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Revised Statutes of Newfoundland 1990


CHAPTER R-2

AN ACT RESPECTING THE LICENSING OF REAL ESTATE AGENTS, THE REGULATION OF TRADING IN REAL ESTATE AND THE REAL ESTATE FOUNDATION

Analysis

1. Short title

2. Definitions

PART I
REAL ESTATE
REGULATION

3. Superintendent

4. Exceptions

5. Issue of licences

6. Application

7. Representative

8. Salesperson's licence

9. Offices

10. Branch offices

11. Prohibition

12. Advisory board

13. Further application

14. Return of licences

15. Address for service

16. Additional information

17. Changes

18. Death of agent

19. Bond

20. Licence required

21. Agent and salesperson

22. Appeal

23. Appeal

24. Forfeiture

25. Period of bond

26. Disposition of proceeds of bond

27. Action on bond

28. Books and accounts

29. Trust

30. Search and seizure

31. Certificate

32. Action for commission

33. Action

34. Promises to resell prohibited

35. Carrying on business as individual

36. Prohibition

37. Unregistered agents and salespersons

38. Advertising

39. Employment of unregistered persons

40. Trading for other agents

41. Purchase of listed real estate

42. Breaking of contract

43. Statements to be delivered

44. Certain commission agreements prohibited

45. Agreement to list real estate

46. Agreements to sell, purchase, etc.

47. Filing of prospectus

48. Copy of prospectus

49. Offence

50. Limitation

51. Regulations

PART II
REAL ESTATE
FOUNDATION

52. Definition

53. Foundation continued

54. Composition of board

55. Vacating office on board

56. Objects of foundation

57. Fund

58. Foundation may receive gifts

59. Powers of board

60. Audit and report

61. Trust money

62. Non-compliance of agent

63. Agent not liable to client

64. Client's money not affected

65. Dissolution of foundation

66. Commencement


Short title

1. This Act may be cited as the Real Estate Trading Act.

RSN1970 c326 s1

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Definitions

2. In this Act

(a) "agent" means a person who by himself or herself or through 1 or more officials or salespersons trades or purports to trade in real estate on behalf of himself, herself or another;

(b) "business" means an undertaking carried on for gain or profit or an interest in that undertaking, and includes a boarding house, a hotel, a store, a tourist camp and a tourist home or an interest in either of them;

(c) "licence" means a licence issued under section 5 and includes a renewal of a licence;

(d) "licensed agent" means an agent who holds a valid agent's licence issued under section 5;

(e) "licensed salesperson" means a person who holds a valid salesperson's licence issued under section 5;

(f) "official" includes a president, a vice-president, a secretary, a treasurer, a managing director, a general manager, a department manager, a branch office manager and persons acting in a similar capacity whether so designated or not;

(g) "person", in addition to its meaning in the Interpretation Act, includes a partnership;

(h) "real estate" includes freehold and leasehold property and chattels real and a business, whether with or without the premises, fixtures, stock-in-trade, goods or chattels used in connection with the operation of the business;

(i) "superintendent" means the Superintendent of Real Estate Agents and Salespersons appointed under section 3;

(j) "salesperson" means a real estate salesperson and includes a person employed, appointed or authorized by an agent to trade in real estate; and

(k) "trade" or "trading" includes

(i) a disposition or acquisition of or transaction in real estate by sale, purchase, agreement for sale, exchange, option, lease, rental or otherwise,

(ii) an offer or attempt to list real estate for the purpose of a disposition, acquisition or transaction,

(iii) an act, advertisement, conduct or negotiation, directly or indirectly, in furtherance of a disposition, acquisition, transaction, offer or attempt, and

(iv) real property management and the collection or rent for others.

RSN1970 c326 s2; 1973 No39 Sch C;
1975-76 No58 s4; 1977 c26 s1

PART I
REAL ESTATE REGULATION

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Superintendent

3. (1) The Lieutenant-Governor in Council shall appoint a Superintendent of Real Estate Agents and Salespersons to administer and enforce this Act and the regulations.

(2) The Lieutenant-Governor in Council may appoint a Deputy Superintendent of Real Estate Agents and Salespersons who, in the absence or incapacity of the superintendent, shall perform the duties and exercise the powers of the superintendent.

(3) For the purpose of carrying out his or her powers and duties under this Act the superintendent has the powers, privileges and immunities that are or may be conferred on a commissioner under the Public Inquiries Act.

1977 c26 s3

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Exceptions

4. This Act shall not apply to

(a) an assignee, custodian, liquidator, receiver, trustee or other person acting under a statute of Canada or of the province, a person acting under an order of a court, or an administrator of an estate or an executor or trustee selling under the terms of a will, marriage settlement or deed of trust;

(b) a bank, loan, trust or insurance company trading in real estate in the ordinary course of its business;

(c) a person who completes not more than 3 trades in a calendar year in real estate owned by him or her or in which that person has a substantial interest, or a person who rents property owned by that person, or in which that person has a substantial interest;

(d) a person who holds a valid certificate of the Law Society of Newfoundland entitling that person to practise as a solicitor in the province and who trades in real estate in the course of and as part of his or her practice; or

(e) a person or class of persons exempted from the application of this Act by the regulations.

RSN1970 c326 s4; 1977 c26 s4

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Issue of licences

5. (1) The superintendent may issue to a person

(a) a licence to be known as an agent's licence, authorizing that person to trade in real estate as a licensed agent;

(b) a licence to be known as a salesperson's licence, authorizing that person to act as the salesperson of a licensed agent;

(c) without examination, a licence to be known as a restricted agent's licence, authorizing that person to trade in real estate on his or her own behalf; or

(d) without examination, a licence to be known as a restricted salesperson's licence, authorizing that person to act as the salesperson of a person who holds a restricted agent's licence.

(2) A person who holds a restricted agent's licence is considered to be an agent for the purpose of this Act and a person who holds a restricted salesperson's licence is considered to be a salesperson for the purpose of this Act.

(3) A licence shall expire at midnight on December 31 of the calendar year in which it is issued, but, subject to compliance with this Act and the regulations, a person may obtain an annual renewal of his or her licence.

(4) The superintendent may suspend, revoke or cancel a licence, where in his or her opinion that action is in the public interest.

RSN1970 c326 s5; 1977 c26 s2; 1978 c65 s1

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Application

6. An application for a licence shall be made to the superintendent before a date, in a form and accompanied by a fee that may be prescribed in the regulations in respect of that licence.

RSN1970 c326 s6; 1977 c26 s2

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Representative

7. (1) A partnership or corporation applying for an agent's licence shall designate a natural person to act as its representative.

(2) The natural person designated under subsection (1) shall be a person who

(a) will be actively engaged in the partnership or corporation; and

(b) has met the qualifications and successfully completed the examinations prescribed by the regulations for a licensed agent.

(3) The name of the representative designated under subsection (1) shall be set out on the licence issued to a partnership or corporation.

1977 c26 s5

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Salesperson's licence

8. (1) A salesperson may be licensed only as the salesperson of a licensed agent.

(2) The termination of the employment of a salesperson with a licensed agent shall operate as a suspension of the licence of that salesperson until written notice has been received by the superintendent from that or another licensed agent of his or her intention to re-employ or employ the salesperson and until the salesperson's licence has been restored or renewed and the salesperson has been notified in writing by the superintendent of the restoration or renewal.

(3) An associate, partner or employee of a natural person who is a licensed agent, or an officer, member or employee of a partnership or corporation which is a licensed agent may apply for a salesperson's licence.

(4) An application for a salesperson's licence shall be accompanied by a statement made by or on behalf of the licensed agent for whom the applicant proposes to act as salesperson,

(a) recommending the applicant as an appropriate person to receive a salesperson's licence; and

(b) declaring that, where the applicant is granted a licence, the applicant shall act as a salesperson employed by and representing the licensed agent by or on whose behalf the statement is made.

(5) A salesperson's licence shall have written on the licence the name of the licensed agent who is the principal of that salesperson.

RSN1970 c326 s8; 1977 c26 s2

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Offices

9. (1) The superintendent shall not issue an agent's licence to a person unless that person maintains a permanent office in the province satisfactory to the superintendent.

(2) An office and branch office of a licensed agent shall be in a place of business satisfactory to the superintendent and clearly designated by the sign of the licensed agent.

(3) In this section "branch office" means a place other than the main office of an agent that is used by a salesperson as his or her principal place for conducting business.

(4) This section does not apply to the holder of a restricted agent's licence.

1977 c26 s6; 1978 c65 s2

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Branch offices

10. (1) A licensed agent may not establish branch offices without the prior written authorization of the superintendent.

(2) A branch office established under subsection (1) shall be under the direct and continuous supervision of a licensed salesperson of at least 2 years' experience.

1977 c26 s7

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Prohibition

11. Without the prior written consent of the superintendent,

(a) an agent's licence may not be issued under this Act to a person who is licensed as an agent or subagent under the Life and Accident Insurance Agents Licensing Act; and

(b) a person who holds an agent's licence issued under this Act may not hold a licence as agent or subagent under the Life and Accident Insurance Agents Licensing Act.

RSN1970 c326 s10; 1977 c26 s2

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Advisory board

12. (1) In determining the granting or refusal of applications for the issue or renewal of licences or the suspension or cancellation of a licence or the reinstatement of a suspended or cancelled licence, the superintendent may, and shall when so requested by the agent or salesperson concerned, appoint an advisory board.

(2) The advisory board appointed under subsection (1) shall consist of 3 persons, at least 1 of whom shall be the holder of a valid agent's licence.

(3) The advisory board shall hold hearings and make reports to the superintendent with recommendations that it considers appropriate, and before making a decision respecting the licence, the superintendent shall consider, but is not bound by those reports and recommendations.

RSN1970 c326 s11; 1977 c26 s2

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Further application

13. Where a licence has been refused, a further application for it may be made by an agent or salesperson upon new or other material or where it is clear that material circumstances have changed.

RSN1970 c326 s12

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Return of licences

14. Where a licence has been suspended or cancelled under this Act, the holder of the licence shall immediately return the licence to the superintendent.

RSN1970 c326 s13; 1977 c26 s2

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Address for service

15. An applicant for a licence or renewal of a licence shall state in his or her application an address for service in the province, and a notice under this Act or the regulations shall be sufficiently served where delivered or sent by prepaid mail to the latest address for service so stated.

RSN1970 c326 s14

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Additional information

16. The superintendent may require further information or material to be submitted, within a specified time, by an applicant or other person who holds a licence and may require, where he or she so wishes, verification by affidavit or otherwise of information or material then or previously submitted.

RSN1970 c326 s15; 1977 c26 s2

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Changes

17. A licensed agent shall notify the superintendent in writing of

(a) a change in his or her address for service within 10 days of the change;

(b) where the agent is a partnership, a change in the partners; and

(c) the commencement and termination of employment of a salesperson employed by the licensed agent.

RSN1970 c326 s16; 1977 c26 s2; 1978 c65 s3

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Death of agent

18. (1) Where a licensed agent who is a natural person dies, the superintendent may issue to the executor or administrator of that agent a temporary agent's licence for a term not longer than 6 months in respect of the business of the deceased licensed agent.

(2) Where a temporary agent's licence is issued under subsection (1), salespersons licensed as salespersons of the deceased licensed agent at the time of his or her death shall be considered to be licensed as salespersons of the person to whom the temporary licence was issued, for the term of that temporary licence.

RSN1970 c326 s17; 1977 c26 s2

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Bond

19. (1) An application for an original licence shall be accompanied by a bond to the Crown in an amount and form that may be prescribed under this Act.

(2) An application for a renewal of a licence shall be accompanied by

(a) a bond to the Crown in a form and amount that may be prescribed under this Act; or

(b) a certificate of a surety company that a surety bond previously filed on behalf of the applicant is in force.

RSN1970 c326 s18

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Licence required

20. A person shall not

(a) trade in real estate as an agent, unless that person holds a valid agent's licence issued under section 5;

(b) trade in real estate as a salesperson, unless that person holds a valid salesperson's licence issued under section 5;

(c) act as an official of or on behalf of a partnership or corporation in connection with a trade in real estate by a partnership or corporation unless that person or the partnership or corporation holds a valid agent's licence; or

(d) act as a salesperson of or on behalf of a partnership or corporation in connection with a trade in real estate by the partnership or corporation unless that person holds a valid salesperson's licence of that partnership or corporation and the partnership or corporation holds a valid agent's licence.

RSN1970 c326 s19

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Agent and salesperson

21. A person shall neither act nor hold himself or herself out as

(a) a licensed agent, unless the person holds a valid agent's licence; or

(b) a licensed salesperson, unless the person holds a valid salesperson's licence.

RSN1970 c326 s20

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Appeal

22. (1) Where a person is dissatisfied with a decision of the superintendent respecting the issue, renewal, suspension, cancellation or reinstatement of a licence, that person may appeal from the decision to a judge of the Trial Division.

(2) Where a person proposes to appeal under subsection (1), that person shall, within 30 days after the decision of the superintendent from which that person proposes to appeal, serve on the superintendent a written notice of his or her intention to appeal.

(3) A notice of appeal served under subsection (2) shall be signed by the appellant or by his or her solicitor or agent, and, in the notice, the grounds of the appeal shall be set out, and the appellant shall file a copy of the notice in the office of the Registrar of the Supreme Court.

RSN1970 c326 s21; 1974 No57 Sch C; 1977 c26 s2; 1986 c42 Sch A

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Appeal

23. (1) The appellant shall, not less than 14 days before the hearing of the appeal, serve upon the superintendent a written notice of the days appointed for the hearing.

(2) The judge shall hear the appeal and the evidence brought forward before the judge by the appellant and the Crown in a summary manner and shall decide the matter of the appeal.

(3) The superintendent shall produce before the judge on the hearing of the appeal all papers and documents in his or her possession affecting the matter of the appeal.

(4) The costs of the appeal are in the discretion of the judge, and the judge may make an order respecting them in favour of or against the Crown and may fix the amount of the costs.

RSN1970 c326 s22; 1977 c26 s2

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Forfeiture

24. A bond given under this Act shall be forfeited and the amount of the bond shall be recoverable from the person bound by it as a debt due the Crown, where

(a) a conviction of an offence, under this Act or of an offence involving fraud, theft, or conspiracy to commit an offence involving fraud or theft under the Criminal Code has been made by a court;

(b) a civil judgment arising out of a trade in real estate has been made;

(c) a winding-up or receiving order has been made under the Bankruptcy Act (Canada) or the Winding Up Act (Canada),

against the person in respect of whose conduct the bond was conditioned, or where that person is a partnership, a partner of that partnership, and that conviction, judgment or order has become final.

RSN1970 c326 s23; 1977 c26 s8

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Period of bond

25. In respect of an act or omission occurring during the term of a licence, a bond shall continue in force for a period of 2 years after the licence or renewal of the licence to which it relates ends or is cancelled.

RSN1970 c326 s24

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Disposition of proceeds of bond

26. The superintendent shall assign the proceeds of a bond forfeited under section 24 to the Registrar of the Supreme Court who shall distribute the proceeds to a person who has become a judgment creditor of the agent or salesperson in respect of a claim arising out of a trade in real estate, or has otherwise proved his or her claim to the satisfaction of the registrar in respect of that claim.

1977 c26 s9

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Action on bond

27. (1) Where the Crown becomes a creditor of a person under this Act, the debt may be recovered by action or other proceeding in a court as a debt due the Crown.

(2) Where a bond has been forfeited under section 24, the Registrar of the Supreme Court shall repay the balance of the proceeds remaining, less the expenses of the registrar, to the bonding company at the end of 2 years following the payment to the Crown of the proceeds of the bond.

RSN1970 c326 s26; 1977 c26 s10

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Books and accounts

28. (1) An agent shall keep proper books and accounts with respect to the agent's trades and shall enter in the books and accounts in respect of each trade

(a) the nature of the trade;

(b) a description of the real estate involved sufficient to identify it;

(c) the true consideration for the trade;

(d) the names of parties to the trade;

(e) the amount of deposit received and a record of the disbursement of it; and

(f) the amount of the commission or other remuneration and the name of the party paying it.

(2) An agent shall maintain on a daily basis a trust account record in which the agent shall enter the full details of the receipt and disbursement of the trust money.

RSN1970 c326 s27; 1977 c26 s11

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Trust

29. (1) An agent shall maintain at least 1 interest-bearing trust account of a type approved by the superintendent in a financial institution that is authorized to receive money on deposit.

(2) An agent shall deposit in a trust account money received by the agent in trust for other persons in connection with real estate transactions and shall make deposits within 2 banking days of their receipt by the agent.

(3) An agent shall not disburse money from a trust account unless

(a) the offer of purchase has not been accepted by the vendor;

(b) the sale has been completed;

(c) written notice from the vendor and purchaser has been received by the agent authorizing the return of the deposit to the purchaser;

(d) a court has given a direction as to the disbursement of the proceeds; or

(e) the money has been deposited into the trust account in error.

1977 c26 s12; 1986 c14 s2

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Search and seizure

30. (1) The superintendent may authorize a person to, at reasonable times, where it is reasonably necessary to determine compliance with this Act,

(a) enter upon the business premises of an agent; and

(b) demand the production of and inspect the books of account, cash, bank accounts, vouchers, documents, correspondence and records of the agent that the authorized person believes on reasonable grounds are in respect of the person about whom the investigation is being made.

(2) Where the superintendent believes on reasonable grounds that a person has contravened this Act or the regulations, the person authorized by the superintendent may with a warrant issued under subsection (3) at a reasonable time enter upon the business premises of an agent and may investigate, inquire into and examine the affairs of the person in respect of whom the investigation is being made and into books of account, cash, bank accounts, vouchers, documents, correspondence and records in relation to that person.

(3) A Provincial Court judge or justice of the peace who is satisfied by information upon oath or affirmation that there are reasonable grounds for believing that there is on a business premises anything that there are reasonable grounds to believe will give evidence with respect to an offence under this Act may issue a warrant authorizing a person authorized by the superintendent and named in the warrant to enter and search those premises and to make inquiries and copies of books of account, cash, bank accounts, vouchers, documents, correspondence and records that are considered necessary, subject to those conditions that may be specified in the warrant.

(4) The owner or person in charge of the premises referred to in this section and a person found there shall give the person authorized by the superintendent reasonable help to enable that person to carry out his or her duties and functions under this section and shall provide the information that that person may reasonably require.

1985 c11 s59

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Certificate

31. An agent shall, when required by the superintendent, file a certificate satisfactory to the superintendent as to the agent's financial position signed by the agent or, where the agent is a partnership, by the partners, and by an accountant approved by the superintendent.

RSN1970 c326 s30; 1977 c26 s2

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Action for commission

32. An action shall not be brought for commission or for remuneration for services in connection with a trade in real estate, unless at the time of rendering the services the person bringing the action was licensed or exempt from licensing, and, where an action is brought, the court may stay it at any stage.

RSN1970 c326 s31

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Action

33. An action shall not be brought to charge a person for the payment of a commission or other remuneration for the sale, purchase, exchange or lease of real estate, unless

(a) the agreement upon which the action is brought is in writing and signed by the party to be charged or some person by him or her lawfully authorized;

(b) the agent or his or her salesperson has obtained a written offer that is accepted; or

(c) the agent having been authorized in writing to list the property

(i) shows the property to the purchaser, or

(ii) introduces the purchaser to the vendor for the purpose of discussing the proposed sale, purchase, exchange or lease.

RSN1970 c326 s32

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Promises to resell prohibited

34. An agent or salesperson shall not, as an inducement to purchase, sell or exchange real estate, make a representation or promise that he or she or another person will

(a) resell or in any way guarantee or promise to resell real estate offered for sale by him or her;

(b) purchase or sell the purchaser's real estate;

(c) obtain a mortgage, extension of a mortgage, lease or extension of a lease; or

(d) purchase or sell a mortgage or obtain a loan,

unless the agent or salesperson making it delivers to the person to whom the representation or promise is made, when it is made, a statement signed by that agent or salesperson clearly setting out the details of that representation or promise.

RSN1970 c326 s33

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Carrying on business as individual

35. (1) An agent who is a natural person and who is not associated in partnership with another person shall carry on business in his or her own name only and shall not use a description, words or device that would indicate that his or her business is being carried on by more than 1 person or by a corporation.

(2) Notwithstanding subsection (1), a surviving or remaining partner may carry on business in the name of the original partnership, where he or she publishes on letterheads and circulars used by the surviving or remaining partner in connection with his or her business the fact that the surviving or remaining partner is the sole proprietor of the business.

RSN1970 c326 s34

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Prohibition

36. An agent or salesperson shall not trade in real estate until he or she is notified in writing by the superintendent that he or she is licensed under this Act.

RSN1970 c326 s35; 1977 c26 s2

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Unregistered agents and salespersons

37. A person who is not licensed as an agent shall neither directly nor indirectly hold himself or herself out as being an agent and a person who is not registered as a salesperson shall neither directly nor indirectly hold himself or herself out as a salesperson.

RSN1970 c326 s36

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Advertising

38. An agent shall, when advertising to purchase, sell, exchange or lease real estate, clearly indicate his or her own name as that of the party advertising and that he or she is an agent, and a reference to the name of a salesperson in the advertisement shall clearly indicate the agent as being the employer of the salesperson.

RSN1970 c326 s37

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Employment of unregistered persons

39. An agent shall not employ, permit or engage the salesperson of another agent or a person who is not a licensed salesperson to trade in real estate, nor shall an agent pay commission or other remuneration to that salesperson or person.

RSN1970 c326 s38

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Trading for other agents

40. A salesperson shall not trade in real estate on behalf of an agent other than the licensed agent who, according to the records of the superintendent, is his or her employer, and a salesperson is not entitled to or shall not accept a commission or other remuneration for trading in real estate from a person except the licensed agent who is registered as his or her employer.

RSN1970 c326 s39; 1977 c26 s2; 1982 c9 s11

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Purchase of listed real estate

41. (1) An agent or salesperson shall not, either directly or indirectly

(a) purchase for himself or herself;

(b) make an offer to purchase for himself or herself; or

(c) acquire for himself or herself an interest in,

real estate listed with the agent or salesperson for sale, until the agent or salesperson has clearly disclosed in writing to the listing owner that

(d) he or she is purchasing the real estate or acquiring an interest in the real estate for himself or herself;

(e) he or she is about to negotiate, is negotiating or has negotiated for the resale or other disposition of the real estate giving full details of the negotiation; and

(f) it is his or her intention to resell the real estate for his or her own account, if he or she intends to do so.

(2) A vendor is not liable for the payment of a commission to an agent when disclosure is not made to the vendor in accordance with subsection (1).

RSN1970 c326 s40; 1977 c26 s14

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Breaking of contract

42. (1) An agent or salesperson shall not induce a party to a contract for sale or rental of real estate to break the contract for the purpose of entering into another contract for its sale or rental.

(2) Unless agreed to in writing by the vendor, an agent is not entitled to claim commission from a vendor in respect of a trade in real estate, where the real estate is to the knowledge of that agent covered by an unexpired exclusive listing agreement with another licensed agent.

RSN1970 c326 s41

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Statements to be delivered

43. (1) Where a trade in a business is negotiated by an agent or the agent's salesperson, the person negotiating the trade shall, before a binding agreement of purchase and sale is signed by the parties, deliver to the person acquiring the business,

(a) a profit and loss statement or a statement showing the revenue and expenditure of the business, during the preceding 12 months or since the acquisition of the business by the person disposing of it;

(b) a statement of the assets and liabilities of the business; and

(c) a statement containing a list of fixtures, goods, chattels, rights and other assets relating to or connected with the business that are not included in the trade,

and a statement shall be signed by the person disposing of the business or his or her agent lawfully authorized in that behalf.

(2) Where an agent or a licensed salesperson of that agent delivers to the person acquiring the business an affidavit of the person disposing of the business setting out

(a) the terms and conditions under which the person disposing of the business holds possession of the premises in which the business is being carried on;

(b) where the person disposing of the business has sublet a part of the premises in which the business is being carried on, the terms and conditions of the sublease;

(c) liabilities of the business; and

(d) that the person disposing of the business has made available those books of account of the business that the person possesses for inspection by the person acquiring the business, or that the person disposing of the business has no books of account of the business,

the person acquiring the business may waive compliance with paragraphs (1)(a) and (b) by signing and delivering to that agent or salesperson a statement that he or she has received and read the affidavit of the person disposing of the business.

(3) Unless the statement mentioned in paragraph (1)(c) is delivered under that subsection, fixtures, goods, chattels and rights and other assets relating to or connected with the business shall be considered to be included in the transaction.

RSN1970 c326 s42

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Certain commission agreements prohibited

44. (1) An agent or salesperson shall not request or enter into an agreement for the payment to the agent or salesperson of commission or other remuneration based on the difference between the price at which real estate is listed for sale and the actual sale price of the real estate, and an agent or salesperson is not entitled to retain a commission or other remuneration so calculated.

(2) A commission or other remuneration payable to an agent in respect of a trade in real estate shall be upon an agreed amount or percentage of the sale price or rental and, where no agreement as to the amount of the commission has been entered into, the rate of commission or other basis or amount of remuneration shall be that generally prevailing in the community where the real estate is situated.

RSN1970 c326 s43; 1986 c33 s11; 1987 c41 s19

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Agreement to list real estate

45. (1) An agent and salesperson shall, immediately after the execution of an agreement to list real estate for sale, exchange, lease or rent with the agent, deliver to the person who has signed the agreement a true copy of the agreement.

(2) An agreement with an agent to list real estate for sale, exchange, lease or rental is not valid, where

(a) it does not contain a provision that it will end on a certain date specified in the agreement;

(b) it contains a provision for more than 1 date on which it may end; or

(c) a true copy of it is not delivered by the agent or his or her salesperson to the other party immediately after its execution.

RSN1970 c326 s44

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Agreements to sell, purchase, etc.

46. Where an agent or salesperson has secured an acceptance of an offer to sell, purchase, exchange, lease or rent real estate, the agent or salesperson shall require each of the parties to sign a sufficient number of copies of the agreement, and the agent or salesperson shall retain 1 signed copy and shall immediately deliver 1 signed copy to each of the parties.

RSN1970 c326 s45

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Filing of prospectus

47. (1) An agent or salesperson who proposes to trade within this province in real estate, where the real estate is a lot or unit of land in a subdivision consisting of more than 3 lots located outside the province, shall file a prospectus, in the form prescribed by the regulations, with the superintendent and shall not begin the sale of that real estate until the superintendent has approved the prospectus.

(2) The superintendent may make those inquiries relating to the prospectus that the superintendent considers necessary.

(3) An approval granted under subsection (1) is not a certification by the superintendent of the prospectus, and the superintendent is not liable for damages in respect of that approval.

1977 c26 s15

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Copy of prospectus

48. (1) An agent or salesperson shall provide a copy of the prospectus filed under section 47 to a prospective purchaser at least 7 days before the signing of an agreement of sale by the purchaser or a deposit or other payment made by him or her.

(2) Where subsection (1) is not complied with, the purchaser may rescind an agreement of sale or deed and shall have his or her deposit or purchase money returned by the agent or salesperson.

1977 c26 s15

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Offence

49. A person who fails to comply with or otherwise contravenes this Act or the regulations, or makes a false statement in a form, return, account or statement made under this Act or the regulations, is guilty of an offence and liable on summary conviction to a fine of not more than $1,000 for a 1st offence and not more than $2,000 for a subsequent offence, and, for either a 1st or a subsequent offence, in default of payment of a fine or in addition to that fine, to imprisonment for a period not exceeding 6 months.

RSN1970 c326 s46

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Limitation

50. (1) A prosecution under this Act or the regulations shall be started within 2 years from the date on which the offence is alleged to have been committed.

(2) A prosecution for an offence under this Act or the regulations shall not be started, except with the written consent of the Attorney General.

RSN1970 c326 s47

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Regulations

51. The Lieutenant-Governor in Council may make regulations

(a) prescribing the amount and form of bonds to be provided under this Act;

(b) prescribing the fees payable upon application for a licence and the renewal of a licence and other fees in connection with the administration of this Act and the regulations;

(c) prescribing forms of licences, applications and other forms for use under this Act and the regulations;

(d) providing for the holding of inquiries into the operation of this Act and into a charge or complaint that an agent, salesperson or another person has contravened this Act or the regulations, or has made a false statement in a form, return, account or statement required to be completed or made under this Act or the regulations, or into another matter arising in the administration of this Act, and providing that the person holding the inquiry shall have any or all of the powers that are or may be conferred upon a commissioner under the Public Inquiries Act, including the power to take evidence under oath or affirmation;

(e) prescribing the returns and statements to be made by licensees and other persons, the information to be given in those returns and statements, and by whom and in what manner they shall be made;

(f) providing for the qualifications and the examination of applicants for licences;

(g) providing for the regulation of trading by agents;

(h) prescribing the books, accounts and records to be kept and maintained by agents;

(i) fixing or limiting the commission or rates of commission that may be charged and collected by agents; and

(j) prescribing the form of the prospectus to be filed under section 47;

(k) prescribing the form of an offer to purchase and agreement of sale;

(l) respecting the advertising of real estate for sale by agents;

(m) exempting persons or classes of persons from the application of this Act;

(n) prescribing other matters or things required by this Act to be prescribed; and

(o) generally, to give effect to the purpose of this Act.

RSN1970 c326 s48; 1977 c26 s16

PART II
REAL ESTATE FOUNDATION

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Definition

52. In this Part "minister" means the Minister of Justice.

1986 c14 s3

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Foundation continued

53. The Real Estate Foundation is continued as a corporation.

1986 c14 s3

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Composition of board

54. (1) The foundation shall be administered by a board of governors, in this Part called the "board".

(2) The members of the board shall be appointed by the minister as follows:

(a) 1 person who is an employee of the Department of Justice;

(b) 1 person who is not licensed under this Act who shall represent the public; and

(c) 3 persons licensed under this Act and engaged in real estate trading.

(3) The minister shall designate 1 of the persons appointed under paragraph (2)(c) as chairperson of the board.

(4) A person shall be appointed to the board for a period of 3 years and is eligible for reappointment.

(5) Where a vacancy occurs on the board, the minister may appoint a replacement and the appointment of the replacement shall be made so as to reflect the composition of the board as set out in subsection (2).

(6) A person appointed to fill a vacancy shall be appointed for the rest of the term of office of the person who vacated it or until a successor is appointed.

(7) Three members of the board, at least 1 of whom is a member appointed under paragraph (2)(a) or (b), constitute a quorum.

(8) An act of the board is not invalid because a defect is afterwards found in the appointment of 1 of its members.

1986 c14 s3

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Vacating office on board

55. (1) A person appointed to the board shall vacate the office where

(a) the person ceases to hold the qualifications necessary for the appointment;

(b) the person becomes bankrupt;

(c) the person is convicted of a criminal offence; or

(d) the person is unable to act.

(2) A person appointed to the board may resign from the board upon giving 1 month's notice to the board of an intention to do so, and the resignation takes effect upon the end of that period or upon its earlier acceptance by the board.

1986 c14 s3

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Objects of foundation

56. The objects of the foundation are to establish and maintain a fund and to use the proceeds of the fund for the following purposes:

(a) to promote continuing education among those engaged in real estate trading;

(b) to sponsor, support and promote research and to make recommendations affecting real estate trading; and

(c) to do other things that are, in the opinion of the foundation, incidental or conducive to the attainment of the objects set out above.

1986 c14 s3

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Fund

57. The fund of the foundation shall be composed of

(a) the money paid to the foundation from interest accruing from interest bearing accounts maintained by agents under section 29;

(b) interest accruing from investments of the foundation;

(c) money received by the foundation by way of gift, bequest or devise; and

(d) money resulting from the use, disposal or investment of property of the foundation or received by the foundation from other sources.

1986 c14 s3

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Foundation may receive gifts

58. (1) The foundation has the power to receive gifts, bequests and devises of property, real or personal, and to hold, use or dispose of that property in furtherance of the objects of the foundation, subject to the terms of a trust affecting the property.

(2) Any form of words is sufficient to constitute a gift, bequest or devise to the foundation so long as the person making the gift, bequest or devise indicates an intention to contribute to the foundation.

1986 c14 s3

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Powers of board

59. (1) The board may

(a) pay, out of the funds of the foundation, the costs, charges, audit and other fees and expenses involved in the administration and operation of the foundation;

(b) appoint, employ or otherwise retain persons to carry out the objects of the foundation;

(c) acquire, hold, mortgage, dispose of and otherwise deal with real and personal property in the name and for the objects of the foundation; and

(d) make by-laws respecting the administration of its affairs, funds and property and respecting other matters that relate to the powers and purposes of the foundation or that are incidental to the powers and purposes of the foundation.

(2) Money of the foundation shall, pending its investment or application under this section, be paid to a financial institution authorized to receive money on deposit to the credit of the foundation.

(3) Money that is not immediately required for the purposes of the foundation may be invested in the name of the foundation by the board in a manner in which trustees are authorized by law to invest trust funds.

1986 c14 s3

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Audit and report

60. (1) The accounts of the foundation shall be audited annually by a chartered accountant appointed for this purpose by the board and the chartered accountant shall report to the foundation and to the superintendent.

(2) The board shall report periodically to the superintendent or when requested by him or her and shall present an annual report to the minister.

1986 c14 s3

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Trust money

61. (1) A financial institution authorized to receive money on deposit that holds money in trust for an agent as provided for in section 29 and that credits an agent with interest on that money shall remit to the foundation that interest money.

(2) A financial institution authorized to receive money on deposit that holds money in trust for an agent as provided for in section 29 shall

(a) calculate the amount of interest earned on money deposited to an agent's interest bearing trust account;

(b) pay, at least twice a year and if twice a year, in the months of April and October, into an account held in the name of the foundation, the amounts calculated under paragraph (a); and

(c) give written notice to the board when each payment is made.

1986 c14 s3

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Non-compliance of agent

62. Where the board is of the opinion that an agent is not complying with this Part, the board shall report the non-compliance to the superintendent.

1986 c14 s3

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Agent not liable to client

63. An agent is not liable, by virtue of the relationship between the agent and a client or the relationship between the agent as a trustee and a beneficiary under a trust, to account to the client or the beneficiary for interest received by the agent on money on deposit in an account referred to in section 29.

1986 c14 s3

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Client's money not affected

64. (1) Nothing in this Part affects a written arrangement, whenever made, between an agent and another person as to the application of that person's money or interest on the money, or applies to money deposited in a separate account for a person bearing interest that shall be and remain the property of that person.

(2) Nothing in this Part applies to a security deposit held by an agent to which section 15 of the Residential Tenancies Act applies.

1986 c14 s3

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Dissolution of foundation

65. (1) Upon the dissolution of the foundation and after payment of debts and liabilities of the foundation, its remaining funds and property shall be distributed or disposed of to charitable organizations having objects the same as or similar to the objects of the foundation which carry on their work solely in Canada.

(2) The funds or property of the foundation shall not be available to the members of the board or to an agent upon dissolution of the foundation.

1986 c14 s3

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Commencement

66. Sections 47 and 48 come into force on a date to be proclaimed by the Lieutenant-Governor in Council.

©Earl G. Tucker, Queen's Printer