behalf of the vendor as a vendor’s bid; or
(b) identify any bid made by or on behalf of the vendor as a vendor’s bid as soon as the bid is made.
Every person commits an offence who knowingly contravenes any provisions of this Act or any regulations made under this Act.
Every person who commits an offence against this Act or against any regulations made under this Act for which no penalty is provided elsewhere than in this section is liable,—
(a) in the case of an individual, to a fine not exceeding $40,000; or
(b) in the case of a company or body corporate, to a fine not exceeding $100,000.
(1) In addition to any fine that may be imposed, a person who commits an offence under section 146 or 147 is liable to forfeit to the Crown 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 agent, branch manager, or salesperson.
(2) All money forfeited to the Crown under subsection (1) is recoverable at the suit of the Crown in any court of competent jurisdiction, or may be assessed by the court by which the defendant is convicted, and be recoverable as a fine.
Compare: 1976 No 9 s 16(2), (3)
Every offence against this Act or regulations made under this Act is punishable on summary conviction.
A person commits an offence if the person carries out any real estate agency work without being licensed to do so under this Act or exempt from the requirement to be licensed.
A person commits an offence who holds out that any person (including the person himself or herself) who is neither licensed under this Act or exempt from the requirement to be licensed, is an agent, branch manager, or salesperson.
A person commits an offence who employs or contracts, or continues to employ or contract, as an agent, branch manager, or salesperson a person—
(a) who is not licensed or exempt from the requirement to be licensed under this Act; or
(b) whose licence has been suspended under this Act; or
(c) whose licence has been cancelled under this Act; or
(d) who is prohibited from working for an agent in a real estate business in accordance with an order made under section 107.
(1) A person commits an offence who, for the purposes of any application for a licence or for renewal of a licence under this Act,—
(a) supplies to the Registrar any false or misleading information, knowing it to be false or misleading; or
(b) supplies to the Registrar any false or misleading information.
(2) It is a defence to a charge under subsection (1)(b) that the person to whom the charge relates did not know that he or she was providing false or misleading information and had exercised all reasonable care and due diligence to ensure that the information provided was not false or misleading.
A licensee or applicant for a licence commits an offence who, without reasonable excuse, fails to notify the Registrar of any change in circumstances as required by section 66.
A person commits an offence who fails to disclose information in accordance with section 134.
(1) A person commits an offence who renders an account purporting to be an account for any money received by him or her in his or her capacity as a licensee, knowing the account to be false in a material particular.
(2) Every person who commits an offence against this section is liable,—
(a) in the case of an individual, to imprisonment for a term not exceeding 2 years or a fine not exceeding $40,000, or both; or
(b) in the case of a company or body corporate, to a fine not exceeding $100,000.
A person commits an offence who—
(a) resists, obstructs, deceives, or attempts to deceive any person who is exercising or attempting to exercise any power or perform any function under this Act; or
(b) fails to comply with any requirement under this Act; or
(c) gives to any person who is exercising or attempting to exercise any power or perform any function under this Act any particulars knowing those particulars are false or misleading in any material respect.
(1) Any notice or other document required or authorised by this Act to be given to or served on any person, is sufficiently given or served if—
(a) it is delivered to that person; or
(b) it is left at that person’s usual or last known place of abode or business or at an address specified for that purpose in any document received from that person; or
(c) it is posted in a letter addressed to that person by name at that place of abode or business or address.
(2) Any notice or other document required or authorised by this Act to be given to or served on the Authority is sufficiently given or served if—
(a) it is delivered to the Registrar; or
(b) it is left at the office of the Authority; or
(c) it is posted in a letter addressed to the Authority at the office of the Authority.
(3) If any notice or other document is sent by post, it is, unless the contrary is shown, treated to have been given 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 is sufficient to prove that the letter was properly addressed and posted.
(4) This section does not apply to notices or other documents served or given in any proceedings in any court.
The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:
(a) prescribing the qualifications necessary before a person is entitled to be licenced as an agent, branch manager, or salesperson:
(b) prescribing countries, States, or territories whose laws prohibiting any person from acting as an agent, branch manager, or salesperson are recognised:
(c) prescribing the form, manner, or content of applications, notices, or any other documentation or information required under this Act:
(d) prescribing the particulars to be entered in the register:
(e) prescribing changes of circumstance that must be notified to the Registrar:
(f) prescribing the manner and form in which complaints may be made to the Authority about licensees or former licensees:
(g) providing for an audit from time to time of the trust accounts of all agents, and the manner in which and the persons or class of persons by whom that audit must be conducted, and for a report of the result of the audit:
(h) prescribing the form in which a client’s consent must be given for the purposes of section 132:
(i) prescribing any form of proof of identity that is acceptable for the purposes of section 138:
(j) prescribing requirements relating to auctions:
(k) prescribing offences against any regulations made under this Act:
(l) providing for exemptions under section 11:
(m) prescribing the maximum amount of compensation payable under section 107(2)(g):
(n) prescribing periods of time for the purposes of giving notice, making submissions, and other matters:
(o) prescribing the manner for giving notice or service under this Act:
(p) providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
The Real Estate Agents Act 1976 (1976 No 9) is repealed.
On the commencement of this Act, the assets and liabilities of the Real Estate Agents Licensing Board constituted under section 4 of the Real Estate Agents Act 1976 vest in the Real Estate Institute of New Zealand Incorporated (REINZ).
Despite the repeal of the Real Estate Agents Act 1976 by section 156, the following provisions of that Act continue to be in force until the date on which the Real Estate Agents Fidelity Guarantee Fund is wound up:
(a) sections 71 to 75(1):
(b) section 79 to 87:
(c) the Schedule.
Compare: 2006 No 1 s 363
(1) No person has any claim against the Real Estate Agents Fidelity Guarantee Fund in relation to any theft committed on or after the date on which the repeal of the Real Estate Agents Act 1976 takes effect.
(2) No person has any claim against the Real Estate Agents Fidelity Guarantee Fund in respect of any theft committed before the date on which the repeal of the Real Estate Agents Act 1976 takes effect unless that person has, on or before the last date for submitting claims, given notice of the claim in writing to the Council of REINZ or to the committee of management appointed under section 74(1) of the Real Estate Agents Act 1976.
(3) The last date for submitting a claim is the last day of the period of 12 months beginning with the date on which a report under section 161(1) is submitted by the Council of REINZ to the Minister.
Compare: 2006 No 1 s 365
(1) The Council of REINZ must give public notice of the last date for submitting any claim against the Real Estate Agents Fidelity Guarantee Fund in respect of any theft committed before the date on which the repeal of the Real Estate Agents Act 1976 takes effect.
(2) The public notice under subsection (1) must be given at least twice before that last date, the first such notice being given not less than 3 months before that date and the second being given not more than 1 month and not less than 14 days before that date.
Compare: 2006 No 1 s 366
(1) If the Council of REINZ forms the opinion that all claims against the Real Estate Agents Fidelity Guarantee Fund that it is aware of have been received and fully dealt with, it must submit a report to the Minister stating that opinion and outlining the reasons for that opinion.
(2) If, in the period of 12 months beginning with the date on which the Council of REINZ submits a report under subsection (1), further claims against the Real Estate Agents Fidelity Guarantee Fund are submitted to the Council, it must receive, and deal with, those claims.
(3) After the expiry of the period of 12 months referred to in subsection (2), the Council of REINZ must decline to receive any further claims against the Real Estate Agents Fidelity Guarantee Fund.
(4) Subsection (5) applies if—
(a) no further claims against the Real Estate Agents Fidelity Guarantee Fund are received in the period referred to in subsection (2); or
(b) the Council of REINZ has fully dealt with any further claims against the Real Estate Agents Fidelity Guarantee Fund that were received in the period referred to in subsection (2).
(5) The Council of REINZ must report to the Minister on the application of this subsection and submit to the Minister its final report and final audited accounts in respect of the Real Estate Agents Fidelity Guarantee Fund.
(6) The Minister may, on receiving that report and those accounts, recommend to the Governor-General the making of an Order in Council under subsection (7).
(7) The Governor-General may, by Order in Council, declare that the Real Estate Agents Fidelity Guarantee Fund is wound up on a date specified in the order.
Compare: 2006 No 1 s 367
On the date specified in the Order in Council made under section 161(7) on which the Real Estate Agents Fidelity Guarantee Fund is wound up, any remaining assets of the fund continue to be the property of REINZ but cease to be held in trust for the purposes stated in section 81 of the Real Estate Agents Act 1976.
(1) For the purposes of sections 164 to 169, the Real Estate Agents Licensing Board constituted under section 4 of the Real Estate Agents Act 1976, the Registrar of Real Estate Agents appointed under section 35 of that Act, and every Regional Disciplinary Committee established pursuant to the rules of the Real Estate Institute under section 70 of that Act continue in office and continue to have all the powers necessary to fulfil those purposes.
(2) If there is a vacancy in any of the bodies or in the office of Registrar referred to in subsection (1), the Minister may appoint any person the Minister considers appropriate to fill the vacancy.
(1) Every person is deemed to hold a licence as an agent under this Act who, immediately before the commencement of this Act, holds a current agent’s licence under the Real Estate Agents Act 1976.
(2) The licence that the person is deemed to hold under subsection (1) continues in force, until the expiration of the year in respect of which the licence was issued under the Real Estate Agents Act 1976 and may be renewed under this Act.
(3) Every person is deemed to hold a licence as an agent under this Act if, immediately before the commencement of this Act, the person is entitled to apply for a renewal of his or her or its agent’s licence under the Real Estate Agents Act 1976 and, on the commencement of this Act, the person’s application for that renewal is pending before the Real Estate Agents Licensing Board.
(4) The licence that the person is deemed to hold under subsection (3) continues in force until the Authority has been notified by the Real Estate Agents Licensing Board under section 167(2) of the Board’s determination and has taken any appropriate action on that advice.
(5) This section does not limit the provisions of this Act that authorise the cancellation of a licence or the suspension of a licensee.
(1) Every person is deemed to hold a licence as a salesperson or as a branch manager under this Act who, on the commencement of this Act, holds a current certificate of approval as a salesperson or as a branch manager under the Real Estate Agents Act 1976.
(2) The licence that the person is deemed to hold under subsection (1) continues in force until the expiry of the year in respect of which the licence was issued under the Real Estate Agents Act 1976 and may be renewed under this Act.
(3) Every person is deemed to hold a licence as a salesperson or as branch manager under this Act if, immediately before the commencement of this Act, the person is entitled to apply for a renewal of his or her certificate of approval under the Real Estate Agents Act 1976 and, on the commencement of this Act, the person’s application for that renewal is pending before the Real Estate Agents Licensing Board.
(4) The licence that the person is deemed to hold under subsection (3) continues in force until the Authority has been notified by the Real Estate Agents Licensing Board under section 167(2) of the Board’s determination and has taken any appropriate action on that advice.
(5) This section does not limit the provisions of this Act that authorise the cancellation of a licence or the suspension of a licensee.
(6) A person who, by this section, is deemed to hold a licence and who continues to be employed or engaged by the same agent retains the status that the person had before the commencement of this Act, whether as employee or as independent contractor, until that status is altered by agreement of the parties.
(1) Every permit issued under section 34 of the Real Estate Agents Act 1976 that is in effect immediately before the commencement of this Act continues in effect according to its tenor despite any provision of this Act (other than this section).
(2) The Authority has, and may exercise, the power conferred on the Real Estate Licensing Board by section 34(5) of the Real Estate Agents Act 1976.
(3) Every permit referred to in subsection (1), unless sooner expired or revoked, expires on the date that is 2 years after the commencement of this Act.
(1) Every application for a licence or a certificate of approval, or for a renewal of a licence or a certificate of approval, made under the Real Estate Agents Act 1976 that is, immediately before the commencement of this Act, pending before the Real Estate Agents Licensing Board must be considered and determined as if this Act (other than this section) had not been enacted.
(2) After determining an application of the kind referred to in subsection (1), the Real Estate Agents Licensing Board must promptly advise the Authority of the determination.
(3) If the Authority receives advice under subsection (2) that the Real Estate Agents Licensing Board has issued an agent’s licence to a person or granted an application for the renewal of such a licence, the Authority must issue a licence as an agent to the person under this Act.
(4) If the Authority receives advice under subsection (2) that the Real Estate Agents Licensing Board has issued a certificate of approval as a salesperson or branch manager to a person or granted an application for the renewal of such a certificate, the Authority must issue a licence as a salesperson or as branch manager to the person under this Act.
(5) The Real Estate Agents Licensing Board and any person holding office as Registrar under the Real Estate Agents Act 1976 continue to have all the powers under that Act that are necessary for performing their duties under this section.
(1) All applications under any of sections 94, 95, and 99 of the Real Estate Agents Act 1976, every inquiry under section 97 of that Act, and every complaint laid under section 102 of that Act with a Regional Disciplinary Committee, that have been commenced before the commencement of this section and that have not been completed before that commencement are to be continued and completed as if that Act had not been repealed.
(2) If the Real Estate Agents Licensing Board, in completing any application referred to in subsection (1), determines that the licence of a licensee is to be cancelled or that a licensee is to be suspended, the Board must promptly notify the Authority of that determination and the Authority must give effect to the determination by taking the appropriate action under this Act.
(3) Subsection (1) is subject to subsection (2).
(1) The Complaints Assessment Committee may consider a complaint, and the Tribunal may hear a charge, against a licensee or a former licensee in respect of conduct alleged to have occurred before the commencement of this section but only if the Committee or the Tribunal is satisfied that,—
(a) at the time of the occurrence of the conduct, the licensee or former licensee was licensed or approved under the Real Estate Agents Act 1976 and could have been complained about or charged under that Act in respect of that conduct; and
(b) the licensee or former licensee has not been dealt with under the Real Estate Agents Act 1976 in respect of that conduct.
(2) If, after investigating a complaint or hearing a charge of the kind referred to in subsection (1), the Committee or Tribunal finds the licensee or former licensee guilty of unacceptable conduct or of misconduct in respect of conduct that occurred before the commencement of this section, the Committee or the Tribunal may not make, in respect of that person and in respect of that conduct, any order in the nature of a penalty that could not have been made against that person at the time when the conduct occurred.
The enactments listed in Schedule 2 are amended in the manner set out in that schedule.
Schedule 1 | s 101 |
Each member of the Tribunal must, before entering on the performance of his or her functions as a member of the Tribunal, swear or affirm before a Judge of the High Court that he or she will faithfully and impartially perform his or her duties as a member of the Tribunal.
(1) Every member of the Tribunal is to be appointed for a term not exceeding 3 years.
(2) A member of the Tribunal is eligible for reappointment from time to time.
(3) Where the term of office of a member of the Tribunal has expired, that member, unless he or she sooner dies or vacates office under clause 3, continues to hold office, by virtue of the appointment for the term that has expired, until—
(a) that member is reappointed; or
(b) a successor to that member is appointed; or
(c) that member is informed in writing by the Minister that he or she is not to be reappointed and is not to hold office until a successor is appointed.
(1) A member of the Tribunal may at any time be removed from office by the Governor-General for incapacity affecting performance of duty, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General.
(2) A member of the Tribunal is deemed to have vacated his or her office if he or she is adjudged bankrupt under the Insolvency Act 2006.
(3) A member of the Tribunal may at any time resign his or her office by giving notice in writing to the Minister.
The chair and other members of the Tribunal are to be paid, out of public money, remuneration by way of fees, salary, or allowances and travelling allowances in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act apply accordingly as if the chair or any other member were a member of a statutory board within the meaning of that Act.
No person holding office as a member of the Tribunal is deemed by reason of his or her holding of that office to be employed in the Government service for the purposes of the Government Superannuation Fund Act 1956 or in the State services for the purposes of the State Sector Act 1988.
(1) For the purposes of any matter before the Tribunal, the Tribunal may, of its own initiative, issue a summons to any person requiring that person to attend before the Tribunal and give evidence.
(2) The summons must be in the prescribed form, and may require the person to produce before the Tribunal any books, papers, documents, records, or things in that person’s possession or under that person’s control in any way relating to the matter.
(3) The power to issue a summons under this clause may be exercised by the Tribunal or by any officer of the Tribunal purporting to act by the direction or with the authority of the Tribunal.
(1) Every person attending the Tribunal on a summons, and every other person giving evidence before the Tribunal, is entitled, subject to subclause (2), to be paid, by the party calling that person, witnesses’ fees, allowances, and travelling expenses according to the scales for the time being prescribed by regulations made under the Summary Proceedings Act 1957, and those regulations apply accordingly.
(2) The Tribunal may disallow the whole or any part of any sum payable under subclause (1).
(1) The Tribunal may take evidence on oath and, for that purpose, the Tribunal or any other person acting under the express or implied direction of the Tribunal may administer the oath.
(2) On any indictment for perjury it is sufficient to prove that the oath was administered in accordance with subclause (1).
Every person has the same privileges and immunities as witnesses have in a court of law in relation to—
(a) the giving of information to the Tribunal; and
(b) the giving of evidence to, or the answering of questions put by, the Tribunal; and
(c) the production of papers, documents, records, or things to the Tribunal.
Every counsel appearing before the Tribunal has the same privileges and immunities as counsel in a court of law.
(1) Neither the Tribunal, nor any member, officer, or agent of the Tribunal, is under any criminal or civil liability in respect of—
(a) any act done or omitted to be done in the course of performing any of their functions or duties, or exercising any powers under this Act;
(b) any words spoken or written at, for the purposes of, the hearing or any inquiry or other proceedings under this Act; or
(c) anything contained in any notice given under this Act.
(2) Subclause (1) does not apply if the Tribunal or the person concerned has acted in bad faith.
The Tribunal must have a seal, which must be judicially noticed in all courts and for all purposes.
Schedule 2 | s 170 |
Section 13: repeal.
Part 1 of Schedule 1: insert in its appropriate alphabetical order: “Real Estate Agents Authority”
.
Section 6(4): omit “Real Estate Agents Act 1976”
and substitute “Real Estate Agents Act 2007”
.
The definition of real estate agent in section 2(1): repeal and substitute:
“real estate agent has the same meaning as the definition of agent in section 4 of the Real Estate Agents Act 2007.”
Paragraph (b) of the definition of real estate transaction in section 2(1): omit “Real Estate Agents Act 1976”
and substitute “Real Estate Agents Act 2007”
.
Section 36(2): omit “real estate agent who holds a licence in force under the Real Estate Agents Act 1976”
and substitute “person who holds a current licence under the Real Estate Agents Act 2007”
.
Section 36: insert the following subsection after subsection (2):
“(2A) However, subsection (2) does not apply to a person who, under the Real Estate Agents Act 2007, holds a licence as a salesperson unless the person has had at least 6 months experience as such as a licensee.”
Section 45A(1): omit “as a real estate agent under the Real Estate Agents Act 1976”
and substitute “as an agent under the Real Estate Agents Act 2007”
.
Section 45A(7): omit “the Real Estate Agents Act 1976”
and substituted “the Real Estate Agents Act 2007”
.
Part 1 of Schedule 2: insert the following item in its appropriate alphabetical order:
“Real Estate Agents Act 2007 sections 62 to 69”.
Part 2 of Schedule 1: omit the item relating to the Real Estate Agents Act 1976.
Section 5(1)(h): omit “any real estate agent within the meaning of the Real Estate Agents Act 1976”
and substitute “any agent within the meaning of the Real Estate Agents Act 2007”
.
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