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February 2013 Report from Council Newsletter
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A licensee acting for a buyer or seller in a transaction that involves a “stream” (as defined below) on the subject property or neighbouring property should be aware that the Riparian Areas Regulation (RAR) could have a significant effect on the value and potential use or development of the property because of legislated building/development setbacks and other requirements protecting riparian areas, including riparian vegetation and fish habitat.
A “stream” in the province of BC is broadly defined in the RAR to include the following that provides fish habitat:
(a) a watercourse, whether it usually contains water or not;
(b) a pond, lake, river, creek or brook;
(c) a ditch, spring or wetland that is connected by surface flow to something referred to in paragraph (a) or (b);
Riparian vegetation and streams are protected by the Federal Fisheries Act; the Provincial Fish Protection Act, and the Water Act. Municipal bylaws may also apply.
While licensees are not expected to be experts in the RAR, they are expected to be alert to the implications of RAR and are obliged to advise clients who are buying, selling or developing property that is impacted by the legislation to seek independent professional advice
In instances where a “stream”, as defined above, is present, licensees drafting Contracts of Purchase and Sale should incorporate the following clause:
Fish Protection Act Clause
Subject to the Buyer receiving and approving independent professional advice concerning any limitations on the use and/or development of the property resulting from the Fish Protection Act, by (date).
This condition is for the sole benefit of the Buyer.
If the RAR applies to a property, the local government will require the riparian area and development to first be assessed by a Qualified Environmental Professional (QEP), such as a Registered Professional Biologist (R.P.Bio.), to determine a Streamside Protection and Enhancement Area (SPEA), which is defined as a setback that protects degradation of fish habitat. The SPEA is delineated by a QEP as part of the RAR to protect fish habitat from land alteration, including consideration of sediment and erosion control, damage or alteration of vegetation, and trails and landscaping.
For a list of regional districts and municipalities where the RAR applies, visit:
- www.env.gov.bc.ca/habitat/fish_protection_act/riparian/documents/applicable_regulations_table.pdf
For more information about riparian areas, visit:
- www.env.gov.bc.ca/habitat/fish_protection_act/riparian/riparian_areas.html
- www.livingbywater.ca
- www.stewardshipcentre.bc.ca
The provisions of the Real Estate Services Act requiring the licensing of strata managers came into effect on January 1, 2006. In anticipation of the introduction of strata management licensing requirements, the Council had collaborated with the Real Estate Division at the Sauder School of Business at UBC to develop a Strata Management Licensing Course. Changes to strata management practice since that time, have included among other things, the continually increasing share of condominiums in BC’s housing stock, the increasing prevalence of sections in strata developments, and the introduction of new Strata Property Act regulations requiring depreciation reports and a revised Form B disclosure.
While the course has been, and continues to be, updated to include material regarding these and other industry changes, the Council and the Real Estate Division are undertaking a review of the Strata Management Licensing Course. In addition to input from various organizations and individuals representing owners, managers and the regulatory environment, the Council and the Real Estate Division are currently seeking input from strata management Managing Brokers and representatives.
The course review is intended to provide recommendations that will lead to a comprehensive revision of the Strata Management Licensing Course curriculum. Any suggestions or comments can be directed to Caroline Allen, Education & Licensing Officer at callen@recbc.ca.
The lead article in this newsletter contains an important reminder about the Riparian Area Regulation (RAR). Licensees should be aware that the RAR could have a significant effect on the value and potential use or development of the property because of legislated building/development setbacks and other requirements protecting riparian areas, including riparian vegetation and fish habitat. While licensees are not expected to be experts in the RAR, they are expected to be alert to the implications of the RAR and are obliged to advise clients who are buying, selling or developing property that is impacted by the legislation to seek independent professional advice.
Page 3 of this newsletter contains a follow-up to the December 2012 Report from Council article on the topic of self-regulation of the real estate industry in British Columbia. Self-regulation is a great accomplishment for the industry, but with this authority comes the obligation to regulate ourselves in a manner that is deserving of the public trust. Licensees must do their part by always holding themselves to the highest ethical standards and to always ensure that they put the interests of their clients first.
The annual Council elections are coming up in May and the Council is currently seeking nominations to fill positions where vacancies will exist. In keeping with the practice of the past two years, the Council is including nomination information and a nomination form in the middle of this newsletter. I encourage licensees to take a few minutes and consider nominating qualified individuals to serve on the Council in districts where a vacancy will exist.
Licensees will note that this Report contains a large number of disciplinary decisions. While the large number of decisions is concerning, the Council is even more concerned with the serious nature of some of the conduct that gave rise to the discipline decisions, including:
- Mortgage fraud
- Falsified contracts and unauthorized signatures on Contracts
- Failure to notify the Council of criminal charges/convictions
- Unlicensed rental property management activity
- Failing to provide records in a timely manner to managing brokers
- Failure of brokerages to maintain proper books and records
The Council will not tolerate any kind of mortgage or contract fraud committed by licensees and the penalties handed down reflect this.
Finally, on behalf of the Council, I hope that you enjoy a prosperous and successful year.
Michael Ziegler,
Chair
The Council office will be closed on the following dates:
- Monday, February 11, 2013 for Family Day
- Friday, March 29, 2013 for Good Friday
- Monday, April 1, 2013 for Easter Monday
The December 2012 Report from Council newsletter discussed the self-regulation of the real estate industry in BC. It was noted that self-regulation is based on the concept of an occupational group entering into an agreement with government to formally regulate the activities of its licensees. Professional self-regulation is a regulatory model which enables government to have some control over the practice of a profession and the services provided by its licensees but without having to maintain the special in-depth expertise required to regulate a profession that would be required under direct regulation.
Whether stated explicitly in the enabling legislation or implicit in such legislation is the principle that professional self-regulation is in the interest of the public. Although professional regulation has some benefits for the profession, its essential raison d’être is to protect the public, not to enhance the status of the profession. It is expected that all of a regulatory body’s decisions and activities will be done in the “public interest.” In other words, the primary purpose behind all regulatory body actions should be to protect the public from incompetent or unethical practitioners, not to forward the interests of the profession.
In a technical sense, self-regulation means that there exists legislation that delegates provincial powers of regulation to a regulatory body. It means that the government has entrusted the profession to regulate itself in a manner that is consistent with the public interest. Joining the ranks of the regulated professions is an achievement that the real estate industry in BC can be proud of, but with this authority also comes the obligation to regulate ourselves in a manner that is deserving of this public trust.
In addition to the responsibilities placed on the Real Estate Council there is, however, a second and equally important component of the self-regulatory model that cannot be overlooked-real estate licensees. Licensees themselves have a vested interest in the proper functioning of the real estate industry in BC. While the industry can gain substantial benefits from self-regulation, including professional prestige and greater autonomy to set entry requirements and standards of practice, the inappropriate acts of one licensee can have significant negative effects on the entire industry and can diminish the image of the industry as a whole. It is in the industry’s best interests that the incompetent and unethical be disciplined or removed. Not only does the industry have a duty to ensure its proper operation in the public interest, but it also must ensure that the public perceives this to be the case. If the industry is unable to properly self-govern, its self-regulating status can be removed.
The importance of the role of licensees in the self-regulation of the real estate industry cannot be over-emphasized. Licensees have an ongoing obligation to act honestly and to exercise reasonable care and skill in all of their real estate dealings. In addition, when engaged by a client to provide real estate services, they must do all of the following:
- act in the best interests of the client;
- act in accordance with the lawful instructions of the client;
- act only within the scope of the authority given by the client;
- advise the client to seek independent professional advice on matters outside of the expertise of the licensee;
- maintain the confidentiality of information respecting the client;
- disclose to the client all known material information respecting the real estate services, and the real estate and the trade in real estate to which the services relate;
- communicate all offers to the client in a timely, objective and unbiased manner;
- use reasonable efforts to discover relevant facts respecting any real estate that the client is considering acquiring;
- take reasonable steps to avoid any conflict of interest;
- if a conflict of interest does exist, promptly and fully disclose the conflict to the client.
The two components of an effective self-regulatory model-the regulator and real estate licensees-together play an integral role. By operating together, they achieve the common goal of building the real estate profession while at the same time protecting the public interest. This collaborative approach has been a cornerstone of BC’s real estate industry for decades and continues to this day.
Self-regulating status is a privilege granted to a profession in order to serve the public interest. The responsibility falls to each licensee to accept legal and ethical responsibility for their work and hold the interest of the public and society as paramount. Individual licensees also have the responsibility to participate, together with the regulatory body, in the development and maintenance of the industry to keep it strong and healthy for the future. In this way, they ensure the continued viability of the industry and themselves as professional practitioners.
In the December 2012 Report from Council newsletter, licensees were reminded of their obligation to promptly provide their related brokerages with copies of listing agreements, contracts for the acquisition and disposition of real estate, buyer agency agreements, disclosure statements, and information necessary to complete the trade record sheet.
As a result of that article, a number of licensees have inquired as to individual licensee’s requirements to retain their copies of files given that the brokerage has all the requisite documentation in the brokerage file. Generally speaking, once the brokerage has received all of the requisite documentation from the licensee, the individual licensee’s record keeping requirements under the Real Estate Services Act have been satisfied. However, licensees should consider retaining their records for a minimum of seven years, which is the same length of time that the Council advises brokerages to retain records under the Council Rules.
Licensees should be aware that other agencies, such as the Canada Revenue Agency, may have specific record keeping requirements. In that regard, licensees should consider seeking professional advice with respect to retention of records for their specific circumstances.
February 2013
TO: ALL REAL ESTATE LICENSEES
RE: NOTICE OF ELECTION-REAL ESTATE COUNCIL MEMBER NOMINATIONS
Council Composition
The Council is comprised of 16 members, three of which are public members appointed by the provincial government. The remaining 13 members are chosen through an election process. Of the 13 elected members, nine are managing brokers or associate brokers, three are representatives and one is the rental property management/strata management representative. Council members represent all eight counties in the province by way of Districts pursuant to section 76 of the Real Estate Services Act (RESA) and are elected for two-year terms, with about half of the Council elected each year, thus ensuring continuity.
This Year’s Election
This year, the term of office for the following Council members expires on June 30, 2013. As a result, elections to fill vacancies for a two-year term will be held on May 8, 2013.
Managing Broker/Associate Broker Members
- In District #1 (County of Vancouver), the term of Patrick O’Donnell expires.
- In District #2 (County of Victoria), the term of Michael Ziegler expires.
- In District #6 (County of Yale), the term of Bryon Brandle expires.
- In District #7 (Combined Counties of Kootenay, Cariboo and Prince Rupert), the term of Susan Lynch expires.
Only individuals licensed at the managing broker or associate broker level may nominate other managing brokers or associate brokers as candidates.
Representative Members
- In District #1 (County of Vancouver), the term of Abdul Ghouri expires.
- In Districts #4 and #5 (County of Westminster North of the Fraser River and County of Westminster South of the Fraser River), the term of Marylou Leslie expires.
Only individuals licensed at the representative level may nominate other representatives as candidates.
Rental Property Management/Strata Management Member
- The term for the rental property management/strata management representative, Garth Cambrey of Port Coquitlam, expires.
Only individuals licensed to provide rental property management services and/or strata management services may nominate a candidate for election as the rental property management/strata management member.
From the above, you will note that there will be no election for a managing broker/associate broker in Districts #3, #4 and #5 (Counties of Nanaimo and Westminster-North and South of the Fraser River), and no election for a representative member in Districts #2, #3, #6 and #7 (Counties of Victoria, Nanaimo, Yale, Kootenay, Cariboo and Prince Rupert).
Nomination and Election Process
Pursuant to section 2-3 of the Real Estate Services Act General Bylaws, every licensee is receiving this Notice of Election, as well as a nomination form. Where a vacancy exists, the attached nomination form must be used by those licensees who wish to be a candidate or to nominate a candidate. Candidates nominated for election for a District must be licensed at a location in that District.
Nominations must be received at the Council office not later than 4:30 p.m. on Tuesday, April 2, 2013. It would assist in the preparation of the election material if nominations could be returned as soon as possible. Voting papers, together with a biographical summary of each candidate, will be mailed to all licensees (where elections are being held) in mid-April and must be received in the Council office not later than Tuesday, May 7, 2013. The ballots will be counted on Wednesday, May 8, 2013.
Please see below for detailed information on the roles and responsibilities of Council members.
Yours truly,
Robert O. Fawcett
Executive Officer
Council Member Roles and Responsibilities
Question Answer What is the Real Estate Council? The Real Estate Council of British Columbia (“Council”) is a regulatory agency established by the provincial government. Its mandate is to protect the public interest by enforcing the licensing and licensee conduct requirements of the Real Estate Services Act (RESA), Regulation and Council Rules. The Council is responsible for licensing individuals and brokerages engaged in real estate sales, rental property management and strata management. The Council also enforces entry qualifications, investigates complaints against licensees and imposes disciplinary sanctions under RESA. A Chair and Vice-Chair are elected annually by the members of the Council. What is the role of Council Members? Briefly stated, the role of a Council member is to uphold the licence law administered by the Real Estate Council. This involves reviewing complaint files, sitting on Hearing Committees and determining appropriate penalties for contraventions of RESA. In addition to administering licence law, Council members also advise on matters relating to legislative amendments, industry practice and policy. Who is eligible to serve on Council? Any licensee in the province is eligible to serve on the Council; however, those elected have traditionally been individuals of broad experience who enjoy the professional respect of other licensees. During the election process, only representatives may nominate other representatives as candidates, and only managing brokers or associate brokers may nominate other managing brokers or associate brokers as candidates. Candidates nominated for election for a particular District must be licensed at a location in that District. A map showing the eight Counties on which the District boundaries are based may be viewed on the Council’s website at www.recbc.ca. What is the length of a term on Council? Council members are elected for two-year terms, with half of the Council elected each year, thus ensuring continuity. Under section 77 of RESA, Council members may not serve more than six consecutive years. Do I require any special training? As noted above, Council members are generally real estate professionals with many years of professional experience. Some special training is required for specific Council member duties, including hearing procedures and administrative law. This training, however, is provided to Council members. What is the time commitment? The following is a general list of the major time commitments expected of Council members:
- There are usually seven meetings of the entire Council each year. These are all-day meetings that are generally held in Vancouver.
- Council members usually serve on two committees/advisory groups (i.e. Education & Licensing, Trading Services, Property Management). These committees/advisory groups generally meet in advance of Council meetings, either by conference call or in person at the Council office.
- Council members serve on the Complaints Committee for about three months per year. This Committee meets to review complaints and recommend future action for the various files (e.g. dismissal, a letter of warning or a hearing). In preparation for these meetings, Committee members typically spend six to eight hours reading and reviewing complaint files.
- Council members serve on various Hearing Committees with formal hearings generally lasting one or two days.
- Council members also participate in various training sessions and conferences held periodically throughout the year.
Prospective Council members are encouraged to contact an existing or retiring Council member in the District in which they are licensed. It is hoped that this contact will provide a clear perspective of travel and time commitments. A list of current Council members can be found on the Council’s website at www.recbc.ca.Are there any restrictions to serving on Council? In order to reduce any potential conflict of interest, members of the Council must not sit as a director, officer or employee of another real estate organization (e.g. British Columbia Real Estate Association or any of its 11 member boards). How does the election process work? If you are interested in becoming a Council member, you must complete the nomination form below and return it to the Council office by 4:30 p.m. on Tuesday, April 2, 2013. The election will be held Wednesday, May 8, 2013, with those elected taking office July 1, 2013. Where can I get further information? For further information about the roles and responsibilities of Council members, please contact Robert O. Fawcett, Executive Officer at the Council office at 604-683-9664, toll-free 1-877-683-9664 or email rfawcett@recbc.ca. Since the December 2012 Report from Council newsletter, the following actions have been taken as a result of disciplinary hearings and Consent Orders conducted by the Council.
Trading Services
- Darin Edward Nielsen
- Surinderjit (Serge) Singh Rai
- Mark Harvey Boppre
- Jagmohan Singh Bhandari
- Jordan Wayne Thor Hurdal
- Riley Ian Twyford, Royal LePage Downtown Realty
- Jun (Michael) Hua
- Calvin Johnson Carr
- Neha Rani Kwatra
- Qiang (Sean) Yin
- Alan Norris Bainbridge
- Lisa Lillian Wainwright
- Gursharan (Gary) Singh Panesar
- Brenda Lee Crawford, Realty Executives Princeton
Rental Management
- Moonkyu (Sunny) Rim
- Sandra Elaine Riishede, Achieve Properties Ltd.
- Chi-Fu Chen, Pilothouse Real Estate Inc.
- Wah Hing Anita Wong, ANK Properties
- Daniel (Dan) John tenBrink
Strata Management
- Carol Yvonne Youngberg, Desert Aire Realty
- Elizabeth (Betty) Joy Eaton
- James Ashley Henry, British Columbia Strata Management Inc.