The Property Services Regulatory Authority was established on a shadow basis in 2009. It followed concern regarding the shortcoming in regulation and supervisory arrangements.
The pre-existing District court based licensing system was reformed by the creation of a Regulatory Authority in the style of the financial services regulator / Central Bank. Prior to the act, several professional bodies had instituted codes of practice and complaints procedures on a non-statutory basis.
The Authority was formally established, and its functions are specified in the 2011 act. The Authority had been operational on a shadow basis from 2009 prior to enactment of the legislation.
The Authority is appointed by the Minister. The members of the Authority are appointed by the minister. The Minister must seek to ensure gender balance. Appointees are to have knowledge and experience of matters relevant to its function. It must prepare strategic plans every three years setting out its key objectives and related strategies. They are required to be laid before the houses of the Oireachtas.
The legislation provides for chief executive staff, employment arrangements and superannuation. The chief executive is to submit estimates to the Minister. The chief executive must account to the committee on public accounts in relation to the Authority’s accounts and matters raised by the Controller and Auditor General. The chief executive is also accountable to other committees of the houses of the Oireachtas when asked to do so.
The functions of the Authority include
- establishment of a register of licenses,
- issue and renewal of licenses,
- specification and enforcement of qualification standards
- education and training,
- the requisite standards including professional indemnity insurance
- enforcement of standards to be observed by licences
- maintenance of the property services compensation fund
- establishment of a system of investigation,
- promotion and development of codes of practice, promoting public awareness.
The Authority may, with the approval of the Minister, appoint advisory committees, advisors and consultants to assist it.
Property services under the act refer to the provision in the state of any of the following kinds of services,
- auction of property other than land,
- purchase and sale of land,
- letting of land,
- property management services.
The property services employer and individual persons providing services as employees and independent contractors must be licensed. A licence is required irrespective of whether the services are provided in the state or otherwise.
Property management services are services in respect of the management of a multiunit development carried out on behalf of a management company. The management company may be either the original developer prior to handover of the common parts or the entity established to manage and maintain the common parts.
The Authority maintains a register. Licensees are obliged to notify changes and errors to the Authority.
The application form for a licence is in a form prescribed. The applicant must have the requisite character and competence including education, training and experience.
Licences are issued annually. There is no property in them, and they may not be transferred.
It is a condition of a license issued to a company or a partnership that the licensee takes steps or reasonable steps to ensure that the principal officers of the company or partnership are fit and proper persons to hold the requisite position. Failure to do so is a contravention.
Applicants must be over 18. The fit and proper person must not be an un-discharged bankrupt. The same requirements apply to officers of a body cooperate.
If a licence is refused, the Authority must give the applicants then an opportunity to make representation. An appeal may be made to an appeal board. Due process provisions apply.
Licences must be renewed annually. The requirements for the grant of a licence are applicable to renewal. There must be an accountant’s certificate confirming proper financial systems accounting and control. Special indemnity insurance must be maintained.
A licensee must have a licence in his possession. He may be requested to produce it when providing a property service. In the case of a company, it must be displayed for inspection at the principal place of business. The duplicate is to be displayed in other offices where the company provides a service.
A property services employer or independent contractor must display his or her registration number in an advertisement of sales, brochures, business correspondence and signs erected on or near land respect of which he is providing a property service. Where an auction is being conducted otherwise than at the licensee\’s place of business, a duplicate of the license must be displayed.
Where an employee is conducting an auction at a place other than the employer\’s place of business, the employer and employee\’s license must be displayed.
It is an offence to produce for inspection or permit inspection of another person\’s license, to use a document purporting to be a license or use an altered license, with intent to deceive. Where a person is convicted of an offence under the legislation, the court may order all licences be revoked and that the licensee be prohibited from applying for a licence for a period.
Where a licensee is adjudicated bankrupt, his license is suspended until the expiry of bankruptcy or discharge.
Obligations of Licensees
A licensee must notify the Authority of any material matter which may affect the validity of his license. This includes any conviction or pending proceedings in respect of an offence. The obligation applies in respect of the principal officers of a corporate licensee.
If a licensee must issue a letter of engagement to all clients within three working days of providing or agreeing to provide a property service. It must contain the information set out in the schedule to the Act. If the client does not sign and return the letter within seven working days, the licensee must cease or not provide services. The engagement letter becomes the property services agreement.
A licensee must keep records of all property services provided by him for a six-year period. They are to be kept in the form as specified by the Authority.
The Authority may, and if requested by the Minister shall, draw up a code of practice or approve a code of practice published by the representative body for the purpose of setting standards and providing practical advice for the provision of property services.
The Authority is to engage in consultations before approval of a code. The Minister must approve the codes. Breach of the code does not render the licenses subject to similar criminal proceedings in itself but may be admissible as evidence in relation to civil or criminal matters under the Act or in the context of services provided which are regulated by the Act.
Regulations are made by the Authority for the keeping and preservation of the client accounts and records. They may deal with the kinds of bank accounts, record keeping and other obligations in respect of client accounts. They may deal with the circumstances in which money other than client\’s money may be paid into a client account, and the circumstances and processes and for whom monies may be paid out of client account.
They may deal with
- accounting records,
- client entitlements,
- statement of interest,
- income and profit on client\’s monies,
- circumstances in which a licensee may be required to pay monies to a client account, examination by auditors of accounts,
- examination by on behalf of the Authority of accounts and the financial circumstances of the licensee insofar such circumstances could affect the licensee capacity to provide property services.
Client Money II
It is an offence knowingly to lodge client money to a non-client account. It is an offence to knowingly make a false or misleading entry or record in accounting records. Where a licensee is convicted of an offence, the court may order that all licences held by the licensee may be revoked and he may be restrained from applying for a new license. This applies in the case of a summary offence. In the case of an indictable offence, the court shall order all licenses to be revoked etc.
The Authority may apply to the High Court for orders with a view to protecting client accounts where an Authority refuses to renew a license or a license is suspended or revoked or where the Authority is satisfied the licensee has ceased to provide property services.
No person is to have the right to the money in a client account until the client has been paid all monies owing from the account. The licensee may retain rights of recourse against any monies owed to him from a client account, subject to conditions.
Client Money III
Monies vest in the official assignee for the benefit of clients when a licensee is adjudicated bankrupt. Monies in the client account do not form part of the bankruptcy estate. Where there is a shortfall, it is to provide a proportion amongst clients.
Where adequate arrangements have not been made for the return of client monies on the refusal of renewal of a licence.
A certificate must be provided by an accountant that the proper financial systems and controls are or will be in place for the protection of client money. Proof of the requisite professional indemnity cover must be provided. The relevant application fees must be paid.
The Authority may require additional information in respect of any of the above matters. They may be required to be verified by affidavit. Generally, the requisite information and proofs must be furnished by the principal officer. A tax clearance certificate is required.
Minor sanctions are one or a combination of a reprimand, warning, caution or advice. A major sanction is one or more of a combination of licence revocation, suspension, payment up to €50,000 to the property services compensation fund and financial penalties up to €250,000 and payment of the cost to a maximum of €50,000.
It is an offence and misconduct to provide a property service without a licence or to provide a property service without a licence of the appropriate kind for that service.