Bill 16 — Second Session, 22Nd Legislature, 39 Elizabetii Ii the Legislative Assembly of Alberta Bill 16 Real Estate Agents' Licensing Amendment Act, 1990 (Legislature 22, Session 2)

L22 S2 2691

Alberta — Bills

1990 BILL 16 Second Session, 22nd Legislature, 39 Elizabetii II THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 16 REAL ESTATE AGENTS' LICENSING AMENDMENT ACT, 1990 MR. NELSON First Reading Second Reading Committee of tiie Whole Third Reading Royal Assent

Bill 16 Mr. Nelson BILL 16 1990 REAL ESTATE AGENTS' LICENSING AMENDMENT ACT, 1990 (Assented to , 1990) HER MAJESTY, by and widi die advice and consent of die Legislative Assembly of Alberta, enacts as follows: 1 The Real Estate Agents' Licensing Act is amended by this Act. 2

Section 1 is amended (

a) by adding the following after subsection (l)(a.l): (a.2) "branch office" means, subject to the regulations, any commercial space that is used as an office for the purpose of tiading in real estate and is in a location other tiian tiie principal place of business of tiie agent who operates it; (

b) by adding the following after subsection (l)(d): (d.01) "Foundation" means die Alberta Real Estate Foundation established under

section 15.5; (

c) by repealing subsection (l)(f); (

d) by adding the following after subsection (l)(g): (g.l) "money diat he receives in tiust", "money tiiat he holds in tmst" and odier similar references to tiust money received or held by an agent, designated representative or salesman means money diat (

i) is paid to die agent, designated representative or salesman by a party to a ti-ade in real estate, and

Explanatory Notes 1 This Bill will amend

chapter R-5 of tiie Revised Stamtes of Alberta 1980. 2

Section 1 presently reads m part: 1(1) In this Act, (f) "licensed person" means a person who is the holder of a licence issued under this Act and includes a representative designated under

section 6; (k) "property user's licence" means a licence permitting the residential use of furnished real property under which (

i) the licensee may have residential use of that property or any substituted property for 2 or more periods of continuous use, (ii) at least one period of continuous use following the first period of continuous use commences in a year subsequent to the year in which the first period of continuous use commences, and (iii) the licensee is required to pay, during or prior to the year in which any period of continuous use commences, a consideration for the residential use of that property or any substituted property for any period of continuous use commencing in any subsequent year; Explanatory Notes

(ii) is paid on the express or implied agreement or condition diat it will be used for a specific purpose or retumed to die party in accordance with the agreement or condition; (

e) by repealing subsection (l)(

k) and substituting the following: (k) "property user's licence" means a licence permitting die use of real property for residential purposes in circumstances under which (

i) the licensee may have use of that property or any substituted property for 2 or more periods of continuous use, (ii) at least one period of continuous use following tiie first period of continuous use commences in a year subsequent to the year in which the first period of continuous use commences, and (iii) die licensee is required to pay, during or prior to die year in which any period of continuous use commences, a consideration for the use of that property or any substituted property for any period of continuous use commencing in any subsequent year; (

f) in subsection (l)(

o) by striking out "or" at the end of subclause (ii) and by repealing subclause (iii) and substituting the following: (iii) assisting or offering to assist a person to dispose of, acquire or enter into a ti:ansaction in real estate referred to in subclause (i), otiier dian through a listing, in circumstances in which diat person pays a fee or other consideration for tiiat assistance, (iv) collecting, or offering or attempting to collect, on behalf of the owner or otiier person in charge of real estate, money payable as (

A) rent for the use of die real estate, or (

B) contributions for the conttol, management or administtation of die real estate. or (

v) any act, advertisement, conduct or negotiation directiy or mdu-ecdy in furtiierance of any activity referred to in subclauses (

i) to (iv).

(o) "trade" means (

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 a disposition or transaction referred to in subclause (i), or (iii)

an act, advertisement, coruiuct or negotiation directly or indirectly in furtherance of such a disposition, acquisition, transaction, offer or attempt, and the verb "trade" has a corresponding meaning.

(2) For the purposes of this Act, a property user's licence is deemed to be located where thejurnished real property in respect of which the licence is granted is located. Explanatory Notes

(

g) by adding the following after subsection (1):

(1.1) The provision of information alone does not constitute assisting or offering to assist for the purposes of subsection (l)(o)(iii). (

h) in subsection (2) by striking out "fumished". 3

Section 2(1) is amended by sti-iking out "or" at the end of clause (c.l), adding "or" at the end of clause (

d) and adding the following after clause (d): (

e) a person exempted by die regulations. 4

Section 5 is amended by renumbering it as

section 5(1) and by adding the following after subsection (1):

(2) An agent who ttades in real estate from a branch office must hold a separate licence in respect of each branch office from which he ttades. 5

Section 6 is amended (

a) by adding the following after subsection (2):

Section 2(1) presently reads: 2(1) This Act, except sections 38 to 49, does not apply to (

a) an assignee, custodian, liquidator, receiver, trustee or other person acting as directed by a statute or under the order of a court, or to 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 or a trust or insurance company trading in real estate owned or administered by the company, (

c) a person (

i) who acquires real estate or any interest in real estate, (ii) who disposes of real estate owned by him or in which he has a substantial interest, or (iii) who is an official or employee of a person engaged in so acquiring or disposing of real estate, (c.

l) a person trading in real estate that consists only of mineral rights to the extent that the person is engaged in that activity, or (

d) a member in good standing of the Law Society ofAlberta when the trade is made in the course of and as part of a solicitor's practice. 4

Section 5 presently reads: 5 An agent is not eligible to be licensed or to hold a licence unless he maintains a business office in Alberta. 5

Section 6 presendy reads: 6(1) A partnership or corporation (

a) may apply for and obtain a licence as an agent in the name of the partnership or corporation, and 3 Explanatory Notes

(2.1) An agent who operates a branch office shall designate an individual to act as his representative widi respect to tiiat office.

(2.2) An individual designated by an agent as his representative under subsection (2.1) shall meet die qualifications of an agent required under this Act (

b) by repealing subsection (3) and substituting the following:

(3) No individual designated under subsection (1) or (2.1) shall (

a) be licensed as an agent, (

b) be employed as a salesman of another agent, (

c) act as a designated representative for more tiian one agent at the same time, or (

d) act as a designated representative with respect to more tiian one branch office at the same time. (

c) by adding the following after subsection (3):

(4) A designated representative (

a) must be actively engaged in the management of the real estate business of the agent who designated him, and (

b) is, togetiier witii tiie agent, responsible for ensuring that die agent's real estate business is carried on in accordance with diis Act and the regulations.

(5) If a designated representative dies or ceases to be a designated representative in respect of a particular real estate operation, die agent may, widi die consent of die Superintendent, designate anotiier person as die designated representotive in respect of that real estate operation, notwitiistanding diat that person does not meet die qualifications of a designated representative.

(6) A designation under subsection (5) shall be for a term fixed by die Superintendent, not to exceed 12 montiis. 6

Section 7 is amended ^y^^orf-Sesm^^^'^^ ^^ '''^'''"^ "designated representative

(

b) shall designate one individual who shall act as its or their representative.

(2) An irulividual designated by a partnership or corporation as its representative pursuant to subsection (l)(

b) shall be (

a) in the case of a partnership, a partner, an officer appointed by the partnership or a manager designated by the partnership, or (

b) in the case of a corporation, a member of the board of directors of the corporation, an officer of the corporation or a manager designated by the corporation, and shall meet the qualifications of an agent required under this Act.

(3) No individual desigruited under subsection (1) shall act as the representative of more than one partnership or corporation. 6

Section 7 presently reads in part: 7(1) When a person wishes to be licensed as an agent under this Act he shall apply to the Superintendent for a licence. Explanatory Notes

(

b) by adding the following after subsection (2):

(2.1) The Superintendent may refuse to issue a licence on die same grounds on which he may cancel or suspend a licence under

section 8. (

c) by adding the following after subsection (3):

(3.1) If a person who holds an agent's licence ceases to be an agent in respect of a particular real estate operation, die Superintendent may grant to anotiier person employed in tiiat real estate operation a temporary licence for a term fixed by die Superintendent, not to exceed 12 months. 7

Section 7.1(1 )(

a) is amended by striking out "and" at the end of subclause (

i) and by adding the following after subclause (i): (i.

l) under

section 6(5) respecting die designation of designated representatives, and 8

Section 8 is ameruied (

a) in subsection (1) (

i) in clauses (a), (e.l). (e.2), (

f) and (

j) by striking out "a salesman" and substituting "a designated representative or salesman"; (ii) in clause (

c) by adding "or a designated representative or salesman of diat agent" after "agent"; (iu) m clause (

d) by adding "under

section 15.1" ctfter Fund" and by striking out "a salesman" and substituting "a aesignated representative or salesman"; (iv) by adding the following ctfter clause (f): (f.

I) when tiiat agent or a designated representative or salesman of diat agent conttavenes die terms of an undertaking entered into under

section 52.1,

(2) The Superintendent may issue a licence to cm applicant (

a) on an application being made under subsection (1), (

b) on being satisfied that the applicant is suitable to be licensed, having regard to that applicant's training, competency and personal integrity, (b.

I) on being satisfied that the applicant has paid all levies under

section 14 with respect to himself and every salesnum employed by him, and (

c) on being satisfied that the applicant meets the requirements of this Act and the regulations. 7

Section 7.1(l)(

a) presendy reads: 7.1(1) The Superintendent may, by notice in writing to the Association, (

a) delegate to the Association all or any of his rights, obligations cmd functions (

i) under sections 7,11 and 13 and under the regulations respecting licensing and the experience, training, education and examination of agents and salesmen, and (ii) relating to the maintaining of records containing information supplied under those provisions, 8

Section 8(1) presently reads in part: 8(1) The Superintendent may cancel or suspend a licence of an agent (

a) when that agent or a salesman of that agent contravenes this Act or the regulations, (

c) when that agent has misappropriated funds that he holds in trust, (

d) when a payment has been made out of the Fund with respect to that agent or a salesman of that agent, (e.

l) when that agent or a salesman of that agent does, assists another person in doing, or counsels, authorizes or procures another person to do, any of the following: (

i) makes, publishes, advertises or distributes any misrepresentation respecting a trade, (ii) makes, publishes, advertises or distributes any representation, or otherwise does anything or omits to do 5 Explanatory Notes

(

v) in clause (

i) by adding "designated representative and" before "salesman'' ,»'. (

b) by adding the following after subsection (3):

(4) When die Superintendent cancels or suspends tiie licence of an agent he may by order prohibit any designated representative or salesman of diat agent who committed die act or omission that resulted in the cancellation or suspension or who directed, authorized, assented to, acquiesced in or participated in die act or omission from ttading in real estate, subject to any terms and conditions prescribed in the order.

(5) A designated representative or salesman against whom an order is made under subsection (4) may appeal die order as if it were a cancellation of a licence, and sections 9 and 10, with necessary modifications, apply to that appeal accordingly.

(6) The Superintendent may remove or reduce a period of suspension or issue a licence to a person whose licence has been cancelled, subject to any terms and conditions the Superintendent considers appropriate. 9

Section 8.1 is amended by striking out "to licensed persons, salesmen and the public generally". 10

Section ll(l)(

d) is amended by adding "designated representative and" before "salesmen".

anything, that has the effect, or might reasonably be expected to have the effect, of influencing or inducing a trade through deception or dishonesty, (iii) offers real estate for sale or lease without the consent of the owner or his authorized agent or on terms other than those authorized by the owner or his authorized agent, (iv) places a sign offering real estate for sale or lease without the consent of the owner or his authorized agent, (

v) fculs to remove a sign offering real estate for sale or lease within 10 days after the expiration of the listing, (vi) files or continues a caveat in a Land Titles Office without reasonable cause, or (vii) falsifies a contract or other document involved in any trade, (e.2) when that agent or a salesman of that agent is convicted of an offeree against the Criminal Code (Cancuia) that is of a kind that is related to the qualifications, functions or duties of an agent, arui the time for making cm appeal has expired without the appeal's having been made or the appeal has been finally disposed of by the courts, (

f) when that agent or a salesman of that agent induces or attempts to induce a party to a contract concerning a trade in real estate to breach that contract, (

i) when that agent fails to pay all levies under

section 14 with respect to himself and every salesman employed by him, or (

j) on the occurrence of such other conduct by an agent or a salesman relating to a trade as is prescribed in the regulations. 9

Section 8.1 presently reads: 8.1 The Superintendent may publish to licensed persons, salesmen and the public generally information relative to the refusal, cancellation and suspension of licences cmd prosecutions and disciplinary actions taken under this Act, arui any such publication has qualified privilege. 10

Section ll(l)(

d) presently reads: 11(1) When a person applies for an agent's licence he shall provide the Superintendent with Explanatory Notes

Section 12(

a) is repealed and the following is substituted: (

a) on a designated representative or salesman by leaving tiie document or notice at or sending it by registered or certified mail to the address of die licensed agent by whom die designated representative or salesman is employed, and 12

Section 13 is amended (

a) by adding the following after subsection (l)(a): (a.

l) the address of a new branch office operated by him or a change in the address of a branch office operated by him; (

b) by repealing subsection (l)(

g) and substituting the following: (

g) the designation of a representative under

section 6 or any change in his designated representative; (

c) by adding the following after subsection (l)(g): (

h) any amalgamation to which it has been a party if tiiat agent is a corporation. (

d) in subsection (2) by adding "at a location to which tiie licence relates" ctfter "real estate agent". 13

Section 14 is amended (

a) by adding the following after subsection (1):

(1.1) Notwitiistanding subsection (1), die Association may, widi die prior approval of die Superintendent, use any or all of die money in die Fund diat is in excess of die amount prescribed in die regulations (

a) to establish and administer an insmance or indemnity plan for licensed agents, designated representatives and salesmen in respect of errors and omissions committed by diem m die comse of dieir acting as licensed agents, aesignated representatives or salesmen, and (

b) for any odier purpose autiiorized in die regulations.

(

d) proof, satisfactory to the Superintendent, of having paid all levies under

section 14 with respect to himself and every salesman employed by him, 11

Section 12(

a) presently reads: 12 Service of a document or other notice under this Act may be effected (

a) on a salesman by leaving the document or notice at or sending it by registered or certified mail to the address of the licensed agent by whom the salesman is employed, and 12

Section 13 presently reads in part: 13(1) A licensed agent shall immediately notify the Superintendent in writing of (

g) a change of the designated representative if that agent is a partnership or corporation.

(2) A licensed agent who ceases to carry on the business of real estate agent shall immediately notify the Superintendent and (

a) return his licence with the notification, cmd (

b) within 30 days of ceasing to carry on business provide an auditors' report, satisfactory to the Superintendent, on the status of the real estate trust account. 13

Section 14 presently reads in part: 14(1) The Association shall create a fund to be known as the "Real Estate Assurance Fund" for the purpose of paying, in whole or in part, any judgment obtained against a licensed agent or a designated representative or salesman of a licensed agent based on a finding of fraud or breach of trust in respect of a trade in real estate.

(2) Subject to the regulations, the Association may from time to time collect money by the levy of assessments (

a) on every applicant for a licence as an agent, (

b) on every agent licensed under this Act, and (

c) on every salesman employed by an agent licensed under this Act, Explanatory Notes

(

b) in subsection (2) (

i) in clause (

c) by adding "designated representative and" before "salesman"; (ii) by adding ", designated representatives" after "agents"; (

c) by adding the following after subsection (4):

(4.1) The Association shall create separate tiust accounts for money to which subsection (1) applies and for money to which subsection (1.1) applies. (

d) by repealing subsection (6) and substituting the following:

(6) If the income from the investment of the money in the Fund is insufficient to pay the administtative costs associated with the Fund, the Association may (

a) from time to time collect money to pay those costs by the levy of assessments on all or any of the persons referred to in subsection (2), (

b) use money referred to in subsection (1.1) to pay tiiose costs, or (

c) use money from a combination of sources referred to in clauses (

a) and (

b) to pay tiiose costs. 14 The following is added ctfter

section 15: 15.01(1) When a person commences an action referred to in

section 14(1) tiiat may result in a claim against the Fund, he shall fortiiwitii give notice of die commencement of die action to die Association personally or by registered mail.

(2) Where the Association is served with a notice under subsection (1) or where the Association otherwise leams of the commencement of such an action, it shall, on appUcation to die Sl^f ^f ^^^^^ ^^ ^ P^y ^" ^^ ^^^°" ^"^ tiiereafter may on t)eh^ of and m die name of the defendant take any action tiiat die defendant could have taken in respect of the action.

(3) The Association may disclose in any pleading by which it is taking steps under tiiis

section that it is appearing on behalf of and in tiie name of tiie defendant pursuant to diis section. t^^iJ^ ^^^ °^ *^ Association under subsection (2) are deemed to be me acts of die defendant and die Association may not be

whether or not those applicants, agents or salesmen are members of the Association.

(4) The Association is deemed to hold in trust all money credited to the Fund and shall immedicUely deposit that money, or cause it to be deposited, in a trust account in a bank, treasury branch, trust company or credit union in Alberta, separate and apart from any other money of the Association.

(6) If the income from the investment of the money in the Fund is insufficient to pay the administrative costs associated with the Fund, the Association may from time to time collect money to pay those administrative costs by the levy of assessments on all or any of the persons referred to in subsection (2). 14 Association's rights in respect of actions. Explanatory Notes

named as a defendant in the action and no judgment may be given against the Association.

(5) The defendant is deemed to have consented to and agreed widi any steps or action taken by the Association pursuant to diis

section and performed by the solicitor acting on instmctions from the Association.

(6) Notiiing in tiiis

section and no action or steps taken under diis

section may be constiued to the effect diat a solicitor acting on the instructions of die Association is actually acting on behalf of the defendant 15

Section 15.1(3) is repealed and the following is substituted:

(3) When a payment is made from die Fund under tiiis

section die Association has a cause of action for the recovery of tiie amount paid (

a) from the agent, where the judgment is against the agent alone, or (

b) joindy and severally from the agent and tilie designated representative or salesman, as the case may be, where die judgment is against (

i) die agent and die designated representative or salesman, as the case may be, or (ii) die designated representative or the salesman, or botii of them. 16

Section 15.3(4) is amended by adding "designated representatives or" before "salesmen". 17

Section 15.4 is amended (

a) in subsection (4)(

b) by striking out "die" and substituting each"; (

b) by repealing subsection (5).

Section 15.1(3) presently reads:

(3) When any payment has been made from the Fund, the Association is subrogated to the rights, remedies and securities to which the person receiving the payment was entitled as against the defaulting agent, desigruited representative or salesman or against the defaulting agent's, designated representative's or salesman's trustee, assign, estate or personal representative and those rights, remedies and securities may be enforced or realized, as the case may be, in the name of the Association. 16

Section 15.3(4) presendy reads:

(4) On the winding-up of the Furui, the Fund belongs to and shall be distributed, according to the shares prescribed by regulations made by the Minister, among those persons who are licensed as agents and those who are salesmen registered with the Fund under

section 15.4(4) at the time that the Superintendent issues his winding-up order. 17

Section 15.4 presently reads in part:

(4) The Association shall maintain a register showing the names of (

a) each agent who is a contributor to the Fund, (

b) the designated representative of each agent referred to in clause (a), and Explanatory Notes

18 The following is added ctfter

section 15.4: Alberta Real Estate Foundation 15.5(1) There is hereby created a corporation widi die name "Alberta Real Estate Foundation".

(2) The Foundation shall be administered by a board of govemors appointed in accordance with the regulations. 15.6(1) The purposes of tiie Foundation are (

a) to promote and undertake (

i) die education of related professionals and the public in respect of the real estate industty, (ii) law reform and research in respect of the real estate industry, and (iii) otiier projects and activities to advance and improve the real estate industry, and (

b) on die written direction of the Minister, to undertake projects and activities in respect of tiie real estate industty that are designated by the Minister as being in tiie public interest.

(2) Not more dian a prescribed percentage of the Foundation's annual net revenue, as defined in die regulations, may be used to undertake projects and activities under subsection (l)(b). 15.7(1) In addition to its otiier powers as a corporation, the Foundation may (

a) make grants or loans to any person or organization for a purpose consistent with die purposes of die Foundation; (

b) publish, produce or distiibute books, pamphlets, films or odier productions diat relate to any matter pertaining to the purposes of die Foundation; 10

(

c) each salesman who is a contributor to the Fund.

(5) The Association may, with the prior approval of the Superintendent, use all or any of the money in the Fund that is in excess of the amount prescribed in the regulations for all or any of the purposes so prescribed. 18 Establishment and operation of the Alberta Real Estate Foundation. Explanatory Notes

(

c) acquire real or personal property; (

d) hold, manage and dispose of its real and personal property; (

e) enter into a conttact witii any person in relation to any matter pertaining to the piuposes of the Foundation; (

f) borrow money from any person or enter into overdraft or line of credit arrangements widi a bank, tiieasury branch, credit union or tiust company for the purpose of meeting its obligations as they come due, and give security for die loan, overdraft or line of credit; (

g) draw, make, accept, endorse, execute or issue promissory notes, bills of exchange or other negotiable instmments.

(2) The Foundation may, as a condition of making a grant or loan, (

a) require the recipient of tiie grant or loan to enter into an agreement with respect to any matter relating to the grant or loan, and (

b) prescribe conditions to which the grant or loan is subject. 15.8(1) Notwithstanding anytiiing in tiie Trust Companies Act, the Foundation shall not be considered to be a tiust company for the purposes of diat Act.

(2) The sections of the Companies Act referred to in

section 4 of diat Act do not apply to die Foundation. 15.9(1) The Foundation may make by-laws (

a) respecting tiie conduct of die business and affairs of die Foundation; (

b) respecting tiie calling of meetings of die board of govemors and die conduct of business at those meetings; (

c) designating die offices of die Foundation; (

d) respecting die appoinunent, removal, functions, powers, duties, remuneration and benefits of officers and employees of the Foundation; (

e) delegating to die officers of die Foundation or any committee of it any powers of tiie Foundation required to 11

Explanatory Notes

manage the business and affairs of die Foundation, except the power to make by-laws; (

f) respecting die establishment of annual and odier budgets of the Foundation and the amendment of tiiose budgets; (

g) respecting the establishment, membership, duties and functions of special, standing and odier committees; (

h) respecting die making of grants or loans by tiie Foundation for purposes consistent with its purposes.

(2) The Regulations Act does not apply to a by-law of die Foundation. 15.91

(1) The Foundation shall establish a fund for the purposes of die Foundation referred to in

section 15.6.

(2) The Foundation shall open an account for the fund in a bank, tmst company, credit union or tteasury branch, to be called the "real estate foundation account".

(3) The following shall be paid into the fund: (

a) money paid to the Foundation by a bank, Uiist company, credit union or tteasury branch under

section 15.92; (

b) interest from investment of tiie money in die fund; (

c) money paid to the Foundation under

section 23(6); (

d) money received by the Foundation by way of gift.

(4) The Foundation may pay out of the fund the reasonable costs of die administtation of the fund and of carrying out tiie purposes of the Foundation.

(5) Any money tiiat is not immediately required for die purposes of die Foundation may be invested in the name of the Foundation in any manner in which ttustees are autiiorized to invest ttust funds, if die invesunents are in all otiier respects reasonable and proper. 15.92(1) An agent who maintains a tmst account referred to in

section 23 and is credited witii interest on money in tiie account by tiie bank, tmst company, credit union or tteasury branch in which die account is maintained holds die interest in tiust for die Foundation. 12

' 2 Explanatory Notes

(2) An agent referred to in subsection (1) shall, in accordance witii die regulations, insttuct the bank. Oust company, credit union or tteasury branch to pay die interest credited to the account to the Foundation,

(3) A bank, ttust company, credit union or tteasury branch tiiat receives an insttuction under subsection (2) shall pay the interest to die Foundation in accordance witii die regulations.

(4) This

section does not apply to (

a) money deposited in a separate account for a client, or (

b) a security deposit as defined in the Landlord and Tenant Act. 15.93 The accounts of tiie Foundation shall be audited annually by a person appointed by the Foundation who is autiiorized to engage in exclusive accounting practice on a fee for service basis under die Chartered Accountants Act, the Certified General Accountants Act or the Certified Management Accountants Act. 15.94 Witiiin 90 days after each fiscal year end the Foundation shall submit to the Minister a report summarizing its ttansactions and affairs timing the preceding fiscal year and containing an audited financial statement. 15.95 In the event of die winding-up of the Foundation, the property of the Foundation shall be used (

a) firstiy, in the payment of any costs incurred in tiie winding-up of the Foundation, (

b) secondly, in the discharge of all liabilities of the Foundation, and (

c) tiiirdly, to give effect, as far as possible, to any outstanding appUcable tmst conditions, and die balance, if any, shall be disposed of in accordance witii the regulations. 19

Section 17 is amended (

a) in subsection (l)(

b) by adding ", designated representative" a//er "agent"; a & F (

b) by repealing subsection (4). 13

Section 17 presently reads in part: 17(1) The Superintendent or a person authorized by him may at reasonable times demand the production of and inspect (

a) all or any of the books mentioned in

section 16, and (

b) all or any documents relating to a trade in real estate effected by any agent or salesman. Explanatory Notes

Section 18 is amended by adding "or his designated representative or salesman" after "the agent". 21

Section 23 is repealed and the following is substituted: 23(1) An agent shall keep proper books and accounts of his ttades in real estate, and enter in his books and accounts in respect of each ttade (

a) die natme of the ttade, (

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

c) die tine consideration for the ttade, (

d) the names of the parties to the ttade, (

e) the amount of deposit received and a record of the disbmsement of it, and (

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

(2) An agent shall (

a) keep a tiust ledger in which he shall maintain a separate record for each person on whose behalf he is acting of all (

i) money that he receives in tiust, (ii) money tiiat he holds in tiust, (iii) interest eamed on money that he holds in oust, and (iv) disbmsements he makes from money he receives or holds in ttust, in respect of a ttade in real estate for diat person, 14

(4) When an investigation is being carried on under

section 16, the Superintendent or the person making the investigation may seize and take possession of documents, books, papers, correspondence, communications or records of the person the business cffairs of whom are being investigated. 20

Section 18 presently reads: 18 When a licensed agent is being investigated under

section 16 and the Superintendent is of the opinion that the agent may have misappropriated funds which that agent holds in trust, the Superintendent may by order suspend the licence of that agent. 21

Section 23 presently reads: 23(1) An agent shall keep proper books and accounts of his trades in real estate, and enter in his 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 the parties to the trade, (

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

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

(2) An agent shall (

a) keep a trust ledger in which he shall maintain a separate record for each person on whose behalf he is acting of all (

i) money that he receives in trust, (ii) money that he holds in trust, and (iii) disbursements he makes from money he receives or holds in trust, in respect of a trade in real estate for that person, (

b) forthwith deposit all money he receives in trust in respect of a trade in real estate into an account (

i) maintained in a bank, trust company, credit union or treasury branch, arui Explanatory Notes

(

b) deposit money that he receives in tiust in respect of a tiade in real estate, widiin 2 banking days after he receives the money or widiin any longer period agreed to in writing by the parties to the ttade, in an interest-bearing account tiiat is (

i) maintained in a bank, tiust company, credit union or tteasury branch, and (ii) kept in tiie name of die agent and designated as a tmst account, (

c) keep money he receives or holds in Oust in respect of a tiade in real estate separate from money that belongs to the agent, and (

d) disbmse money he receives or holds in ttust in respect of a ttade in real estate only in accordance witii the regulations and with die terms of die tiust goveming the use of that money.

(3) Where an agent receives money in tmst in respect of a ttade in real estate, he shall ensme that the terms of the tiust goveming the use of the money are in writing and agreed to by tiie parties.

(4) Subject to subsection (5), all money deposited under subsection (2)(

b) shall be kept on deposit in Alberta.

(5) Where an agent (

a) maintains business premises in the City of Lloydminster, (

b) maintains an account designated as a ttust account in a bank, ttust company, tteasury branch or credit union situated in the City of Lloydminster, and (

c) otherwise complies witii subsection (2), subsection (4) does not apply to deposits to die extent tiiat they are made and kept in the account referred to in clause (b).

(6) Where an agent holds money in ttust for more than 2 years after die date on which the person for whom it is held becomes entitied to receive payment of it, and he is unable to locate die person, he shall pay die money to die Foundation. 15

(ii) which is kept in the name of the agent and designated as a trust account, (

c) keep money he receives or holds in trust in respect of a trade in real estate separate from money which belongs to the agent, and (

d) only disburse money he receives or holds in trust in respect of a trade in real estate in accordance with the terms of the trust governing the use of that money.

(3) Subject to subsection (3.1), all money deposited under subsection (2)(

b) shall be kept on deposit in Alberta.

(3.1) Where an agent (

a) maintains business premises in the City of Lloydminster, (

b) maintains an account designated as a trust account in a bank, trust company, treasury branch or credit union situated in the City of Lloydminster, and (

c) otherwise complies with subsection (2), subsection (3) does not apply to deposits to the extent that they are made and kept in the account referred to in clause (b). (4) Subsection (2) does not apply to a security deposit as defined in the Landlord and Tenant Act.

(5) An agent shall account to the Superintendent in accordance with the regulations.

(6) An agent shall preserve his books and accounts of his trades in real estate and his accounting records (

a) for a period of 3 years after the books, accounts or records came into existence, or (

b) for such longer period as the Superintendent directs. (7) Subsections (1) to (5) do not apply to a trust company registered under the Trust Companies Act.

(8) A trust company licensed under this Act and registered under the Trust Companies Act shall furnish to the Superintendent a certified copy of each financial statement of the company prepared for distribution to its shareholders and the auditor's report on the financial statement, within 5 days after they are first mailed or delivered to its shareholders. Explanatory Notes

(7) If at any time a person establishes diat he is entitied to any money paid to the Foundation pmsuant to subsection (6), the Foundation shall pay die money to tiiat person.

(8) An agent shall keep books and accounts of his ttades in real estate and accounting records in accordance witii the regulations and shall preserve those books, accounts and records (

a) for a period of 3 years after the books, accounts or records came into existence, or (

b) for any longer period that the Superintendent duects in a particular case for die purposes of an investigation or prosecution under this Act. (9) Subsections (1), (2), (4) and (5) do not apply to a tmst company registered under the Trust Companies Act.

(10) A tmst company licensed under this Act and registered under the Trust Companies Act shall fumish to the Superintendent a certified copy of each financial statement of the company prepared for distribution to its shareholders and the auditor's report on the financial statement witiiin 5 days after tiiey are first mailed or delivered to its shareholders.

(11) Any waiver or release by a client on whose behalf die agent is acting of the rights, benefits or protections provided to die client under this

section is void. 22 The following is added after

section 25: 25.1 Where there is an agreement between 2 or more agents providing for the sharing of a commission or remuneration payable in respect of a ttade in real estate, only die agent who, by virtue of a written agreement between him and a party to the ttade, is entitied to tiie commission or remuneration may bring an action for recovery of tiie commission or remuneration against tiie person who is Uable to pay it. 23

Section 26 is amended by striking out "A Ucensed person" and substituting "An agent, designated representative". 16

22 Recovery of shared commission. 23

Section 26 presentiy reads: 26 A licensed person or salesman shall not, (

a) subject to

section 27, make a representation to a vendor that he or another person on his behalf will pay to the vendor of real estate within a fixed or determinable period of time, a fixed or determinable amount of money, or Explanatory Notes

Section 28 is amended by adding "or designated representative" after "agent". 25

Section 29 is amended (

a) in subsection (1) by striking out "a licensed person" wherever it occurs and substitiuing "an agent, designated representative"; (

b) in subsection (2) by adding "designated representative or" before "salesman" wherever it occurs. 26

Section 30 is amended (

a) in subsection (1) by striking out "licensed"; (

b) in subsection (2) by adding "designated representative or" before "salesman"; (

c) in subsection (3) by striking out "Ucensed person" wherever it occurs and substituting "agent, designated representative" and by striking out "licensed persons" and substituting "agents, designated representatives". 17

(

b) subject to

section 28, make a representation to a person that he or another person will (

i) obtain a mortgage, lease or loan, (ii) have the term of a mortgage or lease altered, or (iii) assume or assign a mortgage or an agreement for sale. 24

Section 28 presentiy reads: 28 An agent may undertake to (

a) obtain a mortgage, lease or loan, (

b) have a term of a mortgage or lease altered, or (

c) assume or assign a mortgage or an agreement for sale, if the undertaking is set forth in writing and a copy of that undertaking is delivered to the person to whom the uridertaking is made. 25

Section 29 presently reads: 29(1) When advertising to purchase, sell, exchange, or lease any real estate whatsoever a licensed person or salesman shall clearly indicate (

a) that he is the party advertising, and (

b) that he is a licensed person or salesman, as the case may be.

(2) A reference to the name of a salesman in the advertisement of an agent referred to in subsection (1) shall clearly indicate that the real estate agent is the employer of the salesman. 26

Section 30 presentiy reads: 30(1) No licensed person shall trade in real estate as an agent in any name other than that which appears on his licence.

(2) No salesman shall trade in real estate in any rmme other than that of the agent who employs him.

(3) No licensed person or salesman shall trade in real estate (

a) on behalf of himself or another person until he has disclosed in writing to the parties he is dealing with Explanatory Notes

Section 32(

a) is repealed and the following is substituted: (

a) a designated representative or salesman employed by him or to not more than one corporation of which that designated representative or salesman, as the case may be, is the majority shareholder and through which tiiat designated representative or salesman ttades in real estate, 28 The following is added ctfter

section 35: 35.1 No agent, designated representative or salesman may accept a commission, fee or other remuneration as compensation or an inducement for his referral to another person of the name of a party to a ttade in real estate in which he is involved unless, before the referral is made, he discloses in writing to tiiat party the natme of the referral and the amount of the commission, fee or remuneration. 29

Section 37 is amended by striking out "a licensed person" and substituting "an agent, designated representative". 30

Section 50(2) is amended by striking out "a salesman" wherever it occurs and substituting "a designated representative or salesman". 18

(

i) any interest, direct or indirect, that he or any other licensed person or salesman has in the real estate as vendor or purchaser, and (ii) that he is licensed under this Act or employed by a licensed agent, as the case may be, or (

b) on behalf of another licensed person or salesman until he has disclosed in writing to the parties he is dealing with that he arui that other person are licensed persons or salesmen, as the case may be. 27

Section 32(

a) presently reads: 32 A licensed agent shall not pay a commission or other fee for services rendered in connection with a trade in real estate except to (

a) a salesman employed by him, 28 Disclosure of referral fee. 29

Section 37 presently reads: 37 When a licensed person or salesman receives an offer or an acceptance of an offer in writing from a party to a trade in real estate, he shall, as soon as practicable, (

a) provide that party with a true copy of that offer or acceptance, and (

b) deliver a true copy of that offer or acceptance to the other parties to that trade. 30

Section 50(2) presently reads:

(2) In addition to any other fine or penalty imposed, a person who is convicted (

a) of trading in real estate without being a licensed agent or the designated representative or salesman of a licensed agent, contrary to

section 3(1), or Explanatory Notes

31 The following is added after

section 52: 52.1(1) Where an agent's licence is liable to be canceUed or suspended by reason of the operation of

section 8, die agent may enter into an undertaking witii the Superintendent in the form and containing die provisions that the Superintendent considers proper, and, without Umitation, the undertaking may contain specific undertakings by tiie agent (

a) to cease or refrain from engaging in the activity referred to in

section 8, and (

b) to redress any party to a trade in real estate who has suffered loss or damage as a resuU of the activity.

(2) Any time after an agent enters into an undertaking he may request tiie Superintendent to vary or terminate tiiat undertaking and on considering tiie request the Superintendent may vary or terminate tiiat undertaking.

(3) When an undertaking is terminated or varied under subsection (2), tiiat termination or variation does not invaUdate anytiiing done under that undertaking prior to tiie termination or variation.

(4) The Superintendent shaU maintain a pubUc record of all undertakings entered into under diis section.

(5) Notiiing in tiiis

section prevents the Superintendent from cancelUng or suspending a licence under

section 8 instead of entering into an undertaking under tiiis section, but where an agent enters into an undertaking the Superintendent may not cancel or suspend his licence for reasons related to die activity tiiat gave rise to die undertaking as long as die agent complies widi die terms of tiie undertaking. 32

Section 56 is repealed and the following is substituted: 56 The Lieutenant Govemor in Council may make regulations (

a) for die purposes of

section 2(l)(e), exempting a person or a class of persons from die appUcation of this Act, except sections 38 to 49; 19

(

b) of employing a salesman who is not qualified or with respect to whom all assurance fund levies have not been paid, contrary to

section 4, shall return any commission or other remuneration he or a salesman employed by him received from any person on whose behalf he acted while in contravention of those sections. 31 Undertaking to comply. 32

Section 56 presently reads: 56 For the purpose of carrying out this Act according to its true intent and of supplying any deficiency in it. the Lieutenant Governor in Council may make regulations (

a) prescribing Explanatory Notes

(

b) prescribing (

i) die fees payable on applications for Ucences, and (ii) any other fees in connection witii tiie administtation of this Act and the regulations; (

c) respecting die collection and handUng of the fees referred to in clause (

b) and prescribing penalties for die non-payment or late payment of those fees; (

d) establishing different classes of Ucences and specifying the activities authorized by or under and the rights and obUgations attached to each class of Ucence; (

e) establishing different classes of ttades in real estate for the purposes of clause (d); (

f) specifying qualifications additional to the requirements of

section 7 for the obtaining, renewing and holding, and estabUshing conditions precedent to tiie obtaining, of each class of licence; (

g) authorizing the Superintendent to exempt a person or class of persons from tiie definition of agent, and prescribing the terms and conditions under which the Superintendent may grant such an exemption; (

h) exempting from all or any of die provisions of tiiis Act or the regulations Ucensed agents who are limited by die regulations to ttading in mobile homes, and making otiier requirements tiiat are appUcable in the place of those provisions; (

i) respecting the experience, ttaining, education and examination of agents, designated representatives and salesmen; 0) respecting tiie appointment of members of tiie board of govemors of the Foundation, including, widiout Umitation, the number of members, who is to appoint tiiem, the terms of office of members and the filling of vacancies; (

k) goveming die manner in which and the terms and conditions subject to which the Foundation may exercise any of Its powers referred to in

section 15.7; (1) prescribing the fiscal year of die Foundation; (

m) prescribing the quomm at meetings of the board of govemors of die Foundation; 20

(

i) the fees payable on applications for licences, and (ii) any other fees in connection with the administration of this Act arui the regulcuions; (a.

l) establishing different classes of licence according to the criteria prescribed in those regulations, and specifying the activities authorized by or under and the rights arui obligations attached to each class of licence; (a.2) specifying qualifications required for the obtaining and holding, and establishing conditions precedent to the obtaining, of each class of licence that are additional to the requirements of

section 7; (

b) prescribing the practice and procedure on an investigation under sections 16 to 22; (

c) respecting the experience, training, education arui examination of agents arui salesmen; (c.Ol) respecting the register referred to in

section 15.4(4) and the registration of salesmen in the Fund; (c.02) requiring an agent to provide insurance against his liability for errors and omissions in the carrying on of his agency business; (c.

l) respecting the administration of the Fund and the levy of assessments for the Fund; (c.2) prescribing the conditions to be met before any claim is paid from the Fund; (c.3) respecting the limits of liability of the Furui; (c.4) prescribing the time witiun which claims against the Fund must be made; (c.5) prescribing the amount referred to in

section 15.3; (c.6) respecting the winding-up of the Fund under

section 15.3; (c.7) respecting the forfeiture of bonds provided under

section 15.3 or 41(e); (

d) prescribing the information to be contained in a prospectus required to be filed under

section 38 or 48; (d.

l) prescribing any matter or thing that by this Act may be or is to be prescribed by regulations, other than regulations to be made by the Minister; Explanatory Notes

(

n) providing for the circumstances under which and die manner in which die Foundation may be wound up; (

o) prescribing the factors die Superintendent must or may take into account in taking action under

section 8(l)(e); (

p) prescribing the practice and procedure in an investigation under sections 16 to 22; (

q) providmg for the regulation of die operation of branch offices; (

r) respecting die contents of advertisements for a purchase, sale or exchange of real estate and the manner in which advertising may be carried out; (

s) respecting the provision of information and documents by agents and their designated representatives and salesmen to parties to trades in real estate and respecting the manner in which and die circumstances under which that information and those documents are to be provided; (

t) requiring, or authorizing the Superintendent to require, agents or their designated representatives or salesmen to file witii the Superintendent copies of documents relating to ttades in real estate; (

u) respecting the purposes for which the money in tiie Fund diat is in excess of the amount prescribed under clause (cc) may be used; (

v) requiring licensed agents, designated representatives and salesrnen or any of them to provide insmance du-ough die Association against tiieir liabUity for errors and omissions in the carrying on of their real estate business, or to participate in an indemnity plan for that purpose; (

w) authorizing the Association to estabUsh and administer an insurance or indemnity plan within the meaning of

section 14(1. l)(

a) and respecting all matters necessarily related to the estabUshment and administtation of such a plan; (

x) respecting die register referred to in

section 15.4(4) and the registiation of persons in the Fund; (

y) respecting die administtation of die Fund and die levy and coUection of assessments for die Fund; (

z) prescribing the conditions to be met before any claim is paid from die Fund; 21

(

e) generally for the better carrying out of the provisions of this Act arui the more efficient administration of it. Explanatory Notes

(aa) respecting the limits of UabiUty of die Fund; (bb) prescribing die time widiin which claims against the Fund must be made; (cc) prescribing the amount referred to in

section 14(1.1); (dd) respecting die winding-up of die Fund under

section 15.3; (ee) respecting the forfeitme of bonds provided under

section 15.3 or 41(e); (ff) providing for the manner of disposition of property of the Foundation for the purposes of

section 15.95; (gg) prescribing the information to be contained in a prospecms required to be fded under

section 38 or 48; (hh) prescribing any matter or thing that by this Act may be or is to be prescribed by regulations, other than by regulations to be made by die Minister; (ii) generally for the better carrying out of the provisions of this Act and the more efficient administtation of it. 33

Section 57 is repealed and the following is substituted: 57 The Minister may make regulations (

a) requiring tiie use of standard forms for matters related to ttades in real estate and prescribing diose forms; (

b) respecting the amount and form of bonds to be fumished under diis Act; (

c) respecting the form and contents of an affidavit required under

section 11(1); (

d) requiring diat specified types of ttades in real estate be evidenced by an agreement in writing and requiring diat such an agreement contain specified provisions; (

e) goveming, in addition to die requirements of

section 23, die types of records, accounts and books of account to be kept, and the accounting principles to be followed, by agents m respect of ttades in real estate and die operation of ttust and other accounts; (

f) requiring an agent to account to die Superintendent in respect of his books and accounts under

section 23, and 22

Section 57 presently reads: 57 The Minister may make regulations respecting (

a) forms and their contents; (

b) the amount and form of bonds to be furnished under this Act; (

c) the form and content of an affidavit required under

section 11(1); (

d) for the purposes of

section 23(5), the times at which and the manner in which an accounting shall be made and the information to be provided; (

e) any matter or thing that by this Act may be or is to be prescribed by regulations to be made by the Minister. Explanatory Notes

respecting die times at which and die manner in which die accounting must be made and the information that must be provided; (

g) respecting die manner in which and die times at which a bank, ttust company, credit union or tteasury branch must pay interest to die Foundation, for the purposes of

section 15.92(3); (

h) defining "annual net revenue" of die Foundation for die purposes of

section 15.6(2); (

i) prescribing the percentage of annual net revenue for die purposes of

section 15.6(2); (

j) ftuther defining "branch office"; (

k) goveming the keeping by the Foundation of books and accoimts respecting its operations; (1) prescribing any matter or thing that by this Act may be or is to be prescribed by regulations made by die Minister. 34(1) In the following provisions ", designated representative" is added after "agent" wherever it occurs:

section 16(l)(a)(u);

section 33;

section 35(1);

section 38(2.1);

section 40(1).

(2) In the following provisions "designated representative or" is added before "salesman":

section 3(l)(a);

section 31(

a) and (b);

section 34;

section 54. 35 This Act comes into force on Proclamation. 23

34 Makes certain provisions applicable to designated representatives. 35 Coming into force. Explanatory Notes Title: 1990 (22nd 2nd) Bill 16, Real Estate Agents' Licensing Amendment Act, 1990

Document details

Collection	Alberta — Bills
Citation	L22 S2 2691
Type	bill
Volume / chapter	L22 S2 2691
Language	en
Format	json
Source	PROVINCIAL
Identifier	cc93afaf27a60749d70f4c339193f6f4293e1113

Source file is stored in the law ingest library (json).