REAL ESTATE AGENTS BILL: DEPARTMENTAL REPORT. Part One

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1 REAL ESTATE AGENTS BILL: DEPARTMENTAL REPORT Part One 1

2 14 April 2008 Lynne Pillay MP Chair Justice and Electoral Committee PARLIAMENT BUILDINGS REAL ESTATE AGENTS BILL: DEPARTMENT REPORT PART ONE Please find attached part one of the departmental report on the Real Estate Agents Bill. This part deals with: General issues. Part 3 of the Bill - Licensing. Part 5 of the Bill - Duties relating to real estate agency work. We also consider some sections of Part 2 of the Bill relating to the Registrar, as these provide context for Part 3 of the Bill. The Associate Minister of Justice is seeking Cabinet decisions on a variety of issues. We will provide part two of the departmental report once those decisions have been made. Where there are gaps in this part of our report, for example in reporting on provisions on the Registrar under Licensing (Part 3), we will report on these in part 2 of our report. We have also provided, as appendices, two tables. Appendix 1 summarises our recommendations. Appendix 2 lists the issues that the Committee has specifically sought comment on, and identifies where in the report these are discussed. The report has been prepared by the Ministry of Justice. Paul Clarke Acting Manager Commercial, Property and Regulatory Team Public Law Ministry of Justice 2

3 PART ONE GENERAL ISSUES 1. This part of the departmental report discusses: the co-regulatory model recommended by the Real Estate Institute of New Zealand (REINZ); membership of REINZ (including the collection of real estate industry statistics); the framework for prescribing educational qualifications; and the impact of the Trans-Tasman Mutual Recognition Arrangement. Co-regulatory model Background 2. Under the Real Estate Agents Act 1976 (the 1976 Act), the REINZ provides member services and performs certain regulatory functions. Its regulatory functions include: a statutory right to be heard in the licensing process; prescribing the examinations to be passed by licensed real estate agents, branch managers and salespeople (the subject-matter and syllabus of which must be approved by the Minister); prescribing a code of ethics; operating the first tier of the complaints and disciplinary regime; auditing agents trust accounts; and administers the Fidelity Guarantee Fund. 3. Licensed real estate agents are required to be members of the REINZ. 4. The Real Estate Agents Bill (the Bill) does not provide a statutory role for the REINZ. Rather, the Real Estate Agents Authority (the Authority) will perform the majority of the regulatory functions. The REINZ Industry Training Organisation (REINZ ITO) will continue to perform functions in relation to developing educational standards. This model separates out the representative function from the regulatory functions submissions specifically commented on the role of the REINZ under the Bill. 97% of these were from the industry (REINZ included) and opposed the Bill s approach. Most of these considered that the REINZ should continue to perform regulatory functions under the Bill, particularly in relation to setting professional standards, developing practice rules and producing approved guides. They considered that the REINZ should be represented on the Authority, the Complaints Assessment Committees and the Disciplinary Tribunal. 3

4 6. Many submitters currently in the real estate industry value the role that the REINZ performs. They express concern that an Authority will not have real estate industry experience and will not be able to perform its functions adequately. These submissions are consistent with the views expressed by the REINZ submitters (or 1% of those commenting on this issue) support the Bill s approach. John Bradley, Principal Officer of Totally Kiwi Real Estate, notes that the REINZ has had ample opportunity to improve the regulation of the industry but only sees value in retaining the status quo. Gordon Meyer, Tuatara Realty Ltd and a former professional standards manager with the REINZ, considers that the REINZ has abdicated its regulatory responsibilities under the 1976 Act. Trade Me Ltd submits that, in its experience, the REINZ is conflicted by its dual motivations of regulation and advocacy. 8. Deb Leask, a consumer, submits that the real estate industry needs an independent body to protect the general public and honest real estate agents. Phil Strong, owner of the Go Gecko Master Franchise in New Zealand, submits that he believes that REINZ is out of date and out of touch with the demands of the marketplace. Suzanne Chetwin, CEO of Consumer NZ, supports the Government s proposals and submits that an independent body overseeing the real estate industry has long been overdue. The large real estate companies: Harcourts; PGG Wrightson; and, Barfoot & Thompson supported the general approach taken in the Bill and did not submit proposals advocating co-regulation. The REINZ proposal 9. The REINZ suggests a co-regulatory model for the real estate industry. Under this model, regulatory functions would be split between REINZ and the Authority. In particular, it considers that: The Authority should focus on licensing, registration, and the complaints and disciplinary process. The REINZ considers that this would ensure greater transparency and independence for the regulatory regime. The REINZ would develop practice rules, codes of conduct, and prescribe educational qualifications (including compulsory continuing education) and provide consumer information. Rules and regulations would be subject to ministerial approval. It considers that the REINZ is best placed to fulfil these functions because it has the required industry knowledge, experience and reputation incentives. 10. To facilitate the co-regulatory model, the REINZ considers there should continue to be compulsory membership of the REINZ for all licensed real estate agents. 11. The REINZ has referred to a range of precedents for co-regulation in occupational legislation, which it claims is directly comparable to the real estate industry. Most often they make a comparison with the Lawyers and Conveyancers Act It also refers to legislation regulating registered 4

5 architects and chartered professional engineers, and to proposed legislation for financial advisers. 12. Co-regulatory models appear to work successfully for regulating professions. The features and nature of professions, exemplified by professions such as doctors and lawyers, include but are not confined to: lengthy academic education involving advanced learning; high barriers to entry which prevent those without a high level of credentials and qualifications from practicing; significant status gained from membership; public trust in and recognition of the general expertise required; significant value of membership with a substantial loss if expelled from the profession; low turnover of members; restrictions on employment in other areas, eg. lawyers can only be engaged as lawyers; 13. The real estate industry is characterised by: low barriers to entry; minimal qualification requirements (salespeople, comprising 85% of industry participants, complete a 2 week sales course); high staff turnover leading to many new inexperienced participants; commission only pay structure for salespersons; significant concerns about the conduct of some participants. 14. Real estate agency work is primarily a sales business involving the selling of residential or commercial property. We do not consider it to be a profession. Rather, it demonstrates common features with, and is more akin to, other occupations such as motor vehicle sales, builders, and immigration advisers. None of these are regulated under a co-regulatory model. 15. There are also concerns that the REINZ has not sufficiently distinguished between its regulatory and representative functions. For example, its current code of ethics, in place since 1999, has been criticised for doing more to protect agents than the public (David Russell, May 2007). REINZ submitted a new code of ethics to the Minister for his approval on 29 February One of the main criticisms of the current regulatory regime is that it does not have proper regard for consumer rights. REINZ s proposal to maintain the status quo and allow an industry representative body to have responsibility for a code of professional conduct and client care, is incompatible with its role as an advocate for the interests of its industry members. 17. It is appropriate that an Authority, independent from the industry, takes the lead in setting standards of conduct and client care. This will provide 5

6 consumers with the confidence that the standards that industry members are being judged against are fair, equitable and independent. 18. The REINZ s proposal that they should continue to set compulsory continuing education requirements is not accepted. It is imperative that the Authority as the industry oversight body has the tools available to it that will allow it to actively increase standards in the industry. The ability of the Authority to prescribe compulsory continuing education requirements is therefore essential. 19. It is equally essential that consumer information should be provided from an independent source. In order to increase consumer confidence in the industry, it is necessary to provide a range of consumer information that will increase consumer understanding of real estate industry procedures and transactions. This can only be done with validity by an independent body. 20. We therefore do not consider the real estate industry an appropriate candidate for co-regulation. Membership of the REINZ 21. The Bill does not require licensees to be members of the REINZ. This is in contrast to the 1976 Act, which requires all licensed real estate agents to belong to the REINZ. Branch managers and salespersons are not required to be members of the REINZ, although many choose to do so. 22. Only REINZ full members are allocated full voting rights. This means that while salespersons may be able to vote on some motions and issues they have no voting rights when it comes to electing the officers of REINZ submissions specifically commented on this issue. 95% of these opposed the Bill s approach. They consider that requiring membership of the REINZ provides a governing body for the industry that will safeguard the interests of consumers. Many industry submitters refer to the REINZ s role in collating real estate statistics. The REINZ considers that compulsory membership would support its proposed co-regulatory model submissions specifically support the Bill s approach. John Bradley, Principal Officer of Totally Kiwi Real Estate, suggests a move to voluntary membership will encourage the REINZ to become more accountable to its members. The Commercial and Industrial Group has noted that the selfregulatory model based on compulsory membership of the REINZ is no longer appropriate. 25. Many submitters are concerned that there should continue to be a standard setting body for the real estate industry. They link compulsory membership of the REINZ with the ability to set industry standards. Under the Bill, the 6

7 independent Authority will set standards. The Bill removes the need to link this function to membership of the REINZ. 26. Compulsory membership of an industry body is not a feature of modern regulatory regimes. For example, when the Lawyers and Conveyancers Act 2006 comes into force, lawyers will no longer be required to belong to the New Zealand Law Society. Requiring licensees to be members of the REINZ is also likely to breach the New Zealand Bill of Rights Act 1990, which protects the right to freedom of association. 27. We consider it likely that many licensees will choose to continue to belong to the REINZ and that it will continue to exist. However, removing the requirement for compulsory membership also provides an opportunity for other representative groups to emerge. For example, a body like the Commercial and Industrial Group, which represents some licensees in the commercial and industrial sector, may increase its membership. Alternatively, the Property Institute of New Zealand might attract greater real estate sector membership. The Bill leaves open these possibilities. 28. Some concerns have been expressed about the continued ability of the REINZ to collate and publish real estate industry statistics. Each month the REINZ publishes an update on trends in the real estate market. More detailed information is available on subscription. 29. The REINZ obtains this information by requiring, as part of its Rules of Practice, members to supply such statistics as the REINZ Council requires (rule 14.9). Members provide statistics to the REINZ once sale and purchase agreements become unconditional. Statistics include sale price, number of bedrooms and length of time on the market. 30. We note that the REINZ is not the only source of real estate industry statistics. Quotable Value New Zealand (QV) receive statistical information from the 73 district councils. Councils are notified of property sales by solicitors after settlement. QV advise that this is, on average, 38 days after the sale and purchase agreement is signed. QV records information on every single property sale, including private sales, sales between related parties and sales to trusts. It notes that 30% of all sales are not accounted for in the REINZ statistics, although not all of those are market sales. The only information QV does not collect is the length of time a property is on the market. 31. QV emphasise that their statistics are independent, complete and statistically accurate. They always aggregate 3 months worth of data to accurately identify market trends. 32. We do not consider that removing compulsory membership will jeopardise the ability of the REINZ to collect and publish real estate industry statistics. If agents consider that such information is useful, they will continue to provide the statistics and, in return, seek the aggregated information from the REINZ. It is not necessary for the REINZ to receive information from every single agent for their reports to be statistically accurate. 7

8 33. As the REINZ will no longer have a statutory role there is no justification for compulsory membership. Compulsory membership would create an insurmountable barrier for any other organisation or body that may wish to offer services to members of the real estate industry. Education 34. Clause 155(a) of the Bill provides that regulations may be made prescribing the qualifications necessary before a person is entitled to be licensed as an agent, branch manager, or salesperson. Clause 19 provides that the Authority may, by notice in the Gazette, make practice rules requiring licensees to undertake continuing education. 35. The Bill does not specify how qualifications or continuing education will be developed submissions specifically comment on education. All of these were from the real estate industry and all echoed the REINZ submission that the role of the REINZ ITO was working well and should not be changed. 37. Many submitters commented that the REINZ ITO had made significant strides in recent times to raise educational standards within the industry. All submitters welcomed proposals within the bill for compulsory continuing education, with many pointing out that this was the key to ensuring that consumers got a better service. 38. The REINZ Industry Training Organisation (REINZ ITO) is currently recognised under the Industry Training Act 1992 as an Industry Training Organisation for the real estate industry. The REINZ ITO must meet criteria laid out in the Industry Training Act and make an application for ITO status to the Minister of Education. There is no limit on the numbers of organisations that may apply for ITO status for a particular industry, but consideration must be given to duplication of functions. 39. There is a minor diminution of the role of the Minister. Under the current Act the Minister approves the subject matter and syllabus of educational examinations. Under the Bill minimum standards of education will be set by regulation. 40. The REINZ ITO has responsibility for developing the content of various real estate educational courses. These range from a basic 2 week salesperson course to a 2 year Diploma in Real Estate which is the minimum requirement to become a real estate agent licence holder. 41. Although the REINZ ITO has been a separate body from the REINZ since 2004, it works in close association with the REINZ. REINZ ITO develops course content on the advice and for the approval of NZQA. The REINZ 8

9 ITO also works closely with the Tertiary Education Commission to gain access to funding and to ensure that it meets its requirements under the Industry Training Act. The REINZ ITO is not responsible for the delivery of training, which is provided either through workplace learning, polytechnics or private training establishments. 42. We consider that the Bill s approach is comparable to the 1976 Act, which also sets out procedures for prescribing and approving qualifications. The Bill must be read together with the Industry Training Act, which provides the framework for actually developing the detail of industry qualifications. The Bill envisages that the Authority will work closely with the REINZ ITO to ensure that appropriate qualifications are developed and prescribed. It does not seek to change the role of the REINZ ITO under the Industry Training Act. 43. As noted above, many submitters are concerned that this intention has not been clearly stated in the Bill. We do consider that there is scope for the Bill to provide greater clarity. In particular, it should specifically mention the role of the Industry Training Organisation for the time being recognised under the Industry Training Act We will make appropriate recommendations in the clause-by-clause analysis. Trans Tasman Mutual Recognition Agreement (TTRMA) and educational requirements 44. The TTMRA is an agreement between Australia and New Zealand aimed at reducing regulatory barriers to the movement of goods and services between the two countries. It means that if a person is registered to practise an occupation in New Zealand, they are entitled to register to practise an equivalent occupation in a participating Australian state or territory (and vice versa) without having to sit further tests or exams. An occupation is considered equivalent if the activities people carry out once registered are substantially the same. 45. Under the TTMRA, real estate agents, branch managers and salespeople licensed in Australian states can register as real estate agents, branch managers and salespeople in New Zealand. 45. Many submitters have expressed concern that people intending to enter the New Zealand real estate industry can complete a less comprehensive Australian qualification and register under the TTMRA, thereby circumventing New Zealand s entry requirements. 46. Some Australian states have extremely short periods of training and education requirements for agents and salespeople. New Zealanders can, and do, rely on the TTMRA to obtain an Australian qualification, register in Australia and then register under the TTMRA in New Zealand. As some 9

10 Australian course providers come over to provide short courses in New Zealand, this can all be done from New Zealand without needing to travel to Australia. 47. Between 1 April 2007 and 31 January 2008, 41 salespeople and 383 licensed real estate agents registered in New Zealand under the TTMRA. This is out of a total of salespeople and 1770 agents. 48. There is no evidence that agents or salespersons who registered under the TTRMA are more likely to have complaints made against them than those who have gained the New Zealand qualification. However, we do agree that there is scope for persons registering under the TTMRA to be required to complete compulsory education requirements where any gaps in an Australian qualification are identified. 49. The Bill provides that the Authority may make practice rules requiring licensees to undertake continuing education. This mechanism will ensure that those qualified in Australia maintain appropriate educational standards. We will make appropriate recommendations in the clause-by-clause analysis. 10

11 CLAUSE-BY-CLAUSE ANALYSIS Clause 32 Functions of Registrar 50. Clauses 32 sets out the functions of the Registrar, which are to: establish, keep and maintain the register; make licensing decisions; issue, cancel and suspend licences; and, provide administrative support for the Authority board. 51. The Registrar will be an employee of the Authority appointed by the Authority s chief executive. 52. The REINZ has suggested making substantial changes to provisions governing the Registrar and the Registrar s functions. They are in two alternative parts: proposals aimed at limiting the Registrar s powers to administrative functions by transferring part of the Registrar s powers to the Authority; or, where the powers of the Registrar remain as drafted, a suite of proposals aimed at inserting additional safeguards into the provisions relating to the Registrar and the Registrar s functions. 53. The REINZ s proposals are: Limiting the Registrar s power to administrative functions The Registrar should perform administrative functions only. The Authority should assume responsibility for any function requiring an exercise in discretion. The Registrar should be appointed by, and be accountable to, the Authority. An individual must prove to the Authority rather than the Registrar their entitlement to be licensed under clause 34. Determinations on the issue or grant of licences under clause 41 should be made by the Authority and the Authority s functions should be amended accordingly. The Authority should have the power to review licensing decisions made by the Registrar and hear objections to a licence application. Renewal applications should be subject to objections and hearings should be conducted by the Authority. Decisions to cancel licences for fraudulent representations under clause 53(f) should be made by the Authority. Any decision of the Registrar should be subject to review (appeal) by the Authority. 11

12 A range of other minor drafting amendments which reflect the proposed change to the Registrar s status and functions. Where the Registrar s functions remain as drafted in the Bill Authority must appoint the Registrar. Registrar must be accountable to the Authority. Authority should be satisfied that the Registrar has the necessary skills and experience to perform its functions. The Registrar must be a barrister or solicitor, and have experience in the real estate industry. The Registrar s powers to delegate under clause 33(1) should be amended to prevent the Registrar from delegating substantive powers or alternatively amended to ensure that the delegated person has the same qualifications and experience as the Registrar. Registrar s power to make determinations as to the existence of false or misleading representation should be removed and provision made requiring the determination to be made by the Authority or a court of law. 54. The REINZ further submits that the person responsible (Registrar or Authority) should have the necessary powers of investigation to make inquiries and receive information for the purposes of determining a licence application % of all submitters who commented on this clause opposed the functions of the Registrar as set out in the Bill. All were form submissions from within the industry and agreed with the REINZ s primary proposals for this clause. 56. The Government is considering its position on the nature of the Registrar s role and related provisions. We will provide the Committee with further advice on this clause. Officials will provide further advice on this clause Clause 33 Power of Registrar to delegate 57. Clause 33 gives the Registrar power to delegate any of the Registrar s functions to any person. The delegation must be in writing industry submitters specifically commented in support of the REINZ s proposals on this clause. 12

13 59. As noted above, the Government is considering its position on provisions relating to the Registrar. We will provide the Committee with further advice on this clause. PART 3 - LICENSING Clause 34 - Entitlement to licence 60. Clause 34 sets out objective criteria governing a person s entitlement to be licensed as an agent, branch manager, salesperson and a company or body corporate. The Bill changes the entry requirements relating to the experience required to obtain an agent s or a branch manager s licence. The experience requirement for an agent s licence is reduced from 3 years full-time within the last 5 years under the 1976 Act to 2 years within the last 10 years in the Bill. - 2 years in 10 experience requirement 61. The REINZ and the REINZ ITO submits that the 1976 Act s experience requirements of 3 years full-time experience in the last 5 years should be retained. Their position is supported by the vast majority of industry submitters who commented on this clause. 62. Submitters are concerned that an experience requirement of 2 years in 10 for agents is insufficient to guarantee a comprehensive knowledge of the real estate agency business. Other industry submitters point out that there is no requirement for the 2 years experience to be from full-time work, and that the 10 year period will allow someone to be out of the industry for 8 years and yet still qualify for an agent s licence. Most consider more recent experience is essential so that agents have current knowledge of industry practices. 63. On the other hand, John Bradley, Totally Kiwi Real Estate, considers that the current 3 years experience in the last 5 years requirement for agents is too restrictive, entrenches the status quo and prevents the introduction of new talent into the real estate industry. In his oral submission John Bradley stated it s ridiculous that the highest paid chief executive of a multi-national company would not be able to run a small real estate business in New Zealand because of the excessive experience requirements. 64. The Bill reduces the experience requirements because the current requirement presents too high a threshold. It creates a significant barrier to new business ownership and unduly discourages new business people from entering into the industry. The REINZ s proposal attempts to continue the status quo by only allowing those people who are prepared to work in a fulltime way at a non business owning level for a significant period of time to ultimately own and manage a business. 13

14 65. While some industry experience is necessary, we believe that the current requirements ensure a self-replicating business model within the industry. Maintaining a high experience threshold also does little to directly improve standards or to encourage the introduction of new innovative business practices that may ultimately benefit the consumer. 66. Experience does not guarantee competence or consumer protection. The provisions in clause 35 prohibiting people with specified convictions from entering the industry, including dishonesty offences and offences under the Fair Trading Act 1986, and the ability to require ongoing professional training, are more appropriate measures for reducing the risks posed to consumers. 67. We also consider the proposal that the experience requirements should relate to full-time work is too prescriptive. The 1976 Act requires the experience to be full-time. However, since 1976 there have been significant changes to working patterns, with many more people choosing to work parttime or in a more flexible way. The independent contractor model used in the real estate industry facilitates such flexibility. We do not consider that requiring the experience be full-time increases the protection for consumers. We therefore recommend no change. other issues 68. The REINZ also submits that a drafting change should be made to clarify that the experience requirement relates to experience of real estate agency work as defined in clause 4 of the Bill. They also propose a drafting change to the fit and proper person test for agents and branch managers, and salespersons, requiring regard to be given to the interests of the public. The REINZ ITO agrees with this proposal. 69. Harcourts raised concerns that Clause 34(c) would require only one director to be licensed as an agent. This, they submit, is insufficient to guarantee proper control by people with real estate industry experience over a large company. They also submit that this clause may lead to farming of licences, where unqualified persons who wish to manage a real estate company ensure that one person entitled to hold a licence is appointed as a patsy director. 70. We consider that the proposal to amend the fit and proper person by requiring regard to be given to the interests of the public is linked to the REINZ proposal to amend clause 35 (persons prohibited from being licensed) to provide the Authority with discretion to allow licensees to keep their licence where the licensee has been convicted of offences under the Fair Trading Act We consider that the Bill requires a more objective test, where the criteria taken into account are specified, than that found in the 1976 Act. 14

15 71. We agree with the REINZ s suggestion that the clause should refer to experience in real estate agency work, linked to clause The Bill is intended to relax restrictions on real estate company ownership and to reduce the barriers to new, innovative business people who may wish to enter the industry. Preserving the status quo entrenches the selfreplicating nature of the current business model and carries the danger of allowing the continuance of systemic consumer problems within the industry. 73. Sub-clause (3) refers to bodies corporate as well as companies. This is a drafting error and should be deleted. Amend clause 34 to ensure that the experience requirement relates to experience of real estate agency work, consistent with the definition of real estate agency work in clause 4 of the Bill. That clause 34(c) is amended to delete or a body corporate. Clause 35 - Persons prohibited from being licensed 74. Clause 35 sets out situations where a person is prohibited from being licensed. It improves licensing requirements by prohibiting people with an increased range of specified convictions for dishonesty offences and with certain convictions under the Fair Trading Act 1986 from being licensed. 75. This clause also provides that a person whose licence or certificate of approval has been cancelled within the previous 5 years under the 1976 Act, or the new Act, is prohibited from being licensed. 76. Sub-clause (1)(e) prohibits a person from being licensed under the law of a prescribed country. Clause 155(b) allows regulations to be made prescribing countries, States or territories whose laws prohibiting a person from being licensed will be recognised. 77. Sub-clause (2) provides that a person who is an undischarged bankrupt is not eligible to hold an agent s licence. 78. The REINZ submits that the list of prohibited convictions be extended to cover prior convictions for all serious crimes either in New Zealand or overseas. However, it also considers that convictions the Fair Trading Act 1986 should not automatically disqualify people from the licensing regime. It suggests that the Authority should have discretion to grant a licence if it is satisfied that a Fair Trading Act conviction does not reflect adversely on a person s ability to practice as a licensee. 15

16 79. The majority submitters who commented on this clause supported the REINZ s proposals. All of these were industry form submissions. 80. The New Zealand Law Society (NZLS) proposes amending this clause to specify that a lawyer, a conveyancing practitioner, and an incorporated firm within the meaning of the Lawyers and Conveyancers Act 2006 should be prohibited from holding a licence. 81. Extending the prohibition to all serious convictions is disproportionate. The particular convictions specified in clause 35 are directly relevant to a person s suitability to engage in real estate agency work. 82. The REINZ s proposal to include all serious convictions whether they have a relevance to work in the real estate industry or not, seems at odds with its proposal that the Authority should be able to exercise discretion in relation to Fair Trading Act convictions. Fair Trading Act convictions are far more likely to impact upon a person s suitability to practice as a licensee than many other convictions. 83. Clause 35 prohibits a person from being licensed if they have a conviction under specified sections of the Fair Trading Act These sections are: Section 14 False representations and other misleading conduct in relation to land. Section 17 - Offering gifts or prizes (with the intention of not providing them). Section 19 Bait advertising (no intention to supply goods or services). Section 20 Referral selling. Section 21 Demanding and accepting payment without intending to supply. Section 22 Misleading representations about certain business activities. Section 24 Pyramid selling schemes. 84. We consider it appropriate that convictions under these sections of the Fair Trading Act 1986, which relate specifically to conduct which has a direct connection to a person s likely performance of the functions and duties in the real estate industry, should prohibit that person from being licensed. However, the clause also refers to section 26 which relates to false trade description of imported goods. This is not relevant to the real estate industry and should be deleted 85. We agree with the NZLS that this clause should specify, for the avoidance of doubt, that lawyers, conveyancing practitioners and incorporated firms within the meaning of the Lawyers and The intention of the Lawyers and Conveyancers Act 2006 is that, even when they provide real estate services, lawyers and conveyancing practitioners will be regulated as such under the Lawyers and Conveyancers Act

17 86. Sub-clause 1(e), which prohibits a person from being licensed if they have been prohibited from being licensed under the law of a prescribed country, is not time bound. This is an error and the prohibition should be equal to the length of time provided for, for persons whose licence has been cancelled under the new Act - that is 5 years. Amend clause 35 to prohibit lawyers, conveyancing practitioners, and incorporated firms as defined by the Lawyers and Conveyancers Act 2006 from being licensed. Amend sub-clause (1)(b) to delete the reference to section 26 of the Fair Trading Act Amend sub-clause (1)(e) to include a time of 5 years from when the order or notice had been given prohibiting a person being licensed under the law of a prescribed country. Clause 36 Application for licence 87. Clause 36 requires applications for a licence to made in the prescribed form and accompanied by the prescribed fee. 88. REINZ submits that licence applications for branch mangers and salespersons should be made by agents. They also request an additional clause requiring that agents retain custody of their branch managers and salespersons licences. These requirements are found in the 1976 Act. 89. No other submitters commented on this clause. 90. The licensing regime in the 1976 Act is significantly different from that proposed in the Bill. The 1976 Act requires only the agent to be licensed, and the branch managers and salespersons to be certificated. 91. While there are requirements for salespersons to be properly supervised in clause 48, the proposed licensing regime in the Bill is an individual licensing regime requiring individual licence holders to take responsibility for their behaviour as a licensee. 92. Licensees are required to renew their licence each year on the anniversary of the date on which the Registrar enters their licence application on the register. It is therefore appropriate that each person makes their own application for a licence and holds their own licence. 17

18 No change. Clause 37 Applicants must advertise application 93. Clause 37 requires the applicant for a licence to advertise the application in a prescribed manner. 94. The REINZ submits that the Bill should set out publication requirements similar to those found in section 20 of the 1976 Act, which requires that a notice of application be advertised twice at an interval of not more than 14 days. No other submissions commented on this clause. 95. Advertising requirements will be specified by regulation under clause 155 of the Bill. Careful consideration will be given when drafting regulations to ensure that advertising requirements provide for the most effective and cost efficient way of advertising applications for a licence and allow for the possibility of using new technological options as they become available. It is not appropriate to specify advertising requirements in the Bill itself. No change. Clause 38 - objections to the issue of licence 96. Clause 38 allows a person to object to a licence application within the prescribed time and in the prescribed manner. The Registrar must send a copy of the notice of objection to the licence applicant. It does not carry over from the 1976 Act the right for the REINZ to object to a renewal application. 97. The REINZ submits that, in addition to the right to object to a licence application, there should also be a right to object to a licence renewal equivalent to that found in section 29(4) of the 1976 Act. The REINZ states that this right is beneficial for consumers and should be carried over into the Bill. 2 other industry submitters supported the REINZ proposal. 98. The Bill deliberately does not allow objections to licence renewals. Under the 1976 Act, if a person is not satisfied with the outcome of a disciplinary 18

19 matter, that person can object to the licence renewal. This means that a person has two opportunities to pursue a complaint against a licensee. 99. Under the Bill, the complaints and disciplinary system will be open, transparent, independent and robust for consumers and industry members alike. An order suspending or cancelling a licence may only be made by the Disciplinary Tribunal after a hearing of evidence, with an appeal process outlined in the Bill We consider that it is inappropriate to allow an opportunity for a person who is not satisfied with the Disciplinary Tribunal outcome to object to a licence renewal. The correct process is to appeal the decision to the High Court. No change. Clause 39 Written submission in response by applicant 101. Clause 39 allows an applicant to send a written submission in response to the notice of objection to the Registrar. The Registrar must send a copy to every person who gave notice of an objection See clause The Government is considering its position on provisions relating to the Registrar. We will provide the Committee with further advice on this clause. Officials will provide the Committee with further advice on this clause. Clause 40 Registrar to hold hearing if notice of objection made 104. Clause 40 provides that the Register must appoint a time and place for hearing the application and objection. The Registrar must give at least 14 days notice of the hearing to the applicant and any person objecting The Registrar must hear the applicant and any person objecting and must consider the evidence put before him or her See clause

20 107. The Government is considering its position on provisions relating to the Registrar. We will provide the Committee with further advice on this clause. Officials will provide the Committee with further advice on this clause. Clause 41 Registrar to licence applicant or decline application 108. Clause 41 requires the Registrar to issue or decline an application for a licence The Registrar may issue 3 classes of licence: an agent s licence; a branch manager s licence or a salesperson s licence. Clause 41 also sets out the actions the Registrar must take if he or she is not satisfied that the applicant is entitled to be licensed See Clause The Government is considering its position on provisions relating to the Registrar. We will provide the Committee with further advice on this clause. Officials will provide the Committee with further advice on this clause. Clauses 42 - Provisions relating to licenses 112. Clause 42 sets out special provisions requiring any person holding an agent s licence who enters into partnership with any person in respect of a real estate business to obtain prior approval from the Authority Sub-clause (2) requires that a person who joins a company, may not act in the capacity of an officer of the company, after the issue of an agent s licence to that company without the approval of the Authority. Sub-clause (3) requires that the Authority must refuse to grant its approval unless it is satisfied that the person is eligible to hold an agent s licence or that the real estate business of the company is disproportionately small in relation to the other business of the company. 20

21 114. Sub-clauses (2) and (3) were inadvertently carried across from the 1976 Act. The Bill is intended to relax the restrictions on real estate company ownership or directorships. These sub-clauses should be deleted and replaced with a sub-clause requiring that at least one officer of the company must hold an agent s licence at any given time. Amend clause 42 to delete sub-clauses (2) and (3) and, instead, require that at least one officer of a company must hold an agent s licence at any given time. Clauses 43 Duty to produce evidence of issue of licence 115. Clause 43 provides that licensees are under a duty to produce evidence of their licence if requested to do so No submissions commented on this clause. No change. Clause 44 Term of licence 117. Clause 44 provides that the term of a licence is for 12 months commencing from the date that the Registrar enters the applicant s name in the register This is a change from the 1976 Act which requires that all agent licences and branch manager and salesperson certificates continue in force until the expiration of the year in respect of which they were issued. Under the 1976 Act all licences and certificates expire on 31 March and are renewed as at 1 April. Renewal must be made by 15 February of each year or the licence or certificate is cancelled The REINZ submits that the term of the licence should continue to be until the expiration of the year in respect of which it is issued. Its rationale appears to be that if, as it proposes, agents make applications for branch managers and salespersons, this would be more administratively simple The REINZ also argues that it is common industry practice for an agent or employer to pay for each branch manager s and salesperson s licence and that under the proposed regime it will be much more difficult to keep track of renewal dates to ensure that people are licensed. The REINZ expresses 21

22 concern that agents may require individuals to be responsible for applying for and paying for renewals industry submitters expressed support for the REINZ s view on this clause. One industry member supported the clause We consider it appropriate that individuals should take responsibility for their own licence application and renewal. The Bill provides for an individual licensing regime which requires individuals to make their own application. Agents and branch manager licences and salesperson licences differ in terms of entry requirements relating to qualifications and experience. No change. Clause 45 Licence may not be transferred 123. Clause 45 prohibits the transfer or vesting of the licence to any other person No submissions commented on this clause. No change. Clause 46 Agent s licence 125. Clause 46 sets out the effect of an agent s licence. That is that an agent s licence authorises the licensee to carry out real estate agency work on his or her own account. In other words it enables a person or a company to run a real estate business No submissions commented on this clause. No change. 22

23 Clause 47 Branch manager s or salesperson s licence 127. Clause 47 sets out the effect of a branch manager s and salesperson s licence industry submissions specifically opposed this clause as it will take away effective control of salespeople with the requirement now being for supervision The 1976 Act requires each branch to be approved by the Real Estate Agents Licensing Board as a specified place and under the control of a branch manager. A number of industry submitters expressed concern that the Bill does not carry over this requirement The key issue is the appropriate supervision of salespersons, rather than constraining businesses by requiring each branch to be approved and controlled by a branch manager We consider that in a modern business environment it is no longer appropriate to require physical branches to be individually approved and supervised by a branch manager. This is thought too restrictive on the industry, preventing businesses from structuring themselves in the most efficient and cost effective way. Modern real estate businesses require the flexibility to adjust their structures to meet changing marketplace demands, such as selling real estate through the internet or grouping offices under area managers. No change. Clause 48 - Salespersons must be supervised 132. To ensure there is proper supervision of salespeople within the industry clause 48 requires salespersons to be supervised and managed by an agent or a branch manager when carrying out agency work. This replaces the 1976 Act concept of requiring an agent or branch manager to be in effective control REINZ proposes that clause 48 is amended to clarify that agents bear ultimate responsibility for ensuring salespeople are properly supervised other industry submissions specifically opposed this clause. There appears to be concern that the term effective control of salespersons used in the current Act is not being replicated in the Bill. Many of the agents who 23

24 specifically commented on this clause thought that supervision rather than effective control implied a watering down of their control over the activities of salespersons We consider that the term effective control is an anachronism which is not appropriate for modern occupational regulation. Any business is responsible for the activities of its employees or those it engages as independent contractors. In particular, we do not consider that the phrase effective control is appropriate to modern real estate agency work, which for the most part is carried out away from a branch office and the oversight of management or colleagues. It is, however, important that agents or branch managers have systems in place for providing appropriate guidance and supervision to their sales staff. Similarly, we do not agree with the REINZ s submission that it is necessary to clarify that agents bear ultimate responsibility for ensuring salespersons are properly supervised. No change. Clause 49 Employment of Salespeople 136. Clause 49 allows salespersons to be employed as independent contractors or employees. - Vicarious liability 137. The REINZ supports the inclusion of this provision in the Bill, but submits that it should be amended to restate the provision in section 51A(6) of the current Act, which provides that agents are vicariously liable for the acts or omissions of independent contractors, as if they were employees The vicarious liability provision in the 1976 Act was inadvertently omitted from the Bill. - Status of salespeople as independent contractors % of all submitters supported the inclusion of this clause, however, there were a small number of industry salespersons who submitted that they would like the opportunity and security of being employees rather than engaged as independent contractors John Bradley, Totally Kiwi Real Esate, and Malcolm Cox, a real estate agent and lecturer at Massey University, submit that this clause allows the industry to employ far too many salespeople, as the business costs of engaging independent contractors are far less than for employees. Malcolm Cox also expresses concern that the real estate industry has no obligation to pay 24

25 independent contractors minimum wage and does not have the risk that other industries bear from poor performing salespersons. He also comments on the potential adverse affect independent contractor status has on the behaviours exhibited within the industry Gordon Meyer, Tuatara Realty Ltd and a former professional standards manager with the REINZ, expressed concern that independent contractors leaving the industry being owed money by agents from commissions from sales that they have negotiated, have no recourse to the Wage Commission, when in dispute with an agent, because of their employment status The Bill carries over the right of salespersons to be engaged as independent contractors found in section 51A of the current Act. This section was inserted in the current Act after a 1992 Court of Appeal decision held that real estate salespeople were actual employees rather than independent contractors. 1 One of the reasons for the decision was that the nature of the contractual relationship was dictated by the current Act, which requires salespeople to be under the effective control of the licensed real estate agent The effect of the Court of Appeal decision was that commission only salespeople could no longer deduct their own expenses from their income and that real estate firms were liable to pay salespersons minimum wages and holiday pay. Real estate firms suddenly faced a contingent liability for minimum wages and holiday pay that, collectively, amounted to many millions of dollars. The then Government agreed, after strong lobbying from the industry, to amend the current Act to return firms and salespersons to the positions they enjoyed prior to the Court of Appeal decision Real estate salespersons and sharemilkers are the only two occupational groups to be specifically exempt from the tests governing employment status in the Employment Relations Act. We agree that there are arguments that the ability to engage salespersons as independent contractors contributes to the high number of salespeople, high turnover, and has the potential to contribute to unethical behaviour in the industry The ability to engage salespeople as independent contractors facilitates large numbers and high turnover of staff due to the low cost of engaging new independent contractors. There is no obligation for agents to pay salespeople a minimum wage and salespeople can be engaged on commission only contracts, meaning that the cost of wages does not limit the number of salespeople. With these low costs, real estate firms can take on large numbers of salespeople to raise the business profile, regardless of whether there is a general business need for additional staff. There is also little of the business risk borne by other industries from poor performing salespeople, as such salespeople fail to earn adequate commission and will leave the industry of their own accord at little cost to the agents. 1 Challenge Realty Ltd & Ors v Commissioner of Inland Revenue [1990] 3 NZLR

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