IN THE MATTER OF THE REAL ESTATE SERVICES ACT S.B.C. 2004, c. 42 -AND- DARLENE KATIE BENTROTT -AND-

Transcription

1 IN THE MATTER OF THE REAL ESTATE SERVICES ACT S.B.C. 2004, c. 42 DARLENE KATIE BENTROTT DARLENE KATIE BENTROTT doing business as DARLENE'S PROPERTY MANAGEMENT SERVICE -AND- -AND- -AND- DARLENE KATIE BENTROTT doing business as EVENT ENTERPRISE ORDERS UNDER SECTIONS 51 AND 49 OF THE REAL ESTATE SERVICES ACT UPON REVIEWING the submissions and exhibits contained in the Investigation Report prepared by the staff of the Superintendent of Real Estate ("Staff'), I am of the opinion that: Background -1. Darlene's Property Management Service ("DPMS") has been registered as a sole proprietorship in British Columbia since May 12, Darlene Katie Bentrott ("Bentrott") is the registered sole proprietor of DPMS. The registered address of DPMS is Dalgleish Drive, Kamloops, BC. 2. Bentrott also does business as Event Enterprise. Event Enterprise is neither registered as a company, nor is it registered as a sole proprietorship in British Columbia. 3. The Real Estate Council of British Columbia (the "Council") has confirmed that Bentrott, DPMS and Event Enterprise are not, nor have they ever been, licensed to provide real estate services in British Columbia. Superintendent of Real Estate Suite 2800, Box West Hastings Vancouver, BC V6B 4N6 Telephone: Facsimile: htlp:/lwww. fie. gov. be. ca

2 Page 2 Applicable Legislation 4. Section 1 of the Real Estate Services Act ("RESA") provides the following definitions: "providing", in relation to real estate services, includes offering to provide such services, holding oneself out as a person who provides such services, or soliciting for the purposes of the provision of such services; ureal estate" means real property, regardless of whether it is or is not an interest in real property, a cooperative interest, shared interest in land or time share interest, as these are defined in the Real Estate Development Marketing Act, and a right in relation to real property that is defined by regulation to be real estate, but does not include a right in relation to real property that is excluded by regulation; "real estate services" means rental property management services, strata management services, or trading services; "remuneration" includes any form of remuneration, including a commission, fee, gain or reward, whether the remuneration is received, or is to be received, directly or indirectly; "rental property management services" means any of the following services provided to or on behalf of an owner of rental real estate: trading services in relation to the rental of the real estate; collecting rents or security deposits for the use of the real estate; managing the real estate on behalf of the owner by (i) (ii) making payments to third parties, negotiating or entering into contracts,

3 Page 3 (iii) (iv) supervising employees or contractors hired or engaged by the owner, or managing landlord and tenant matters but does not include an activity excluded by regulation; "rental real estate" means real estate that is or is intended to be rented or leased; "trading services" means any of the following services provided to or on behalf of a party to a trade in real estate: (d) (e) (f) (g) (h) advising on the appropriate price for the real estate; making representations about the real estate; finding the real estate for a party to acquire; finding a party to acquire the real estate; showing the real estate; negotiating the price of the real estate or the terms of the trade in real estate; presenting offers to dispose of or acquire the real estate; receiving deposit money paid in respect of the real estate but does not include an activity excluded by regulation; 5. Section 3( 1) of RESA states: 3(1) A person must not provide real estate services to or on behalf of another, for or in expectation of remuneration, unless the person is licensed under this Part to provide those real estate services, or exempted by subsection (3) of the regulations from the requirement to be licensed under this Part in relation to the provision of those real estate services. Complaint Historv 2008 Complaints 6. On September 8, 2008 and October 1, 2008, Maureen Coleman ("Coleman") of the Council wrote to Staff about possible unlicensed real estate services being

4 Page 4 provided by Bentrott and DPMS. Coleman forwarded the following promotional material which had come to her attention: One page flyer which included the following: "Is Finding The Right Tenant Becoming More Of A Headache And Taking Up Too Much Of Your Time? We Have a Solution For You DARLENE'S PROPERTY MANAGEMENT SERVICE Specializing in: Residential, Complexes, Vacation Properties One on One Service Advertising Application Screening Placing Ten ants Handle Agreements Collection of Rent Monthly Bank Deposits Ten ant Maintenance Ground Maintenance Property Inspections CALL TODAY ~" Undated letter from Bentrott introducing herself and DPMS to Kamloops. In her letter she indicated that she has been "doing rental management for more than 10 years now." Eight letters of reference from various property owners who were using Bentrott to manage their rental properties. One of those letters was undated, but four were dated 2007 and three were dated Staff spoke with Bentrott on November 14, 2008, and advised her of the licensing requirements under RESA, of which she said she had been unaware. In her discussions with Staff she confirmed that she did charge her clients for her services ($50 per month); that she currently had approximately 10 clients; and that the services she provided included rent collection, negotiating leases and dealing with landlord and tenant issues. 8. Bentrott contacted Staff on January 7, In that phone discussion, Bentrott advised that she had ceased all rental property management services and that she was looking into becoming licensed. Based on these assurances, Staff sent Bentrott a confirming letter dated January 13, 20q9, by registered mail (which she signed for on January 15, 2009), and then closed the file.

5 Page Complaints 9. In Council referred three new complainants to Staff after they raised concerns about possible unlicensed property management activities conducted by Bentrott and DPMS. The details of these complaints are set out below. P Complaint 10. On March 24, 2010, c._ and M P (the "P ') contacted Staff about concerns they had about the rental property management services provided to them by Bentrott and DPMS between September 30, 2008 and April 2010.' 11. Thh~e~==~ have owned property located at in Pritchard, BC ("I ')since May 29, On September 29, 2008, they entered into an agreement with Bentrott and DPMS pursuant to which BentrotUDPMS would provide the following services in respect of-, for a monthly fee, commencing September 30, 2008: Collecting rent and depositing it into the P account Maintaining tenants Dealing with repairs Weekly drive-bys for property inspections Landlord in-house inspections Handling paperwork Returning of damage deposit after inspection Rent increases Incoming and outgoing inspections 13. The P used the rental property management services of Bentrott and DPMS for until April 30, They advised Bentrott, by , that they intended to move back into-on May 1st, In a February 3, written to the P, Bentrott wrote: "... this time of month is so busy I have 56 homes to collect rent from and do monthly inspections at the same time."

6 Page 6 Trombley Complaint 15. On August 13, 2010, Council forwarded a complaint from R and C ~ (the..,_,,) regarding rental property management services provided to them by Bentrott and DPMS between September 2008 and February 1, In a letter dated June 8, 2010, addressed "To Whom It May Concern", the,_ set out some of their concerns as follows: "... The unacceptable behaviour began when Darlene found tenants for the property in September She agreed, without our consent, to give them two weeks of free rent as an incentive. Even worse, she did not even inform us that she had allowed tenants into the property. We only learned about the tenants when we tried to have utilities installed, but found they were already done in the tenants' name. After learning about the tenants, we then discovered that Darlene had approved them having a pet, something which we had told her was not acceptable." 16. The ~ have been the registered owners of property at in Kamloops, BC (" ') since September 15, On August 11, 2008, the ~ signed a property management services contract with Bentrott and DPMS pursuant to which Bentrott!DPMS would provide the following services in respect of, for a monthly fee, commencing September 15, 2008: Collecting rent and depositing it into the ~ account Maintaining tenants Dealing with repairs Weekly drive-bys for property inspections Landlord in-house inspections Handling paperwork Returning of damage deposit after inspection Rent increases Incoming and outgoing inspections 18. The T- provided Staff with a number of exchanges they had had with Bentrott. In one such exchange, from October 2, 2009, Bentrott advised the as follows about a possible rent increase for "Yes we can raise the rent because they have been there a year, but we can only raise it, 3.2% of the rent, which would be $54.50 and I have to give them three months notice, so end of Oct I can give them 3 months notice... Just a word of caution the house is

7 Page 7 very high as it is we were lucky to get someone in, we might not be so lucky next time... " 19. According to the complaint form they provided to the Council, the ~ ceased using Bentrott and DPMS for rental property management services on February 1, S and R Complaint 20. On November 3, 2010, the Council forwarded a complaint from ~ s (S } and s R (Rirl regarding management services provided by Bentrott and DPMS for rental property they owned at Kamloops, British Columbia ( ). 21. S and R have owned R since September 30, On September 4, 2009, S and signed a property management services contract with Bentrott and DPMS pursuant to which Bentrott/DPMS would provide the following services in respect of, for a monthly fee, commencing October 1, 2009: Collecting rent and depositing it into S and ~account Maintaining tenants Dealing with repairs Periodic drive-bys for property inspections Landlord in-house inspections Returning damage deposit after inspection Rent increases Incoming and outgoing inspection Advertising Appointments and showings Application checks and screening Placing tenants Paper work/rental agreement/damage deposit s 22. According to the initial complaint made to the Council, and~ terminated their agreement with Bentrott and DPMS in April One of S and ~ complaints was that Bentrott had failed to forward the security deposit which she had collected on their behalf from the tenant of to their new property manager. They had written to Bentrott's address (~) on October 1, asking where the deposit was. On October 4, 2010, they received the following response to their

8 Page 8 "Good morning, My name is Trish I work part time for Darlene, setting appointments up for Events, Darlene is not here right now she is up in alberta taking some more courses for her event planning business, Parties & Events Enterprise, but she has ask me to contact you, Darlene as not done properties for almost a year now, but thinks she still has some old files somewhere, can you let us know what city, what property that you are speaking about and the amount, and she is sure that it would h~ve been an oversite if in fact that is the case and if so will refund your money asap, we do not know how long it will take to find this information, but we will put a rush on it...[sic]" 24. The deposit was finally returned to and R.- on November 16, On November 9, 201 0, Staff contacted Bentrott by to advise her that new complaints had been received and were being investigated, and to remind her of the assurances she had provided in 2009 that she would cease providing rental property management services until such time as she was licensed to do so. 26. On November 12, 2010, Bentrott responded to Staff's November 9, as follows: From: EVENT ENTERPRISE -@shaw.ca]... this is a surprise to hear from you after 2 years, normally I do not look at this but because I am moving to alberta next week i am checking the s one last time, well I am not sure what you mean by several complaints from about the management service from clients back then, when I only had no more than 15 at that time, when i had started letting clients go I had a few sour clients that wanted me to give fake notices to tenants... at first when i started I retained the first couple of deposits but then changed my mind and yes those were in a trust account... just for you notes I only made $ , there are many construction companys that are doing management for big bucks and some realtor as well... as I have said I am moving next wesday to Alberta with my new business Events Enterprise, and this and phone no will cut off. [sic]" 27. On November 27, 201 0, Bentrott wrote Staff again as follows: "...! am leaving this morning for alberta so my will no longer available to me as I have canceled this because of my move to alberta with my new business. You must have not read my

9 Page 9 very well please reread it says past tense i no longer do property management and when i did back then it was registered a s a business through the goverment and I never heard of tenants damage deposits going to the realstate board. trust accounts are done thru banks, having said that I did everything legal back then except not knowing I needed a realstate licence, please be in formed I only helped my past clients which are friends now then for No Fee to trian them to take care of their own rentals the right way... [sic]" 28. On December 17, 201 0, Staff wrote Bentrott a letter confirming her assurance that she would immediately cease all property management activities and that she would be moving to Alberta. Based on this information, Staff advised that their file would be concluded. The letter, however, was returned on January 21, 2011, stamped "Moved/Unknown/Return to sender." 2011/nvestigation 29. On July 29, 2011, the Council sent another complaint to Staff about Bentrott. The complainant, J- K.. ("J. ~) indicated that Bentrott and Event Enterprise were providing rental property management services to her, and to approximately 30 other rental property owners in the Kamloops area. J. K had indicated that Bentrott had failed to forward the full net rent to her, as agreed, further, that Bentrott had increased her management fee without J. K j consent on two occasions. This matter was then referred to Investigator Judith Ashbourne ("Ashbourne") for investigation. J. ~ Complaint 30. On October 14, 2011, J.-advised Ashbourne that she had retained Bentrott and DPMS to provide rental property management services between November 12, 2008 and June 30, The services were provided for property that J. ~and T J K ("T. ~') owned at in Kamloops, BC (the " - ). J. K.. and T. ~owned the between June 30, 1980 and November 15, J; ~ provided Ashbourne with a copy of the rental property management service contract she signed with Bentrott and DPMS on November 12, That contract included the following terms:

10 Page 10 "The Owner hereby employs [DPMS] to rent and manage" the - commencing November 12, "Monthly Management Fee: $50.00 Per Single Dwelling Placing of Tenant Fee: $ Per Single Dwelling." "Management Services Provided Monthly: Collecting Rent and Depositing in your Bank Maintain Tenants Deal with repairs/owner is called/followed by instructions Periodic drive bys for Property Inspections Landlord in House Inspections Handle Paperwork Returning of Damage Deposit after Inspection Rent Increases Incoming & Outgoing Inspections" 33. J. ~also provided Ashbourne with the following documents and additional information: (d) J. ~provided bank statements which show monthly deposits she says were made to her account by Bentrott on April 5, 2010, May 3, 201 0, October 4, 2010, November 2, and December 3, According to J. ~. these deposits reflect the monthly rent from the- - less Bentrott's/DPMS's management fee and other expenses. J. ~ advised Ashbourne that in Bentrott unilaterally increased the property management fee from $50 per month (as contemplated by their contract) to $60 and then $70 per month in Bentrott arranged for repair services in respect of an air conditioner at the for which J. ~ had two invoices. The invoice of Bishop's Plumbing and Heating dated June 28, 2010 is addressed to "Darlene Property service manager". The July 14, 2010 invoice of Optimum Air is addressed to "Darlene's Property Management." On July 4, 2011, J. K.. wrote Bentrott, expressing the following concerns: "I would like you to your 2 attempts at contacting me re air conditioner. I have requested this a few times, with no result. Yes it was an emergency to clean up the water but not so to go ahead and get it repaired without my consent...

11 Page [The tenant has been s]hort on rent more than 3 times, which you covered up. Had I not looked into my bank records would not know this, nor would I have known about the air conditioner. It was 3 months after the fact that I found out about that again through my bank records not you. 2. She also had more people in there than I rented to ( 1 month notice for this) 3. When you allowed the dogs (2) you were to get a pet deposit and also do an inspection, which was not done..." (e) In an to J. ~ sent July 4, 2011, Bentrott wrote the following: "... and if you were un happy with me I had told you thru last year that if you are not happy just let me know and i will sign off no problem and you said no thats ok, so I must have been doing some thing right, as I have stated I am not held responseable for any action other than my job, if i was not doing a good job you could have let me go any time in 2 % years, so to say that i do not do a good job when I have over 30 Clients that are happy and one that is not to happy speaks for its self. I think I do pretty good at what i do and trying to keep clients income coming in and following the rules of the Act which is our judge and jury when dealing with rentals... [sic]." {f) In a second to J. ~sent July 4, 2011, Bentrott wrote: "... 1 am no longer going to discuss this with you any further because I have done this for over 15 years and know the act like the back of my hand, and you also owe me for june fee as well, once I talk to the Act, I will finish off, but remember when looking at the act check the one that as to do with 2 months notice and what follows with that [sic]." 34. On May 30, 2012, J. K.. told Ashbourne that she had recently run into a woman named "Michelle" who told her that she rents a home being managed by Bentrott, on behalf of the owners. ~~("D. ~'? Complaint 35. On November 8, 2011, Ashbourne spoke with D. ~who, with her husband Philip has owned in Kamloops, BC (the " ) since June 11, In that conversation, D. ~advised as follows:

12 Page 12 She and her husband retained Bentrott and DPMS to manage the s beginning January 1, Bentrott had managed the since January 2009, during which time she provided various services, including collecting rent from tenants and, after deducting her management fee, depositing the balance into D. ~account. D. ~intended to terminate her contract with Bentrott on December 31, On December 7, 2011, D. K spoke with Ashbourne, and advised her that after Bentrott had deposited the December 2011 rent into her bank account, '-sent two registered letters to "Darlene Bentrott, Event Enterprises", terminating their property management agreement, effective December 31, On January 17, 2012 Ashbourne spoke again with D. ~.who advised that as both registered letters to Bentrott had been returned, undelivered, she phoned Bentrott during the second week of January 2012 to advise they were terminating their property management arrangement with her. Continued advertising 37. During and the latter half of 2011, Staff conducted internet searches on websites which list rental properties, by searching for listings which included Bentrott's phone number [(250) 461--] and/or address ~). Below is a list of some of those advertisements, with the date(s) they were posted, as well as information obtained by Staff with respect to property ownership: 1-bedroom suite at 205 Battle StreetW., Kamloops, BC. Rental listing on dated April 8, 2010 Those interested were asked to call to view This property was not, and is not, owned by Bentrott 2-bedroom top floor duplex at 523 Holt Street, Kamloops, BC Rental listings on kijiji. ca dated April 8, 201 0, August 6, 2011 and September 16, 2011 Those interested were asked to call to view This property was not, and is not, owned by Bentrott 3-bedroom townhouse at 383 Columbia Street, Kamloops, BC

13 Page 13 Rental listing on kiiiji. ca dated June 2, Those interested were asked to call to view As the unit number of the rental property (which is part of a multiunit complex) was not provided, it could not be verified who owned ~. (d) 2-bedroom townhouse at 1435 Summit Drive, Kamloops, BC Rental listings on dated August 5, 2010, September 13, and September 22, Those interested were asked to call to view As the unit number of the rental property (which is part of a multiunit complex) was not provided, it could not be verified who owned it 38. In addition to the foregoing, which included specific addresses, Staff found nine additional rentals being advertised, in 2011, which directed interested parties to call or, in one instance, to ~- While the rentals being advertised did not include specific street addresses, BC Assessment searches conducted by Staff on December 16, 2011 and February 1, 2012 suggest that Bentrott does not own any real property in British Columbia. As such, it does not appear that any rental property being advertised in this fashion belonged to her. AND WHEREAS I find that: 1. Neither Bentrott, nor Bentrott doing business as DPMS, nor Bentrott doing business as Event Enterprise is licensed under RESA to provide real estate services within the province of British Columbia. A license is required pursuant to section 3 of RESA for a person to provide real estate services to or on behalf of another. 2. "Real estate services" under RESA includes rental property management services. 3. Bentrott, Bentrott doing business as DPMS and/or Bentrott doing business as Event Enterprise are actively engaged in providing rental property management services, to or on behalf of others, for or in expectation of remuneration. I note, in particular, the following: Bentrott has been previously warned about the requirements of RESA and has indicated to Staff twice in the past that she would cease. Despite

14 Page 14 those assurances, she has continued to provide rental property management services, without being licensed. Specifically: (i) Following the investigation of complaints received in 2008, Bentrott advised Staff on January 7, 2009, that she had ceased all property management activity and was in the process of becoming licensed. Staff confirmed the content of this discussion, and reminded Bentrott of the RESA licensing requirements, in a letter dated January 13, (ii) Despite that assurance, further complaints were received in and the subsequent investigation would suggest that she continued to provide rental property management services to the following clients: Bentrott and DPMS acted as a paid rental property manager for the P from September 30, 2008 to April2010 Bentrott and DPMS acted as a paid rental property manager for the,._ from August 11, 2008 until February 1, Bentrott and DPMS acted as a paid rental property manager for S and fw from October 2009 until April 2010 There were a number of advertisements for rental property placed online in 2010, where the contact number provided was Bentrott's (iii) After receiving additional complaints about the continued provision of unlicensed rental property management services in 2010, Staff again contacted Bentrott. At that time she advised Staff, in an dated November 17, 2010, that she was no longer involved in rental property management; she was moving to Alberta; and she has not been charging fees for her services. (iv) Despite this second assurance, subsequent investigation conducted in 2011 suggests that she did indeed continue to provide rental property management services, for a fee, to the following clients: Bentrott and DPMS acted as a paid rental property manager for J. ~ from November 12, 2008 until June 30, 2011

15 Page 15 Bentrott and DPMS acted as a paid rental property manager for D. ~until December 31, The kind of services provided by Bentrott, Bentrott doing business as DPMS and/or Bentrott doing business as Event Enterprise, for a fee, have included: (d) (e) (f) listing properties for rent and making representations about them; collecting and remitting rent; advising on appropriate rent; collecting damage deposits; making payments to third parties for repairs; and negotiating or entering into rental contracts on behalf of property owners. 5. Neither Bentrott, nor Bentrott doing business as DPMS, nor Bentrott doing business as Event Enterprise, is exempted from the requirement to be Hcensed by subsection 3(3) of the RESA, nor are either exempted from the requirement to be licensed by the Real Estate Services Regulation. 6. Bentrott, Bentrott doing business as DPMS, and Bentrott doing business as Event Enterprise are engaging in real estate services for which a license under RESA is required, although neither has the required license. l THEREFORE CONSIDER that Bentrott, Bentrott doing business as DPMS, and Bentrott doing business as Event Enterprise are conducting themselves in a manner that would enable me to make an order under section 49 of RESA. I AGREE with Staff that a hearing would require approximately ten witnesses and would take approximately seven days to complete, and could not be held until mid or late October, at the earliest, due to scheduling of parties, witnesses, counsel and the hearing officer. I FIND that the length of time that would be required to hold a hearing in order to make an order under section 49 of RESA would be detrimental to the due administration of RESA given that it would likely result in further non-compliance with the provisions of RESA. Of particular concern is the past history of complaints, warnings and assurances from Bentrott herself. In spite of that history, and in spite of assurances provided to Staff, Bentrott, Bentrott doing business as DPMS and/or Bentrott doing business as Event Enterprise have continued to provide rental property management services for a fee, as recently as December Furthermore, serious concerns have been raised by

16 Page 16 property owners about the services Bentrott/DPMS/Event Enterprise have provided including the following: failure to return a damage deposit; increasing management fees unilaterally; and failing to follow explicit instructions from owners regarding tenancy terms. Continued non-compliance would harm the reputation of the British Columbia real estate industry and would be detrimental to the public interest. I AM FURTHER OF THE OPINION that it is in the public interest to make a summary order under section 51 of RESA so that the public is protected against further noncompliance with RESA. I THEREFORE ORDER pursuant to sections 51 (2) and 49(2) of RESA as follows: 1. That Darlene Bentrott, Darlene Bentrott doing business as Darlene's Property Management Service, and Darlene Bentrott doing business as Event Enterprise cease and desist conducting, directly or indirectly, real estate services, including rental property management services, in British Columbia, effective immediately, unless and until they become licensed to do so under the provisions of the Real Estate Services Act. TAKE NOTICE that Darlene Bentrott, Darlene Bentrott doing business as Darlene's Property Management Service and Darlene Bentrott doing business as Event Enterprise, may appeal this Order to the Financial Services Tribunal under section 54(1)(e) of RESA, or require a hearing before the Superintendent under sections 51(3) and 45(6) of RESA. Dated at the City of Vancouver, Province of British Columbia thi~~ay o~~2012. Carolyn Rogers Superintendent of Real Estate Province of British Columbia

17 Page 17 TO: Darlene Bentrott Darlene Bentrott dba Darlene's Property Management Service Dalgleish Drive Kamloops, BC V2C 6C7 Real Estate Council of British Columbia # West Pender Street Vancouver, British Columbia V6C 2T8