2011 legislation provided a comprehensive licensing system covering all property service providers (PSPs). It provided for
- a system of investigation and adjudication on complaints against PSPs,
- the audit and inspection of PSP operations,
- the maintenance of minimum qualification and standards.
The Court based system was replaced. A modern system of direct regulation by a regulator was substituted.
The authority became the sole body involved in issuing a licensed. The requirement for an application to Court and or Revenue Commissioners was discontinued.
Property Services Regulatory Authority
The Property Services Regulatory Authority (“PSRA”) was established on an interim basis pending establishment by legislation. The PSRA was a response to the inadequate and outdated nature of the previous regulation. The system of regulation arose from the recommendations of the auctioneering and estate agency review group.
The legislation applies to property service provides. These will either be companies, persons, sole traders or employees involved in:
- Purchase/sale by whatever means of any land including buildings wherever situate (Ireland or abroad);
- The auction of private property other than land;
- The letting of any property;
- The provision of property management services.
Auctioneers, estate agents letting agents and property management agents are regulated by the authority. It covers property situate in Ireland as well as transactions in Ireland relating to property abroad.
All applicants will have to satisfy their competence through educational qualifications and/or experience in order to obtain a licence.
- Applicants will have to satisfy the authority of their suitability in terms of character;
- Financial standing will be examined as will tax compliance;
- Licensees must have professional indemnity insurance and make a contribution to a statutory compensation fund;
- An appropriate licensing fee will be payable.
The licensing system was simplified but became much more rigorous than before.
The authority is empowered to investigate complaints made and institute investigations itself for the purpose of ensuring compliance with the law and codes. A person may make a complaint in writing against a PSP in relation to a property service. A complained form exists.
The authority must investigate complaints unless it is satisfied:
- That it is not made in good faith;
- That is frivolous, vexatious or without substance or foundation;
- It is likely to be resolved by mediation or informally.
If an investigation is required, the authority must appoint an inspector. The inspector has powers to:
- Require persons to supply information and records;
- Question any person for the investigation;
- Enter, inspect, examine and search any place in connection with the provision of a property service;
- Require the PSP his employees or agents to inspect documents and accounts;
- Be accompanied by a member of an Garda Siochana.
Upon completion of the investigation if the authority is satisfied that the PSP has engaged improper conduct it may do any of the following:
- Issue a demand warning caution or advice;
- Revoke the licence;
- Suspend the licence;
- Direct PSP to pay sums;
- Up to €50,000 to the PSP compensation fund;
- Up to €50,000 towards the cost of investigation;
- Up to €250,000 to the authority by way of a financial penalty
- Or a combination of the above.
The legislation provides a range of offences. It is an offence to provide a service without a licence or to obstruct an investigation, mismanage client’s funds.
Offences are prosecutable summarily with a fine of up to €5,000 or 12 months in prison or on indictment with a fine of up to €50,000 or five years in prison.
Standards and Codes of Conduct
The authority sets the standards for the provision of a property service. A code of practice sets standards of ethical behaviour and details how property services providers should deal with each other, their clients and the public.
The authority has produced a code of practice for property service providers available on their website at www.npsra.ie. The code is voluntary pending enactment of the legislation.
The code contains detailed provision in relation to conflict of interest, confidentiality, competency and professional development, insurance, conduct of business record of offers, advertising, direct marketing, relationship with client, client accounts, information to be supplied to the public, information to be supplied to customers, duties to customers, disciplinary boards, complaints sanctions.
Property services agreements must contain certain details and information. This is set out in the schedule to the legislation.
Part XII of the Act provides for a Property Price Register. This was provided for in the bill during the course of its passage through the Oireachtas.
The Authority is to establish and maintain a Residential Property Price Register. It is to include details of the address, price, and date of sale. The particulars may relate to all residential properties in the state or a class of properties. The Register is to be made available for inspection free of charge on the Authority’s website.
The Authority is to establish a commercial leases database. This is to be in such form as the Authority thinks fit. In respect of each lease in force, it is to contain particulars of the date of the lease, term, rent and other prescribed particulars.
The commercial lease database is to be available for inspection by persons on an appropriate fee at the Authority\’s principal offices. It is to be available on the website in a manner that is readily accessible.
The tenant under a relevant commercial lease shall within the relevant period following the day in which stamping certificate is received, give notice to the Authority in the specified form setting out the following details:
- date of commencement,
- capital consideration,
- the frequency of rent review,
- particulars of who is liable for rates, repair, insurance, service charge,
- net floor area per each floor of the property,
- particulars of rent-free periods, a fitting out allowances, capital contributions,
- any break, loss, and release,
- the stamp certificate number,
- such other prescribed particulars.
Where a rent review has been determined in respect of a relevant commercial lease, the tenant under the lease or other persons appointed by him shall be within the relevant period following the day of determination give the Authority a notice setting out particulars of the rent review, particulars of an variation made to release and such other particulars as may be subscribed.
Where a tenant ceases to have to an interest in commercial property, subject to a commercial lease the tenant shall within the relevant period gave notice to the Authority setting out particulars of cessation of the lease.
Any provision in the contract or agreement which has the object or effect of preventing or restricting disclosure of the above information is ineffective. A person who without reasonable excuse, contravenes the above obligation is guilty of an offence and is liable on summary conviction to a Class A fine. The relevant period is 30 days or such other period as may be prescribed.