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| This archived statute consolidation is current to November 10, 1992 and includes changes enacted and in force by that date. |
1. In this Act
"agent" means a person who, on behalf of another, for or in expectation of a fee, gain or reward, direct or indirect, from any person,
(a) in any manner acquires or disposes of real estate;
(b) in any manner offers, or attempts, to acquire or dispose of real estate;
(c) negotiates or offers to negotiate a loan secured, or to be secured, by a charge on, or transfer of, real estate;
(d) collects or attempts to collect money secured by a charge on, or transfer of, real estate, or money payable as rent for the use of real estate;
(e) offers to collect money secured by a charge on, or transfer, of real estate, or money payable as rent for the use of real estate;
(f) is not exempted by the superintendent and solicits, for listing, real estate for sale or lease; or
(g) is not exempted by the superintendent and solicits or procures publication, or promises to publish or procure the publication, of any printed advertisement or circular concerning real estate transactions,
but does not include a listing service operated by and for licensed agents;
"board" means the board of governors of the foundation;
"business" means an undertaking carried on for gain or profit, but does not include an undertaking which consists solely of the leasing of, or the granting of a licence to occupy
(a) a dwelling in, or the whole of, not more than one duplex, that is to say, a building comprising not more than 2 private dwellings; or
(b) not more than one single family dwelling house, or not more than one room or one suite of rooms in what is otherwise a single family dwelling house,
by the owner or lessee of the duplex or dwelling house;
"client" means a person or body of persons on whose behalf an agent receives money in connection with his business;
"cooperative corporation" includes a housing cooperative under the Cooperative Association Act, and any other corporation as defined in the Company Act that is the owner of land, where a majority of the persons entitled to occupy all or a portion of that land, or the buildings on it, is, or is intended or entitled to become, the shareholders or owners, directly or indirectly, of that corporation;
"cooperative unit" means the interest of a person in a cooperative corporation that includes
(a) a right to use or occupy a part of the land that the cooperative corporation owns or has an interest in; or
(b) a present or future right of ownership of one or more shares of, or other evidence of ownership of, an interest in the cooperative corporation;
"council" means the Real Estate Council constituted under this Act;
["customer" means a person or body of persons from whom a manufactured home dealer receives money in connection with his business;]
"foundation" means the Real Estate Foundation established under this Act;
"licensee" means a person licensed under this Act;
["manufactured home" means a manufactured home as defined in the Manufactured Home Act;]
["manufactured home dealer" means a person who acquires, disposes of, exchanges, trades, leases or otherwise deals in manufactured homes in the ordinary course of his business or pursuant to a scheme or plan for profit;]
"money" includes currency, government or bank notes, cheques, drafts, post office, express and bank money orders;
"nominee" means an individual nominated by an agent [or manufactured home dealer] under section 4 of this Act;
"real estate" includes a leasehold, an estate or interest or charge less than the fee simple, [a manufactured home,] a business and the goodwill and assets of it, and an interest, partnership or share in a business or in the goodwill or assets of it;
"real estate transaction" means a transaction for the acquisition, disposal, exchange or renting of real estate, or for the negotiation of a loan secured by a charge on or transfer of real estate, or for the collection of money so secured or money payable as rent for the use of real estate;
"regulations" means regulations made under this Act;
"salesman" means a person, other than a nominee, employed by an agent [or manufactured home dealer], either generally or in a particular case, to do anything referred to in the definition of agent [or manufactured home dealer, as the case may be];
"strata plan" means a strata plan as defined in the Condominium Act and, where the plan affects land situated without the Province, includes a condominium plan or other similar plan by whatever name it is called;
"subdivision" or "subdivided land" means land, whether the land is situated inside or outside the Province, that is, for the purpose of sale or lease, divided or proposed to be divided, whether by one or more divisions, into
(a) 5 or more lots or parcels,
(b) 5 or more strata lots, or
(c) 2 or more cooperative units by means of the creation, conversion, organization or development of a cooperative corporation,
but does not include
(d) land divided or proposed to be divided into lots or parcels of not less than 64.7 ha, or
(e) space leased in a commercial, industrial or apartment building unless the building is owned wholly or partly by a strata corporation or a cooperative corporation;
"superintendent" means the Superintendent of Real Estate;
"time share interest" means the interest of a person in a time share plan;
"time share ownership plan" means any plan by which a person participating in the plan acquires an ownership interest in real property and the right to use or occupy all or part of that property, including accommodations or facilities situated on all or part of that property, for specific or determinable periods of time;
"time share plan" means any time share ownership plan or time share use plan, whether in respect of land situated inside or outside the Province, that provides for the use, occupation or possession of real property to circulate in any year among persons participating in the plan;
"time share use plan" means any plan by which a person participating in the plan acquires a right to use or occupy real property, including accommodations or facilities situated on that property, for specific or determinable periods of time but does not acquire an ownership interest in that property.
Historical Note(s): RS1960-330-2; 1961-54-2; 1968-46-2; 1973-147-2; 1974-77-1; [bracketed words and definitions enacted 1977-40-51, not in force]; 1977-53-1; 1978-15-4; 1981-28-1, proclaimed effective February 1, 1982; 1982-68-46, proclaimed effective December 1, 1982; 1985-16-1, effective August 9, 1985 (B.C. Reg. 261/85); 1985-75-15, effective February 10, 1986 (B.C. Reg. 18/86); 1988-1-41; 1990-53-12.
2. (1) This Part does not apply
(a) to a liquidator, receiver, trustee in bankruptcy, or a person acting under the authority of a court or an executor or trustee selling under the terms of a will, marriage settlement, or deed of trust;
(b) in respect of the negotiation of a loan secured or to be secured by a mortgage, transfer or other encumbrance of real estate which is contained in any bond, debenture or debenture stock of a corporation or in a trust deed or other like instrument securing any such bond, debenture or debenture stock;
(c) to a person engaging in a real estate transaction in respect of any mine or mining property within the meaning of the Coal Act, the Mineral Tenure Act or the Petroleum and Natural Gas Act, or in respect of the real estate comprised in any Crown grant or lease of a claim under the , or in respect of any licence or lease under the Coal Act or the Petroleum and Natural Gas Act;
(d) to a person specifically exempted by the regulations in respect of any class of trades in real estate;
(e) to a trust company which confines its trading in real estate to real estate which it purchases on its own account, owns or administers;
(f) to a barrister or solicitor whose name is inscribed on the rolls of barristers or solicitors in the Province, or to a person employed by him, in respect of transactions in the course of the practice of the barrister or solicitor;
(g) to a duly licensed collection agent or his employee in respect of the business of a collection agent within the meaning of the Debt Collection Act;
(h) to The Governor and Company of Adventurers of England trading into Hudson's Bay in respect of real estate owned by them;
(i) to a full time salaried employee of a principal to a real estate transaction where the employee is acting for or on behalf of his employer and complies with the regulations.
(2) The licences required by this Act are additional to any licence, registration, certificate, enrolment or qualification required by or under any other Act of the Legislature.
(3) Nothing in this Act or in the regulations passed under it authorizes any person to engage in the practice of law within the meaning of the Legal Profession Act or to act as a notary public within the meaning of the Notaries Act.
Historical Note(s): RS1960-330-3; 1961-54-3,4; 1968-46-3; 1972-58-14; 1987-25-109, effective June 1, 1988 (B.C. Reg. 172/88); 1988-5-68; 1989-47-393.
3. (1) No person shall act or hold himself out as an agent [or manufactured home dealer] unless he is the holder of a valid and subsisting agent's licence [or manufactured home dealer's licence] issued to him under this Act by the superintendent.
(2) No person shall act or hold himself out as a salesman unless he is the holder of a valid and subsisting salesman's licence or agent's licence issued to him under this Act by the superintendent, and unless he is employed by an agent [or manufactured home dealer].
(3) No person shall, after June 30, 1961, act or hold himself out as a nominee unless he is the holder of a valid and subsisting nominee's licence issued to him under this Act by the superintendent.
(4) If it appears to the superintendent that the applicant is not a suitable person to be licensed, or that the person nominated by the applicant under section 4 is not a suitable person to exercise the rights and privileges under the licence, and that the application should be refused, the superintendent shall, after a hearing if a hearing is requested, refuse to issue the licence.
(5) Where the applicant is a partnership or corporation and its name is, in the opinion of the superintendent, liable to be confused with that of a licensed agent [or manufactured home dealer], the superintendent may refuse to issue a licence to the applicant in that name.
Historical Note(s): RS1960-330-4; 1961-54-5; [bracketed words enacted 1977-40-51, not in force]; 1982-76-33; 1984-26-43, effective June 21, 1984 (B.C. Reg. 199/84); 1990-53-12.
4. (1) Application for a licence shall be made on the prescribed form to the superintendent, and a copy of the application shall be filed without delay with the council by the applicant.
(2) If the applicant for an agent's licence [or manufactured home dealer's licence] is a corporation, the application shall include a nomination in writing and under the seal of the corporation of a nominee or nominees to represent the corporation.
(3) If the applicant for an agent's licence [or a manufactured home dealer's licence] is a partnership, the application shall include a nomination in writing signed by each partner of a nominee or nominees to represent the partnership.
(4) If the applicant for an agent's licence [or a manufactured home dealer's licence] is an individual, the application may include a nomination in writing signed by the applicant of a nominee or nominees to represent the applicant.
Historical Note(s): RS1960-330-5; 1961-54-6; [bracketed words enacted 1977-40-51, not in force]; 1990-53-12.
5. Before issuing a licence, the superintendent or the council
(a) may make inquiries and require the information that he or it considers desirable,
(b) shall require the furnishing of security under the Bonding Act, and
(c) shall require confirmation, to his or its satisfaction, that the applicant for the licence has paid all assessments levied under section 18.71.
Historical Note(s): 1987-28-1, effective February 1, 1988 (B.C. Reg. 22/88).
6.1 (1) Where a licensee has, before a prescribed date and before his licence has expired, applied for renewal of his licence in the prescribed form and paid the prescribed fee, his licence shall be deemed to continue beyond its expiry date until the superintendent notifies him with respect to that application for renewal that his licence has not been renewed.
(2) Where a licensee alleges that his licence has continued beyond its expiry date under subsection (1), the onus is on him to establish that he has complied with subsection (1).
Historical Note(s): 1981-28-2, proclaimed effective February 1, 1982.
7. (1) Each person nominated by a corporation or partnership to represent them shall be the representative for all purposes under this Act, and shall be subject to any inquiries made under this Act with respect to an applicant for a licence.
(2) No person may be nominated to represent a corporation, partnership or individual agent [or manufactured home dealer] unless
(a) he possesses the qualifications set forth in the regulations; and
(b) he is actively engaged in the business of the corporation or partnership.
Historical Note(s): RS1960-330-8; 1961-54-8; [bracketed words enacted 1977-40-51, not in force]; 1990-53-12.
8. All replies and communications to the superintendent or to a member or officer of the council with respect to an applicant for a licence or a licensee under this Act are absolutely privileged, and no action shall be brought against any person in respect of them.
Historical Note(s): RS1960-330-9; 1966-40-2.
9. (1) An agent [or manufactured home dealer] shall without delay, after the issuance of his licence, deliver to the superintendent a list of the names and addresses of the salesmen employed by him, and shall during the continuance of his licence without delay notify the superintendent of
(a) the change of address of any of the salesmen; and
(b) the name and address of each new salesman employed, or of each salesman who ceases to be employed and where a salesman ceases to be employed, the notice shall also state the reason why the salesman ceased to be employed [by the agent].
(2) If a salesman ceases to be employed by an agent [or manufactured home dealer], he ceases to be entitled to act as a salesman, and his licence shall immediately be surrendered to the superintendent.
(3) The superintendent may reinstate the licence of a salesman on proof to his satisfaction that the salesman is qualified under this Act and is to be employed by a licensed agent.
Historical Note(s): RS1960-330-10; [bracketed words "by the agent" repealed 1977-40-51(i)(ii), not in force]; [bracketed words "or manufactured home dealer" enacted 1977-40-51(i)(i) and (j) (part), not in force, as amended by 1990-53-12 (Sch. 1, item 20)]; [amended 1977-40-51(j) (remainder: words added after "agent" in the second instance), not in force, amendment not consolidated; 1977-40-51(j) (part not consolidated) amended 1990-53-12 (Sch. 1, item 12), amendment not included]; 1990-53-12 (Sch. 1, items 12 and 20 re 1977-40 amendments).
10. The superintendent may publish in the Gazette a list of the names of all agents [or manufactured home dealers], nominees and salesmen whose licences at the date of publication are in good standing.
Historical Note(s): RS1960-330-11; 1961-54-9; [bracketed words enacted 1977-40-51, not in force]; 1990-53-12.
11. (1) The Real Estate Council is continued comprising 3 salesmen plus any combination of 14 agents or agent's nominees elected in accordance with the regulations and this section to hold office for a prescribed term and after that until a successor takes office.
(2) For the purpose of this section, the Province is divided into the following districts:
(a) District No. 1, the County of Vancouver;
(b) District No. 2, the County of Victoria;
(c) District No. 3, the County of Nanaimo;
(d) District No. 4, the County of Westminster;
(e) District No. 5, the County of Kootenay;
(f) District No. 6, the County of Yale;
(g) District No. 7, the Counties of Cariboo and Prince Rupert.
(3) Representation on the council shall be as follows:
(a) District No. 1, 1 salesman plus any combination of 5 agents or agent's nominees;
(b) District No. 2, any combination of 2 agents or agent's nominees;
(c) District No. 3, 1 agent or agent's nominee;
(d) District No. 4, any combination of 3 agents or agent's nominees;
(e) District No. 5, 1 agent or agent's nominee;
(f) District No. 6, 1 agent or agent's nominee;
(g) District No. 7, 1 agent or agent's nominee;
(h) Districts No. 2 and 3 jointly, 1 salesman;
(i) Districts No. 4, 5, 6 and 7 jointly, 1 salesman.
(4) The Lieutenant Governor in Council may prescribe the qualifications of a person eligible to be elected as representative of a district.
(5) Where a vacancy occurs on the council by the resignation of a representative or the failure of a district to elect a representative, the council may appoint a person qualifying for election to the council from a district in which the vacancy occurs to hold office on the council until a successor is elected.
(6) The chairman of the council shall be elected annually by members of the council, and the retiring chairman is eligible for re-election.
Historical Note(s): 1980-36-44, proclaimed effective February 26, 1981.
13. In addition to any other powers given to it under this Act or the regulations, the council
(a) may, and on request shall, tender advice to the superintendent that he seeks in the exercise of his powers, and shall, subject to the regulations, have supervision over the educational qualifications of agents and salesmen [or manufactured home dealers], and may delegate the training and examination to an appropriate department of The University of British Columbia;
(b) may provide for advanced training of agents and salesmen [or manufactured home dealers] on a voluntary basis;
(c) subject to regulation, may make assessments on all licensees for the expenses of the council, including the cost of a training program;
(d) subject to regulation, may provide for examination fees to be paid by applicants in the respective classes; and
(e) may appoint committees and subcommittees, and delegate to them powers it sees fit;
(f) may publish and distribute to licensees and others information bulletins and circulars; and
(g) may expend money for education and research in the field of real estate, including the granting of scholarships, fellowships or bursaries, the establishment or extension of libraries, and the making of grants or contributions to institutions, organizations or foundations which engage in such education or research;
(h) shall have any further powers and duties for the purposes of this Act as provided by the regulations.
Historical Note(s): RS1960-330-14; 1961-54-10; 1966-40-3; [bracketed words enacted 1977-40-51, not in force]; 1990-53-12.
13.1 (1) The superintendent may make regulations
(a) authorizing the council, on terms and conditions prescribed by the superintendent, to exercise any of his powers or to perform any of his duties under Part 1 including, but not limited to, the power
(i) to issue, renew or reinstate a licence or to refuse to issue, renew or reinstate a licence,
(ii) to cancel or suspend a licence,
(iii) to satisfy itself of any matter that is a condition precedent to the exercise of a power under this section,
(iv) to make inquiries respecting applicants and licensees, and
(v) to require security to be furnished,
(b) establishing criteria to be applied and procedures to be followed by the council in making a decision under this section,
(c) requiring
(i) applications for the issue, renewal or reinstatement of a licence to be made to the council, and
(ii) any list or notification referred to in section 9 or any other thing to be delivered to the council,
(d) requiring the council
(i) to provide the superintendent with the reports and information respecting any matter that is before the council or any decision made by it under this section,
(ii) to notify applicants, licensees or other persons of any decisions made by the council under this section, and
(iii) to keep records, including records of decisions made by the council under this section, and to permit public inspection of classes of records prescribed by the superintendent, and
(e) respecting the custody and use of the superintendent's seal of office and of any device for affixing a facsimile of his signature.
((2) Where the council is authorized to exercise a power under this section, the superintendent may, before a hearing is held, withdraw from the council any matter that is before the council for its decision and decide it in its stead.
Historical Note(s): 1984-26-45, effective June 21, 1984 (B.C. Reg. 199/84).
13.2 (1) Subject to subsection (2), a decision made by the council in the exercise of a power under section 13.1 has the same effect as a decision of the superintendent relating to the same subject matter and may be appealed to the Commercial Appeals Commission in the same manner as a decision of the superintendent.
(2) The superintendent
(a) is a party to an appeal of a decision of the council to the Commercial Appeals Commission, and
(b) may appeal a decision of the Council to the Commercial Appeals Commission.
(3) The council is a party to any appeal of a decision of the council to the Commercial Appeals Commission.
Historical Note(s): 1984-26-45, effective June 21, 1984 (B.C. Reg. 199/84).
14. (1) Every agent [and manufactured home dealer] shall, for every real estate transaction in which he or an employee, salesman or nominee of his is engaged, keep proper books, records and accounts including, in every transaction where money is received that is required by section 15 to be paid into his trust account, a record sheet in a form prescribed by the superintendent which shall disclose
(a) the nature of the real estate transaction;
(b) a description sufficient to identify the real estate involved in the transaction;
(c) the true consideration for the real estate transaction;
(d) the name and address of every party to the real estate transaction;
(e) the amount of money received and details of every disbursement of it; and
(f) the amount of commission or other remuneration paid or payable to any licensee, the name of the party paying it, and the name of every licensee who receives it.
(2) [An agent] shall have at least one deposit account in a savings institution and designated as a trust account both in his books and in the records of the bank, credit union or trust company.
Historical Note(s): RS1960-330-15; 1973-147-3; 1973-152-13; [bracketed words in subsection (1) enacted 1977-40-51, not in force; bracketed words in subsection (2) replaced by "Every agent and manufactured home dealer" 1977-40-51, not in force, as amended by 1990-53-12 (Sch. 1, item 20)]; 1978-15-4; 1989-47-394; 1990-53-12 (re 1977-40 amendments).
15. (1) An agent shall, on receipt pay into his trust account
(a) all money held for or received on behalf of a client or otherwise in respect of a real estate transaction;
(b) money a part of which belongs to the client and is to be held on his behalf and part of which belongs to the agent.
(2) A nominee, salesman or employee of an agent shall, on receipt, pay or deliver to the agent by whom he is employed
(a) all money held for or received on behalf of a client or otherwise in respect of a real estate transaction;
(b) money a part of which belongs to a client and is to be held on his behalf.
Historical Note(s): RS1960-330-16; 1961-54-11; 1978-15-4.
16. No money may be drawn from a trust account, except
(a) money paid to or on behalf of a client from funds which have been deposited in a trust account to the client's credit;
(b) money required for payment to the agent for or on account of services rendered to or disbursements made on behalf of a client from money belonging to the client;
(c) money paid into the trust account by mistake;
(d) money paid under section 48; or
(e) interest paid to the foundation pursuant to section 18.5 (2).
Historical Note(s): RS1960-330-17; 1978-15-4; 1985-16-2, effective August 9, 1985 (B.C. Reg. 261/85).
17. ([1) A manufactured home dealer shall, on receipt, pay into his trust account all money received from a customer.
(2) A nominee, salesman or employee of a manufactured home dealer shall, on receipt, pay or deliver to the manufactured home dealer by whom he is employed all money received from a customer.
(3) Unless otherwise prescribed, no money may be drawn from a trust account, except
(a) money paid to or on behalf of a customer from funds which have been deposited in a trust account to the customer's credit;
(b) money required for payment to the manufactured home dealer from funds paid by a customer on account of the purchase price of a manufactured home which has been delivered to the customer and in respect of which his interest has been registered in the manufactured home registry office;
(c) money paid into the trust account by mistake; or
(d) pursuant to an order of a court or the registrar.
Historical Note(s): 1977-40-51, not in force; amended 1990-53-12, amendments included.]
18. Sections 15 and 16 do not apply to money which the agent pays into a separate trust account opened in the name of the client or other person named by the client in writing.
Historical Note(s): RS1960-330-18.
18.1 (1) The Real Estate Foundation is established as a corporation.
(2) The foundation may acquire and dispose of real and personal property for its purposes.
Historical Note(s): 1985-16-3, effective August 9, 1985 (B.C. Reg. 261/85).
18.2 (1) The foundation shall be administered by a board of governors consisting of 5 members as follows:
(a) one member appointed by the British Columbia Real Estate Association;
(b) one member appointed by the council;
(c) one member appointed by the Real Estate Institute of British Columbia;
(d) one person, not licensed under this Act, appointed by the minister;
(e) the minister or his appointee.
(2) A member of the board, other than the minister or his appointee, shall hold office for a term of 3 years, or until his successor is appointed, and may be reappointed, but a member, other than the minister or his appointee, shall not serve for more than 2 successive complete terms.
(3) Each of the British Columbia Real Estate Association, the council, the Real Estate Institute of British Columbia and the minister may revoke the appointment of a member appointed by it or him, as the case may be, during that member's term of office.
(4) The members shall elect one of them to be chairman.
(5) Where a vacancy occurs in the office of a member, the person or body by whom he was appointed may appoint to the vacant office a person eligible to be appointed to that office by that person or body under subsection (1), and the person so appointed shall hold office for the balance of the term for which he is appointed, or until his successor is appointed.
Historical Note(s): 1985-16-3, effective August 9, 1985 (B.C. Reg. 261/85).
18.3 (1) The purposes of the foundation are
(a) to undertake and carry out real estate public and professional education, real estate law reform, real estate research and other real estate related good works,
(b) on written directions of the minister, to undertake and carry out those projects and activities the minister designates as being in the public interest, and
(c) to establish and maintain a fund to be used for the purposes of the foundation.
(2) Subject to subsection (3) and conditions which the minister may impose in directions given by him under subsection (1) (b), the board shall apply the funds of the foundation in the manner the board decides for the purposes described in subsection (1) (a) and for the projects and activities designated under subsection (1) (b), and in doing so may grant loans of the funds on terms and conditions the board determines.
(3) The minister's directions under subsection (1) (b) shall not require an expenditure for the projects and activities designated under subsection (1) (b) of more than 50% of the foundation's annual net revenue, determined in accordance with rules made by the superintendent.
(4) The funds of the foundation shall consist of
(a) all money remitted to the foundation by or on behalf of agents under section 18.5 (2),
(b) interest accruing from investment of the funds of the foundation, and
(c) other money received by the foundation.
(5) The board may pay out of the funds of the foundation the costs, charges and expenses
(a) involved in the administration of the foundation, or
(b) incurred by the board in carrying out the purposes of the foundation.
(6) All money of the foundation shall, pending investment or application in accordance with this section, be paid into a savings institution to the credit of a separate account to be called the real estate foundation account, and that account shall be used for the purposes of the foundation.
(7) Any money that is not immediately required for the purposes of the foundation may be invested in the name of the foundation by the board in any manner in which trustees are authorized to invest trust funds, if the investments are in all other respects reasonable and proper.
(8) The accounts of the foundation shall be audited annually by a chartered accountant or certified general accountant appointed for that purpose by the board.
Historical Note(s): 1985-16-3, effective August 9, 1985 (B.C. Reg. 261/85).
18.4 The board may make bylaws for purposes relating to the affairs, business, property and objects of the foundation including, but not limited to, bylaws respecting the
(a) number and designation of officers of the foundation,
(b) appointment and terms of office of officers of the foundation and all matters relating to their offices,
(c) establishment of an executive committee and the delegation of powers to it,
(d) resignation or removal from office of officers of the foundation,
(e) number and designation of employees of the foundation, other than officers, and their conditions of employment,
(f) remuneration, if any, of officers and employees of the foundation, and
(g) operation of the real estate foundation account.
Historical Note(s): 1985-16-3, effective August 9, 1985 (B.C. Reg. 261/85).
18.5 (1) An agent is not liable, by virtue of the relation between agent and principal or between himself and a client or by virtue of the trust relationship between the agent, as trustee, and the beneficiary of the trust, to account to a client or beneficiary for interest received by the agent on money received or held in a trust account referred to in section 15 (1).
(2) An agent who is credited by a savings institution with interest on money received or held on behalf of clients generally holds the interest in trust for the foundation, and shall pay or cause the savings institution to pay the interest to the foundation in accordance with rules made by the superintendent.
(3) Nothing in this section or in the rules under section 18.6 shall apply to money desposited in a separate account for a client, and interest paid on money in that account is the property of the client.
Historical Note(s): 1985-16-3, effective August 9, 1985 (B.C. Reg. 261/85).
18.6 The superintendent may make rules
(a) for the purposes of section 18.3 (3), defining "annual net revenue" and establishing methods of calculating, estimating, allocating and pro-rating that revenue,
(b) requiring that, for the purposes of section 18.5, an agent, or a class of agents, receiving and holding money in trust for or on account of clients generally shall deposit the money, or a designated part of it, in an interest bearing account, and
(c) respecting payment to the foundation of all the interest credited by a savings institution to an interest bearing account referred to in paragraph (b).
Historical Note(s): 1985-16-3, effective August 9, 1985 (B.C. Reg. 261/85).
18.7 (1) This section and sections 18.71 to 18.74 do not apply to manufactured home dealers, their salesmen or their nominees or to licensees whose licences are restricted under section 44 (u).
(2) The Real Estate Errors and Omissions Insurance Corporation (the "corporation") is established as a corporation.
(3) The corporation may acquire and dispose of real and personal property for its purposes.
(4) [Repealed 1987-60-26, effective January 22, 1988 (B.C. Reg 20/88).]
(5) The corporation shall be administered by a board of directors consisting of
(a) 3 directors appointed by the British Columbia Real Estate Association, and
(b) 4 directors appointed by the council.
(6) A director of the corporation shall hold office for a term not exceeding 2 years, or until his successor is appointed, and may be reappointed.
(7) Each of the British Columbia Real Estate Association and the council may revoke the appointment of a director of the corporation appointed by it during that director's term of office.
(8) The directors of the corporation shall elect one of them to be chairman.
(9) A director of the corporation ceases to hold office if he
(a) ceases to hold the qualifications necessary for his appointment,
(b) becomes a mentally disordered person,
(c) becomes bankrupt, or
(d) contravenes a provision of this Act or the regulations and a majority of the other directors consider that the contravention is sufficiently serious to justify the director's removal from the board of directors.
(10) For purposes of this section and sections 18.71 to 18.74, the corporation is entitled to access to licensing records of the council.
Historical Note(s): 1987-28-2, effective February 1, 1988 (B.C. Reg. 22/88) [see also 1987-60-26]; 1987-28-2 amended, 1987-60-26, effective January 22, 1988 (B.C. Reg. 20/88); 1990-53-12.
18.71 (1) For the purpose of enabling licensees to obtain indemnity against liability arising out of negligently performing, or negligently failing to perform, their duties in the capacity of agents, nominees or salesmen, the corporation shall
(a) make arrangements for insurance for licensees against that liability,
(b) establish, administer, maintain and operate indemnity plans to provide indemnity against that liability for licensees, or
(c) do both (a) and (b).
(2) Subject to the regulations, the corporation may
(a) collect money in respect of premiums for insurance under subsection (1) (a) and of indemnity plans under subsection (1) (b) by the levy of assessments on licensees or on classes of licensed agents, nominees and salesmen,
(b) establish terms and conditions in relation to arrangements and indemnity plans under subsection (1), and
(c) define classes of licensed agents, nominees and salesmen for the purpose of paragraph (a).
(3) The money collected under subsection (2) and any income from the investment of that money shall
(a) be deposited in a savings institution in the Province, and
(b) constitute a fund to be known as the "Real Estate Errors and Omissions Insurance Fund" (the "insurance fund") to be used for the purpose described in subsection (1).
(4) The corporation may authorize payment out of the insurance fund for expenses incurred
(a) to administer the fund and make expenditures for the purposes of subsection (1),
(b) to investigate, adjust and settle claims, and
(c) for any other matter relating to the protection and maintenance of the fund.
(5) The insurance fund is
(a) the property of the corporation and is not subject to a trust in favour of a person who claims damages, or has obtained judgment, against a licensee, and
(b) shall not be subject to any process of seizure or attachment by a creditor of the corporation.
(6) Every licensee shall pay to the corporation, on or before the date fixed by the corporation, any
(a) assessment levied against the licensee under subsection (2), and
(b) deductible amount paid by the corporation on behalf of a licensee in respect of insurance arranged under subsection (1) (a) or an indemnity plan established under subsection (1) (b).
(7) Where a licensee has not, on or before the date fixed for payment under subsection (6), paid an assessment or deductible amount payable by him under that subsection, the licensee's licence is, by this subsection, suspended on the day after the date fixed for payment.
(8) A licence suspension under subsection (7) is ended, and the licence is restored, as soon as the licensee pays to the corporation the full amount due by him, together with interest on that amount at a rate which the corporation may determine.
Historical Note(s): 1987-28-2, effective February 1, 1988 (B.C. Reg. 22/88) [see also 1987-60-27]; 1987-28-2 amended, 1987-60-27, effective January 22, 1988 (B.C. Reg. 20/88).
18.72 (1) The corporation may invest any part of the insurance fund, not presently required for disposition, in any security or class of securities in which trustees are permitted to invest trust funds under the Trustee Act.
(2) The corporation may, in a manner and on terms and conditions it considers advisable, enter into contracts with insurers by which the insurance fund may be protected in whole or in part against any claim or loss to the insurance fund, and the costs incurred by the corporation under any such contracts may be defrayed from the insurance fund.
(3) The corporation has an insurable interest in the insurance fund and in the protection of the insurance fund against loss.
Historical Note(s): 1987-28-2, effective February 1, 1988 (B.C. Reg. 22/88) [see also 1987-60-28]; 1987-28-2 amended, 1987-60-28, effective January 22, 1988 (B.C. Reg. 20/88).
18.73 (1) Not later than March 31 in each year, the corporation
(a) shall cause a report to be prepared as to the insurance fund and all dispositions made from it during the previous calendar year,
(b) shall cause a copy of the report to be delivered to each of the Superintendent of Insurance, the council, the Real Estate Association and each licensee, and
(c) shall provide a copy of the report to any person who requests one.
(2) In addition to the report under subsection (1), the corporation shall provide the Superintendent of Insurance with audited financial statements or other information concerning the insurance fund when required to do so by the Superintendent of Insurance.
(3) The Superintendent of Insurance may investigate and inquire into any matter relating to the insurance fund, and sections 127 (2) to (5) and 128 to 130 of the Securities Act apply to the investigation or inquiry.
Historical Note(s): 1987-28-2, effective February 1, 1988 (B.C. Reg. 22/88) [see also 1987-60-30]; 1987-28-2 amended, 1987-60-30, effective January 22, 1988 (B.C. Reg. 20/88).
18.74 (1) Where, after giving the corporation an opportunity to be heard, the Superintendent of Insurance considers that the ability of the corporation to meet its present or future obligations is uncertain, he may
(a) order that the directors cease to have control of the corporation, or
(b) by order, impose conditions on the continued operation of the corporation.
(2) On the date of an order under subsection (1) (a),
(a) the directors of the corporation cease to hold office, and
(b) the Superintendent of Insurance becomes the sole director of the corporation,
and the Superintendent of Insurance shall, while the order remains in effect, have the powers and the duties otherwise vested in and imposed on the directors of the corporation.
Historical Note(s): 1987-28-2, effective February 1, 1988 (B.C. Reg. 22/88) [see also 1987-60-31]; 1987-28-2 amended, 1987-60-31, effective January 22, 1988 (B.C. Reg. 20/88).
19. (1) The superintendent or any person authorized by him may, and the council or any person authorized by it, when directed by the superintendent, shall, conduct an inspection or examination of the books, records and accounts of any person believed to have been engaged in any real estate transaction at times or by persons the superintendent determines.
(2) On inspection or examination, the superintendent or the council and any person authorized in writing by the superintendent are entitled to free access to all books and account, cash, documents, bank records, vouchers, correspondence and records of every description of the person believed to have been engaged in a real estate transaction.
(3) No person shall withhold or destroy, conceal or refuse to furnish any information or thing reasonably required for the purposes of an inspection or examination under this section.
Historical Note(s): RS1960-330-19; 1961-54-12.
20. (1) The council may, whether a complaint is made or not, and shall when directed by the superintendent, inquire whether a licensee has
(a) misappropriated or wrongfully converted money or other property entrusted to or received by him in his capacity as a licensee;
(b) committed a breach of this Act or the regulations or failed to comply with an order of the superintendent; or
(c) misconducted himself as a licensee.
(2) For the purpose of making the inquiry, the council, or any person appointed by it, may investigate the facts and circumstances, and may at any time make an inspection of the books, documents and records of a licensee, and the result of each investigation and inspection made shall be promptly reported to the council.
(3) If the inquiry indicates that the licensee may be guilty of wrong doing under subsection (1), the council may and when directed by the superintendent shall, after due notice to the licensee, conduct a hearing, consider the whole case, and report its findings and recommendations to the superintendent, who may, after making any further inquiries he considers necessary, in his discretion,
(a) dismiss the complaint;
(b) cancel the licence of the licensee;
(c) reprimand the licensee;
(d) suspend, for a period of time he considers appropriate, the licence of the licensee; or
(e) where action is taken under paragraph (c) or (d), order the licensee to enroll in and complete a course of studies or training prescribed by the superintendent.
(4) A hearing under this section may be conducted by a hearing committee of not fewer than 3 members of the council appointed by the council.
(5) The hearing committee may, and when directed by the superintendent shall, also comprise a judge of the Supreme Court or a person enrolled and in good standing as a barrister under the Legal Profession Act in substitution for a member of the council or in addition to the other members of the hearing committee. The findings and recommendations of the hearing committee shall be deemed to be the findings and recommendations of the council.
(6) On a hearing respecting a manufactured home the hearing committee may, and when directed by the superintendent shall, include one or more persons with special, technical or administrative knowledge of the manufactured home industry.
(7) On a hearing the complainant and the licensee may be represented by counsel, and the council may retain counsel to examine or cross examine witnesses and to advise on law.
(8) The council and a hearing committee have the same powers as the Supreme Court to compel the attendance of witnesses, receive evidence under oath, and to compel the production and inspection of books, papers, documents and things; and all formal directions in that behalf may be under the hand of the chairman, the chairman of the hearing committee, or the secretary of the council.
(9) The superintendent may, whether or not an inquiry has been held or a report has been made under this section, and whether or not any complaint has been made, suspend or cancel a licence where in his opinion suspension or cancellation is in the public interest.
(9.1) For the purpose of a hearing under subsection (9) or section 3 (4), the superintendent has the powers given under section 15 of the Commercial Appeals Commission Act to the Commercial Appeals Commission.
(9.2) Where the superintendent considers that the length of time that would be required to hold a hearing would be prejudicial to the public interest, he may exercise the power
(a) under subsection (9) to suspend or cancel a licence, or
(b) under section 3 (4) to refuse to issue a licence
without giving the licensee or the applicant for the licence an opportunity to be heard, but he shall immediately notify the licensee or the applicant in writing
(c) of the suspension, cancellation or refusal and the reasons for it, and
(d) of the right of the licensee or applicant under section 63.1 to appeal the suspension, cancellation or refusal to the Commercial Appeals Commission.
(9.3) Where,
(a) pursuant to subsection (9.2), the superintendent exercises a power under subsection (9) to suspend or cancel a licence or under section 3 (4) to refuse to issue a licence, and
(b) the appellant includes, with his notice of appeal under section 8 of the Commercial Appeals Commission Act, a written request that the commission hear within 21 days his appeal from the decision of the superintendent to suspend, cancel or refuse to issue the licence,
the Commercial Appeals Commission shall hear the appeal within 21 days after the receipt by the commission of the notice of appeal.
(9.4) Notwithstanding section 63.1, no appeal lies to the Commercial Appeals Commission from a decision not to hold a hearing made by the superintendent under subsection (9.2).
(10) Where a person appointed by the superintendent or by the council to examine the books and records of a licensee reports that in his opinion there has been an infraction of this Act or the regulations relating to accounts, the superintendent may immediately suspend the licence of the licensee pending the result of the inquiry under this section.
(11) The superintendent may,
(a) where the licence of a person has been suspended or cancelled;
(b) where disciplinary action against a person has commenced or is about to commence under this section; or
(c) where criminal proceedings or proceedings in respect of a violation of this Act or the regulations are about to be or have been instituted against a person, which in the opinion of the superintendent are connected with or arise out of a real estate transaction,
in writing or by telegram direct
(d) any person having on deposit or under control or for safe keeping any funds or securities of the person referred to in paragraph (a), (b) or (c) to hold the funds or securities; or
(e) the person referred to in paragraph (a), (b) or (c)
(i) to refrain from withdrawing funds or securities from any other person having any of them on deposit, under control, or for safe keeping; or
(ii) to hold the funds or securities of clients or others in his possession or control in trust for any interim receiver, custodian, trustee, receiver or liquidator, or until the superintendent in writing revokes the direction or consents to release of any particular fund or security from the direction;
but in the case of a bank, loan or trust company, the direction applies only to the offices, branches or agencies named in the direction.
(12) A person in receipt of a direction given under subsection (11), if he doubts the application of the direction to any funds or security, or if a claim is made to the funds or security by any person not named in the direction, may apply to the Supreme Court, which may direct the disposition of the funds or security and may make an order for costs that seems just.
(13) Where a hearing has been commenced by the council or a hearing committee and adjourned, the retirement from office, death, illness or inability to attend of any member of the council or hearing committee does not deprive the members or remaining members from jurisdiction to complete the hearing, consider the whole case, and report their findings and recommendations to the superintendent.
(14) The lapse or suspension of a licence by operation of law or by order or decision of the superintendent or of a court of law, or the voluntary surrender of a licence by a licensee, does not deprive the superintendent, the council, or a hearing committee of jurisdiction to proceed with any inquiry, investigation, hearing, action or disciplinary proceeding with respect to the licensee, or to do any act otherwise authorized under this Act.
(15) Where, in an action or proceeding, civil or criminal, in a court in the Province, the court finds that a licensee has been a party to or guilty of an act or omission set forth in subsection (1), the court shall promptly furnish particulars of its findings to the superintendent.
Historical Note(s): RS1960-330-20; 1961-54-13; 1973-147-4; 1978-15-4; 1981-28-3, proclaimed effective February 1, 1982; [amended 1984-26-46 (a), not in force, amendment not included]; 1984-26-46 (b), effective June 21, 1984 (B.C. Reg. 199/84); 1985-51-76, effective September 27, 1985 (B.C. Reg. 318/85); 1987-25-110, effective June 1, 1988 (B.C. Reg. 172/88); 1989-40-185; 1990-53-12.
21. (1) [Where a real estate agent's licence or real estate salesman's licence] is suspended or revoked, the superintendent shall notify the person whose licence is suspended or revoked and the Minister of Consumer and Corporate Affairs of the action taken.
(2) In cases where it appears that a crime has been committed, the Minister of Consumer and Corporate Affairs shall be given full particulars of the cause of the suspension or revocation.
Historical Note(s): RS1960-330-21; [bracketed words replaced by "When the licence of a licensee" 1977-40-51, not in force]; 1977-75-11.
23. [When an agent or manufactured home dealer has ceased to carry on business for a period of 5 years, he ceases to be entitled to act as an agent or manufactured home dealer, and his licence shall immediately be surrendered to the superintendent. If thereafter the agent or manufactured home dealer applies for an agent's or manufactured home dealer's licence, he shall not be required to serve a further term as a salesman but shall be required to pass the examinations prescribed for an agent or manufactured home dealer and to pay the prescribed fees.
Historical Note(s): RS1960-330-23; 1977-40-51, not in force; amended 1990-53-12, amendments included.]
23X. When an agent has ceased to carry on business for a period of 5 years, he ceases to be entitled to act as an agent, and his licence shall immediately be surrendered to the superintendent. If thereafter the agent applies for a real estate agent's licence, he shall not be required to serve a further term as a salesman but shall be required to pass the examinations prescribed for an agent and to pay the prescribed fees.
Historical Note(s): RS1960-330-23; [to be repealed on proclamation of section 23, 1977-40-51].
24. No licensed agent [or manufactured home dealer] who is not carrying on business as such is entitled to employ a salesman or to retain another agent [or manufactured home dealer] to represent him as a salesman, and such employment or retainer shall not be taken into account as service to qualify as an agent [or manufactured home dealer].
Historical Note(s): RS1960-330-24; 1961-54-15; [bracketed words enacted 1977-40-51, not in force]; 1990-53-12.
25. No licensee shall, as an inducement to purchase, sell or exchange real estate, make any representation or promise that he or any other person will
(a) resell, or in any way guarantee or promise to resell, any real estate offered for sale by him;
(b) purchase or sell any of the purchaser's real estate;
(c) procure a mortgage, extension of a mortgage, lease or extension of a lease; or
(d) purchase or sell a mortgage or procure a loan
unless at the time of making the representation or promise the licensee making it delivers to the person to whom the representation or promise is made a statement signed by the licensee clearly setting forth all the details of the representation or promise made.
Historical Note(s): RS1960-330-25; 1961-54-16.
26. When a licensee has secured a signed acceptance of an offer to sell, purchase, exchange, lease or rent real estate, he shall without delay deliver to each of the parties to the transaction a true copy of the acceptance signed by the acceptor.
Historical Note(s): RS1960-330-26; 1961-54-17.
27. No licensee shall induce any party to a contract for purchase and sale or rental of real estate to break the contract for the purpose of entering into a contract with another principal.
Historical Note(s): RS1960-330-27; 1961-54-18.
28. (1) No licensee shall, directly or indirectly,
(a) for himself,
(b) on behalf of any corporation of which he is a shareholder, director or officer, or
(c) on behalf of a partnership of which he is a partner,
acquire, offer to acquire or present an offer to acquire real estate, except by way of mortgage, unless, before acquiring, offering to acquire or presenting an offer to acquire, whichever first occurs, the licensee has disclosed in writing, in the form and manner prescribed by the superintendent, to the owner of the real estate, each of the following wherever they apply:
(d) that he is a licensee acquiring or offering to acquire the real estate for himself;
(e) that he is a licensee acquiring, offering to acquire or presenting an offer to acquire the real estate for a named person referred to in paragraph (b) or (c), and his relationship to that person;
(f) that it is his intention or the intention of the person named under paragraph (e) to resell the real estate;
(g) that he or the person named under paragraph (e) is about to negotiate, is negotiating or has negotiated for the disposition of that real estate, and gives full details of the negotiations;
(h) the amount of any commission which he or the person named under paragraph (e) will receive in respect of the real estate to be acquired.
(2) No licensee shall knowingly, directly or indirectly, on behalf of an unlicensed
(a) shareholder, director or officer of a licensed corporation,
(b) partner in a licensed partnership,
(c) corporation controlled by an unlicensed person who is
(i) a shareholder, director or officer of another licensed corporation, or
(ii) a partner in a licensed partnership, or
(d) partnership of which an unlicensed partner is
(i) a partner in another licensed partnership, or
(ii) a shareholder, director or officer of a licensed corporation,
acquire, offer to acquire or present an offer to acquire real estate, except by way of mortgage, unless, before acquiring, offering to acquire or presenting an offer to acquire, whichever first occurs, the licensee has disclosed in writing, in the form and manner prescribed by the superintendent, to the owner of the real estate, each of the following whenever they apply:
(e) that he is acquiring, offering to acquire or presenting an offer to acquire the real estate for a named person referred to in paragraphs (a) to (d);
(f) the relationship of the person named under paragraph (e) to the licensed person referred to in paragraphs (a) to (d);
(g) that it is the intention of the person named under paragraph (e) to resell the real estate;
(h) that the person named under paragraph (e) is about to negotiate, is negotiating or has negotiated for the disposition of that real estate, and gives full details of the negotiations.
(3) For the purposes of subsection (2), "shareholder" means a person who beneficially owns, directly or indirectly, equity shares of a corporation carrying more than 10% of the voting rights attached to all equity shares of the corporation for the time being outstanding.
Historical Note(s): 1981-28-5, proclaimed effective February 1, 1982.
29. (1) Where a transaction with respect to a business is negotiated by a licensee, the licensee shall, before a binding agreement of purchase or sale is signed by the parties, deliver to the person acquiring the business
(a) a profit and loss statement or statement showing the revenue and expenses of the business for a period of 12 months ending not more than 120 days before the signing of the agreement, or for the period from the acquisition of the business by the person disposing of it to a date not more than 120 days before the signing of the agreement;
(b) a statement of the assets and liabilities of the business; and
(c) a statement containing a list of all fixtures, goods, chattels, rights and other assets relating to or connected with the business which are not included in the transaction;
and every statement shall be dated and signed by the person disposing of the business or his agent lawfully authorized in that behalf.
(2) Where the licensee delivers to the person acquiring the business a statement under oath of the person disposing of the business setting forth
(a) the terms and conditions under which the person disposing of the business holds possession of the premises in which the business is being carried on;
(b) the terms and conditions under which the person disposing of the business has sublet any part of the premises in which the business is being carried on;
(c) all liabilities of the business; and
(d) that the person disposing of the business has made available such books of account of the business as he possesses for inspection by the person acquiring the business, or that the person disposing of the business has no books of account of the business, as the case may be,
the person acquiring the business may waive compliance with subsection (1) (a) and (b) by signing and delivering to the licensee a statement that he has received and read the statement under oath of the person disposing of the business.
(3) Unless the statement mentioned in subsection (1) (c) is delivered in accordance with subsection (1), all fixtures, goods, chattels and rights and other assets relating to or connected with the business shall be deemed to be included in the transaction.
(4) This section does not apply to a licensee where he is acting on behalf of a purchaser.
Historical Note(s): RS1960-330-29; 1961-54-20; 1973-147-6; 1978-15-4.
30. (1) No licensee, and no officer, agent or employee of a licensee, shall directly or indirectly pay or allow, or offer or agree to pay or allow, any commission or other compensation or thing of value to any person for acting, or attempting or assuming to act, as an agent or salesman, unless at the time he so acts, or attempts or assumes to act, that person holds a licence as may be appropriate under this Act.
(2) Every person who violates any provision of this section, or who knowingly receives any commission, compensation or thing of value paid or allowed in violation of this section, commits an offence against this Act, but nothing in this section applies to the payment by a duly authorized agent to an agent duly licensed or otherwise authorized by law as such in a jurisdiction other than British Columbia of a commission or other compensation with respect to the sale of real estate in the Province.
Historical Note(s): RS1960-330-30; 1961-54-21.
31. An agent shall not, in any real estate transaction, act as an agent for any other agent or salesman who is not a principal in the transaction unless the last mentioned agent or salesman is duly licensed under this Act, or duly licensed or otherwise authorized by law in a jurisdiction other than British Columbia.
Historical Note(s): RS1960-330-31.
32. An agent shall not employ or engage the salesman or nominee of another agent or any unlicensed salesman or nominee in any real estate transaction, and no agent shall pay a commission or other remuneration to that salesman or nominee.
Historical Note(s): RS1960-330-32; 1961-54-22.
33. A salesman or nominee shall not engage in a real estate transaction on behalf of an agent other than the agent who, according to the records of the superintendent, is his employer, and no salesman or nominee is entitled to or shall accept any commission or other remuneration in respect of a real estate transaction from a person except the agent who is registered as his employer.
Historical Note(s): RS1960-330-33; 1961-54-23.
34. An agent, other than a corporation or partnership, shall carry on business in his own name or trade name and shall not use any description, words or device that would indicate that his business is being carried on by more than one person or by a corporation, except that a surviving or remaining partner may carry on business in the name of the original partnership, but shall publish on all letterheads and circulars used by him in connection with his business the fact that he is its sole proprietor.
Historical Note(s): RS1960-330-34.
35. All commission or other remuneration payable to an agent in respect of the sale of any real estate shall be on an agreed amount or percentage of the sale price; and where no agreement as to the amount of the commission has been entered into, the rate of commission or other basis or amount of remuneration shall be that generally prevailing in the community where the real estate is situated.
Historical Note(s): RS1960-330-35.
36. A licensee shall not request or enter into an agreement for the payment to him of commission or other remuneration based on the difference between the price at which any real estate is listed for sale and the actual sale price of it, and a licensee is not entitled to retain any commission or other remuneration so computed.
Historical Note(s): RS1960-330-36; 1961-54-24.
37. (1) A person shall not maintain an action in any court for the recovery of compensation for any act done or expenditure incurred by him as an agent or salesman without proving that he was duly licensed under this Act as an agent or salesman, as the case may be, at the time the alleged cause of action arose.
(2) This section does not apply to an action brought against a licensed agent by an agent duly licensed or otherwise authorized by law as such in a jurisdiction other than British Columbia for the recovery of any commission or other compensation, the payment of which is not prohibited by section 30.
Historical Note(s): RS1960-330-37.
38. A contract is not rendered void or voidable as against a person other than the licensee by or through whom the contract was negotiated or entered into by reason of a failure on the part of the licensee to comply with any provision of this Part.
Historical Note(s): RS1960-330-38; 1961-54-25.
39. The superintendent may impound the books and records of an agent whose licence has been suspended or cancelled and retain them for a period of 2 years or until the suspension has been lifted.
Historical Note(s): RS1960-330-39.
40. (1) A person who
(a) makes a false statement in an application for a licence under this Act; or
(b) fails to comply with a provision of this Act or a regulation made under it or any order of the superintendent
commits an offence, and, if a corporation, is liable on conviction to a penalty of not more than $10 000, and, if an individual, to a penalty of not more than $5 000. Nothing in this section precludes the taking of disciplinary action as provided in this Act.
(2) No proceeding under this Act shall be instituted more than 2 years after the facts on which the proceeding is based first came to the knowledge of the superintendent.
Historical Note(s): RS1960-330-40; 1973-147-7; 1981-28-6, proclaimed effective February 1, 1982.
41. For the purposes of sections 20 and 40,
(a) every director or partner, as the case may be, every officer, nominee, employee and agent of an agent shall comply with the provisions of this Act, all regulations made under it, and all orders of the superintendent, and shall, so far as he has authority over any other person, cause him to comply with the same; and a director, partner, officer, nominee, employee or agent who fails to comply with any provision, regulation or order commits an offence;
(b) where an offence is committed by a licensee, the director, partner, officer, nominee, employee or agent in charge of the business of the agent at the place at which the offence is committed or in charge of the real estate transaction in connection with which the offence is committed is in the absence of evidence to the contrary deemed to be a party to the offence so committed and is personally liable to the penalties prescribed for the offence as a principal offender; and the records of the agent are as against the director, partner, officer, nominee, employee or agent evidence of the facts and transactions therein recorded, set out or indicated; but nothing in this section relieves the licensee or the person who actually committed the offence from liability therefor;
(c) an offence committed by a director or partner, an officer, nominee, employee or agent of a corporation or partnership acting as an agent is deemed to be the offence of the corporation or partnership, and the corporation or partnership is liable to the penalty for the offence; but nothing in this section absolves the actual offender from liability in respect of the offence.
Historical Note(s): RS1960-330-41; 1961-54-26.
42. (1) No action shall be brought against the superintendent, or any person acting under his authority, or any member of the council, its servant or agent, or the Real Estate Errors and Omissions Insurance Corporation or any of its directors, employees or agents, for anything done in good faith by him or it in the performance of his or its duties under this Act or in pursuance, or intended or supposed pursuance, of any of the provisions of this Act.
(2) No action shall be brought or continued against any person who at any time before this Act comes into force has acted or purported to act as a member of the Real Estate Agents' Licensing Board, constituted as a board by or under the Real Estate Agents' Licensing Act, R.S.B.C. 1948, c. 189, for anything heretofore done by him in good faith in the performance of his duties under that Act or in pursuance, or intended or supposed pursuance, of any of the provisions of that Act.
Historical Note(s): RS1960-330-42; 1974-77-3; 1987-28-3, effective February 1, 1988 (B.C. Reg. 22/88) [see also 1987-60-32]; 1987-28-3 amended, 1987-60-32, effective January 22, 1988 (B.C. Reg. 20/88).
43. All decisions of the superintendent refusing, suspending or cancelling a licence and all reports of the council under this Act shall be kept on file in the office of the superintendent, and, subject to section 8, shall be open to public inspection.
Historical Note(s): RS1960-330-43.
44. The Lieutenant Governor in Council may make regulations including those to meet cases which may arise and for which no provision or no adequate provision is made in this Act, or where any provision is ambiguous or doubtful, as well as those to
(a) prescribe the powers and duties of the council and its members;
(b) authorize the superintendent to exempt, and prescribe the conditions on which he may exempt, a person from the definition of "agent" under section (1) (f) and (g);
(c) prescribe, for the purposes of section 58 (1), circumstances the superintendent shall take into account when making an order in the public interest;
(d) provide for the full time employment of salesmen;
(e) provide for the regulation and control of branch offices of real estate agents;
(f) prescribe the particulars to be contained in advertisements for the purchase, sale or exchange of real estate;
(g) prescribe fees for licences and for licence applications for licensing and the amounts of the fees and the basis on which the fees shall be fixed;
(g.1) provide for
(i) the collection by the council of application and licence fees and penalties for the nonpayment of fees, and
(ii) the remission by the council of the fees and penalties to the superintendent;
(h) prescribe the qualifications required of an applicant for a licence under this Act and the statements and other documents to be produced by an applicant;
(i) provide for the instruction and education of applicants for licences and prescribe courses for that purpose;
(j) prescribe forms for use under this Act and regulations;
(k) prescribe the terms of licences and permits;
(l) prescribe the terms of and conditions for renewal of licences and permits;
(m) require that particulars and documents specified or prescribed be made available by agents and salesmen to parties to real estate transactions;
(n) provide for the granting of a permit to a personal representative to carry on a real estate business formerly carried on by a deceased agent, on terms and conditions set forth;
(o) prescribe the books, accounts and records to be kept by agents, salesmen or the council and provide for inspection of them by the superintendent or his representative and for their audit;
(p) prescribe returns to be made under this Act;
(q) provide for the filing of certificates of chartered accountants or certified general accountants, in the form prescribed, respecting the books and accounts of agents;
(r) provide for public or other hearings on any matter relating to real estate business generally;
(s) provide for the compulsory filing with the superintendent of copies of documents and papers;
(t) prescribe conditions with which an employee must comply under section 2 (1) (i);
([u) prescribe one or more classes of trades in real estate and provide for the issue of licences restricted to a prescribed class of trade;]
([v) exempt licensees whose licences are restricted solely to trades in manufactured homes from a certain provision of this Act, and instead, make regulations respecting the licensees so exempted;]
(w) provide for the election of members of the Real Estate Council, to provide procedures for review of an election of council members and to prescribe the terms of office of the members under section 11;
(x) prescribe fees for filing prospectuses and the amounts of the fees and the basis on which the fees shall be fixed, and provide for the collection and payment of the fees and of the penalties for nonpayment of the fees;
(y) provide for the administration of the Real Estate Errors and Omissions Insurance Fund (the "insurance fund");
(z) require classes of licensed agents, nominees and salesmen, for the purpose of indemnity against liability described in section 18.71 (1) to participate in
(i) insurance arranged under section 18.71 (1) (a), or
(ii) indemnity plans established under section 18.71 (1) (b);
(z.1) prescribe respecting the terms and conditions of
(i) insurance arranged under section 18.71 (1) (a), or
(ii) indemnities under indemnity plans established under section 18.71 (1) (b);
(z.2) prescribe minimum amounts of coverage under
(i) insurance arranged under section 18.71 (1) (a), or
(ii) indemnities under indemnity plans established under section 18.71 (1) (b)
for classes of licensed agents, nominees and salesmen;
(z.3) grant exemptions or conditional exemptions to classes of licensed agents, nominees and salesmen from the requirements of section 18.71;
(z.4) classify licensed agents, nominees and salesmen for the purposes of paragraphs (z), (z.2) and (z.3).
Historical Note(s): RS1960-330-45; 1961-54-27; 1966-40-5; 1972-58-14; 1973-147-8; [bracketed paragraphs enacted 1977-40-51, not in force]; 1978-15-4; 1980-36-45, proclaimed effective February 26, 1981; 1981-28-7, proclaimed effective February 1, 1982; 1984-26-47, effective June 21, 1984 (B.C. Reg. 199/84); 1987-28-4 effective February 1, 1988 (B.C. Reg. 22/88) [see also 1987-60-33]; 1987-28-4 amended, 1987-60-33, effective January 22, 1988 (B.C. Reg. 20/88); 1990-53-12.
45. Notwithstanding anything in any general or special Act of the Legislature, a municipality may not impose on a licensee any licence fee or tax for carrying on his business unless the licensee occupies or uses premises in the municipality for carrying on his business.
Historical Note(s): 1961-54-28.
46. An agreement purporting to be or being an exclusive listing of real estate for sale, exchange, lease or rental is not valid unless
(a) it is in writing and a true copy is delivered to each party to it immediately after its execution; and
(b) it contains a provision that it will expire on a specified date.
Historical Note(s): 1961-54-28.
47. A statement as to the existence, nonexistence or status of a licence under this Act purporting to be certified by the superintendent, without proof of the office or signature of the person certifying, is receivable in evidence, as far as relevant, for all purposes in any action, proceeding or prosecution.
Historical Note(s): 1961-54-28.
48. (1) Unless there is an express agreement in writing to the contrary to which the principals in a real estate transaction are parties, an agent who receives money in connection with a real estate transaction shall, notwithstanding any rule of law to the contrary, hold the money, subject to any claim which he may have against the money for commission or remuneration arising out of the real estate transaction, as a stakeholder and not as an agent for one of the principals.
(2) Where an agent holds money as a stakeholder, or otherwise in trust, and admits liability for it or for any part of it, and it appears to him that
(a) there are adverse claimants;
(b) the place of abode of a person entitled is unknown;
(c) there is no person capable of giving or authorized to give a valid discharge; or
(d) garnishing proceedings have been taken in respect of the money,
the agent may apply to the Supreme Court for an order for payment of the money into court, and the court may, on notice, if any, as it thinks necessary, make an order accordingly, and the application shall in the first instance be made ex parte.
(3) Payment into court by an agent under subsection (2) discharges the agent for the amount paid into court.
(4) When an agent applies for an order under subsection (2), he shall file an affidavit setting forth
(a) the names and addresses of the principals to the transaction;
(b) the names and addresses of all claimants to the money of whose claims he has notice;
(c) the nature of the transaction;
(d) the date and terms on which he received the money; and
(e) particulars of his claim, if any, for commission or remuneration arising out of the transaction.
(5) Money paid into court under subsection (2) shall not be paid out of court except by order of a court, which may order payment of the money out of court to the person entitled to it on terms it considers necessary, or direct an issue, or make any other order that it considers just.
(6) Subsection (1) does not apply in a real estate transaction where the agent collects, on a periodic and regular basis, rents, mortgage payments, payments under an agreement for sale registered under the land title legislation, payments under an option to purchase, or payments under a licence to use land.
Historical Note(s): 1961-54-28; 1978-15-4.
49. (1) In this Part the word "developer" means a person who, as principal, sells or leases, or offers or proposes to offer for sale or lease, subdivided land or more than 4 time share interests in one time share plan, but does not include a purchaser from the developer, or any subsequent purchaser, where the purchase is in respect of not more than 4 lots, 4 strata lots, one cooperative unit within a subdivision or 4 time share interests in one time share plan.
(2) For the purposes of this Part, a time share interest shall be deemed to be situated where the real property to which it relates is situated.
Historical Note(s): 1974-77-4; 1975-65-1; 1978-15-4; 1980-50-74, effective May 17, 1980; 1981-28-8, proclaimed effective February 1, 1982.
50. (1) For the purpose of this Part, except subsection (5), "approving officer" means an approving officer as defined in the land title legislation.
(2) No developer and no person on behalf of a developer shall sell, or lease, or offer for sale or lease, or knowingly assist in the sale or lease or offering for sale or lease of, subdivided land, other than strata lots or units, unless the subdivision plan is deposited and registered in the land title office for the district in which the subdivided land is situated.
(2.1) Subsection (2) does not apply in respect of land in the Province where the proposed subdivision plan has been approved by an approving officer.
(3) No developer and no person on behalf of a developer shall sell, or lease, or offer for sale or lease, or knowingly assist in the sale or lease or offering for sale or lease of, subdivided land comprised
(a) in a strata plan, unless the strata plan is deposited in the appropriate land title office; or
(b) of cooperative units,
unless subsection (4) is complied with.
(4) Notwithstanding subsection (3), a developer, or a person on behalf of a developer, may enter into a contract to sell or lease subdivided land
(a) comprised of proposed strata lots where the proposed strata plan of buildings proposed to be constructed has not been deposited in a land title office; or
(b) comprised of cooperative units,
if
(c) the creation of the proposed strata lots or the cooperative units has been approved by a municipality or other governmental authority and the approval is evidenced in a manner satisfactory to the superintendent;
(d) all money received from a purchaser or lessee is held in trust in the manner required by section 14, 15 and 16 until,
(i) in the case of a strata lot, the strata plan is deposited in the appropriate land title office, the premises purchased or leased are capable of being occupied and an instrument evidencing the interest of the purchaser or lessee in the strata lot has been registered in the appropriate land title office;
(ii) in the case of a cooperative unit, an instrument evidencing the interest of the person acquiring the interest has been delivered to that person; and
(e) subsection (6) has been complied with;
but no contract in respect of strata lots to which paragraph (a) applies shall pass or purport to pass title to a strata lot, and any contract required by the superintendent to be filed with him shall so state.
(4.1) No developer and no person on behalf of a developer shall sell a time share interest until the real property and all accommodations and facilities that are subject to the time share interest can be lawfully occupied or used by the purchaser and title to the time share interest can be transferred to the purchaser, unless
(a) all money received from the purchaser is held in trust in accordance with sections 14, 15 and 16, or as otherwise approved by the superintendent, and the developer has obtained the necessary approvals to construct the accommodations and facilities that will be subject to the time share interest, or
(b) the superintendent has given his approval in writing.
(5) No developer, and no person on behalf of a developer, shall sell, or lease, or offer for sale or lease, strata lots or cooperative units created or intended to be created by converting existing buildings into strata lots or cooperative units, as the case may be, unless
(a) approval of the conversion to strata lots or cooperative units is first obtained,
(i) where a building is situated in a municipality, from the municipal council; or
(ii) where a building is not situated in a municipality, from the regional board of the regional district,
in which the building is situated;
(b) the provisions of the Residential Tenancy Act respecting the conversion of residential premises to strata lots or cooperative units are complied with; and
(c) subsection (6) has been complied with.
(6) No developer, and no person on behalf of a developer, shall sell, or lease, or offer for sale or lease, or knowingly assist in the sale or lease or offering for sale or lease of, subdivided land or a time share interest, unless a prospectus in the form and including the particulars required under section 51 is submitted to, and accepted and filed by, the superintendent.
(7) No developer, and no person on behalf of a developer shall sell, or lease, or enter into any contract for the sale or lease of, subdivided land or a time share interest, unless
(a) a true copy of the prospectus referred to in subsection (6) has been delivered to the prospective purchaser or lessee; and
(b) the prospective purchaser or lessee has been afforded the opportunity to read the prospectus and a receipt has been taken from the prospective purchaser or lessee acknowledging that he has been afforded that opportunity, and every receipt shall be retained on file by the person taking the same and be available for inspection by the superintendent for a period of 3 years after the date it was taken.
(8) No person, and no person on behalf of a developer, shall sell, lease or offer for sale or lease in the Province subdivided land, or more than 4 time share interests in one time share plan in respect of land, situated without the Province unless
(a) he is the holder of a valid and subsisting agent's licence and is acting on behalf of a developer, or is a licensed salesman employed by that agent;
(b) the agent has advised the superintendent in writing that the agent has consented so to act and that his licensed salesman, if any, has consented so to act;
(c) as agent, he agrees to hold in his trust account in the Province all money representing deposits or any other consideration paid to him by a purchaser or lessee with respect to the transaction in accordance with section 63, for a period of at least 90 days after the money is received by him, and whether or not the transaction has been completed;
(d) there is printed or stamped in conspicuous type on the face of the prospectus required to be delivered under subsection (7) the words "Delivered on behalf of the developer by ____________________, whose address is ____________________", with the name of the agent and the place in the Province where he carries on business; and
(e) the subdivision plan or the strata plan is deposited and registered in the public office provided for the deposit or registration of those plans.
(9) Sections 14, 15, 16, 17, 18, and 48 apply with the necessary changes and so far as applicable to a developer, and to a person on behalf of a developer, to whom subsection (4), (4.1) or (5) applies.
(10) Notwithstanding subsection (9), where a developer, or a person on behalf of a developer to whom subsection (4) or (4.1) applies, deposits money in an interest earning trust account, he shall be entitled to the interest earned by the money deposited from the sale of the first 1/3 of the strata lots, cooperative units or time share interests offered by the prospectus.
(10.1) Subsection (9) does not prohibit the retention by a housing cooperative under the Cooperative Association Act of an amount, not exceeding a prescribed amount, paid by the purchaser or lessee of a cooperative unit in order to qualify the purchaser or lessee as a member of the housing cooperative.
(11) This section does not apply to a strata lot or cooperative unit that is
(a) a strata lot that was created by a strata plan deposited and registered in a land title office on or before February 17, 1977 and the boundaries of the strata lot are defined in the strata plan by reference primarily to floors, walls and ceilings;
(b) a cooperative unit of a cooperative corporation owning land situated in the Province where the cooperative corporation was established on or before October 1, 1974 and the cooperative unit has been marketed continuously since the date the cooperative corporation was established;
(c) a strata lot for which a prospectus has been filed under this Act and previously sold to a purchaser other than a purchaser who acquired, directly or indirectly by one or more acquisitions, either all of, or 5 or more of, the strata lots;
(d) a cooperative unit of a cooperative corporation for which a prospectus has been filed under this Act and previously sold to a purchaser other than a purchaser who acquired, directly or indirectly by one or more acquisitions, either all of, or 2 or more of, the cooperative units of that cooperative corporation; or
(e) a cooperative unit of a cooperative corporation for which a prospectus was filed and accepted under the Securities Act on or before June 1, 1975.
Historical Note(s): 1974-77-6; 1974-114-15; 1975-65-2; 1977-64-55; 1978-15-4; 1978-25-334; 1981-28-9, proclaimed effective February 1, 1982; 1984-26-48, effective June 21, 1984 (B.C. Regs. 201/84, 202/84); 1985-82-1, effective December 13, 1985 (B.C. Reg. 401/85); 1988-1-42.
50.1 (1) Notwithstanding section 50, the superintendent may permit a person to submit a disclosure statement to him instead of a prospectus referred to in that section, and, on submission of the duly completed statement, the superintendent shall, notwithstanding section 57 (1), accept it for filing.
(2) A disclosure statement permitted under this section shall be deemed to be a prospectus for the purposes of this Part, but sections 51, 54 and 55 do not apply to the disclosure statement or to an amendment to it.
(3) A disclosure statement permitted under this section shall
(a) notwithstanding section 44 (j), be in the form and include the contents required by the superintendent,
(b) be dated and signed by every person who is, at the time of the filing of the statement, a developer or a director of a corporate developer of the subdivided land or time share interest referred to in it and by any other person required by the superintendent,
(c) contain full, true and plain disclosure of the matters in the required contents referred to in paragraph (a), and
(d) have printed or stamped in conspicuous type on its outside front cover the following words:
"Neither the Superintendent of Real Estate nor any other authority of the government of the Province of British Columbia has in any way passed on the merits of the matters dealt with in this disclosure statement. This disclosure statement has been filed with the Superintendent of Real Estate but he has not determined whether or not it complies with Part 2 of the Real Estate Act."
Historical Note(s): 1985-82-2, effective December 13, 1985 (B.C. Reg. 401/85); 1985-75-16, effective February 10, 1986 (B.C. Reg. 18/86).
51. (1) Every prospectus to which section 50 relates shall be a statement in writing dated and signed by every person who is at the time of the filing of the prospectus a developer or a director of a corporate developer of the subdivided land or time share interest referred to in it and by any other person required by the superintendent, and the prospectus shall contain a full, true and plain disclosure relating to the real estate, time share interests, strata lots or cooperative units proposed to be sold or leased, including particulars prescribed by the superintendent for each category.
(2) The Lieutenant Governor in Council may, on conditions he prescribes, provide for the exemption from the provisions of this Part of subdivisions for or in connection with industrial development.
(3) There shall be printed or stamped in conspicuous type on the face of every prospectus required to be delivered under this Act the following words:
"Neither the Superintendent of Real Estate nor any other authority of the government of the Province of British Columbia has in any way passed on the merits of the matters dealt with in this prospectus.",
and any representation to the contrary is an offence under this Act.
(4) Notwithstanding section 44 (j), the superintendent may prescribe the form and content of prospectuses required by Part 2.
Historical Note(s): 1961-54-29; 1973-147-11; 1974-77-7; 1978-15-4; 1981-28-10 to 12, proclaimed effective February 1, 1982; 1985-75-17, effective February 10, 1986 (B.C. Reg. 18/86); 1985-82-3, effective December 13, 1985 (B.C. Reg. 401/85).
52. (1) Any director may sign the prospectus by his agent.
(2) Notwithstanding sections 50.1 (3) and 51 (1), the superintendent may, on any conditions he considers necessary, dispense with the requirement for a director of a corporate developer to sign a prospectus.
Historical Note(s): 1961-54-29; 1985-82-4, effective December 13, 1985 (B.C. Reg. 401/85).
53. (1) Every prospectus submitted to the superintendent under section 50 relating to land described in a subdivision plan referred to in section 50 (2) shall be accompanied by
(a) a certificate of a solicitor verifying the contents of parts of the prospectus prescribed by the superintendent, except those parts that are proposals;
(b) an affidavit of every developer or of a director of each corporate developer declaring
(i) that every matter of fact stated in the prospectus is correct; and
(ii) that a true copy of it will be delivered to the prospective purchaser or lessee;
(c) a true copy of any plan prescribed by the superintendent;
(d) a true copy of any form of contract prescribed by the superintendent; and
(e) documents the superintendent requires to support any statement of fact, proposal or estimate set out in the prospectus.
(f) [Repealed 1981-28-13, proclaimed effective February 1, 1982.]
(2) Every prospectus submitted to the superintendent under section 50 relating to subdivided land comprised in a strata plan shall be accompanied by
(a) a certificate of a solicitor verifying the contents of parts of the prospectus prescribed by the superintendent, except those parts that are proposals;
(b) an affidavit of every developer or of a director of each corporate developer declaring
(i) that every matter of fact stated in the prospectus is correct; and
(ii) that a true copy of it will be delivered to the prospective purchaser or lessee;
(c) [Repealed 1981-28-14, proclaimed effective February 1, 1982.]
(d) a copy of any management agreement prescribed by the superintendent;
and,
(e) documents the superintendent requires to support any statement of fact, proposal, or estimate set out in the prospectus.
(f) [Repealed 1981-28-14, proclaimed effective February 1, 1982.]
(3) Every prospectus submitted to the superintendent under section 50 relating to subdivided land comprised of cooperative units shall be accompanied by
(a) a certificate of a solicitor verifying the contents of parts of the prospectus prescribed by the superintendent, except those parts that are proposals;
(b) an affidavit of every developer or of a director of each corporate developer declaring
(i) that every matter of fact stated in the prospectus is correct; and
(ii) that a true copy of it will be delivered to the prospective purchaser or lessee;
(c) [Repealed 1981-28-15, proclaimed effective February 1, 1982.]
(d) a copy of any management agreement prescribed by the superintendent; and
(e) documents the superintendent requires to support any statement of fact, proposal or estimate set out in the prospectus.
(f) [Repealed 1981-28-15, proclaimed effective February 1, 1982.]
(3.1) A prospectus submitted to the superintendent under section 50 relating to a time share interest shall be accompanied by
(a) a certificate of a solicitor verifying the contents of parts of the prospectus prescribed by the superintendent, except those parts that are proposals,
(b) an affidavit of every developer or of a director of each corporate developer declaring
(i) that every matter of fact stated in the prospectus is correct, and
(ii) that a true copy of it will be delivered to the prospective purchaser,
(c) a copy of any management agreement prescribed by the superintendent, and
(d) documents the superintendent requires to support any statement of fact, proposal or estimate set out in the prospectus.
(4) Where the certification required under subsection (1) (a), subsection (2) (a), subsection (3) (a) or subsection (3.1) (a) requires reference to foreign law, a solicitor may, in making the certification, rely on the opinion of any person qualified in that foreign law who is acceptable to the superintendent.
(5) Where the subdivision is in respect of the conversion of one or more buildings by means of a cooperative corporation or strata plan, every prospectus submitted to the superintendent under section 50 shall be accompanied by a complete and current report prepared and signed by a registered architect or engineer or by any other person, acceptable to the superintendent, as to the age, physical condition, and state of repair of each building, its heating, plumbing, electrical fixtures and equipment, elevators, roof, drainage and its general condition and repair of the structure and of its foundations.
(6) Every report required under subsection (5) shall be accompanied by a certificate stating
(a) the address and occupation of the person making the report;
(b) the qualification of that person;
(c) whether or not the report is based on personal examination and knowledge;
(d) the date of the examination;
(e) if the report is not based on personal examination and knowledge, the source of the information contained in the report; and
(f) any interest that the person may have, either directly or indirectly, in the matters reported on.
(7) Every report under subsection (5) shall be made available for inspection by the public.
(8) In the case of a phased strata plan,
(a) the developer shall file with the original prospectus required under section 50 the particulars by the superintendent in respect of the first phase of the development,
(b) the developer shall amend the original prospectus by filing the particulars prescribed by the superintendent before commencing each successive phase of the development, and
(c) the developer shall not sell, or lease, or offer for sale or lease, or knowingly assist in the sale or lease or offering for sale or lease of, a strata lot in a phase until the amended prospectus under paragraph (b) is accepted and filed by the superintendent.
Historical Note(s): 1974-77-8; 1978-15-4; 1981-28-13 to 17, proclaimed effective February 1, 1982; 1985-82-5, effective December 18, 1985 (B.C. Reg. 401/85).
54. The superintendent may, before accepting the prospectus for filing, cause to be made any investigation of the subdivision or time share interest he sees fit. The reasonable and proper costs of the investigation shall be borne by the developer.
Historical Note(s): 1961-54-29; 1978-15-4; 1981-28-18, proclaimed effective February 1, 1982.
55. (1) The council, on the request of the superintendent, shall make the investigation referred to in section 54 through any of its members or officers or through any person authorized by the council, its chairman or its secretary.
(2) The reasonable and proper expenses incurred by the council, including reasonable and proper charges for the time of council employees in connection with the investigation, together with whatever fee may be fixed by regulation, shall be paid to the council by the developer.
Historical Note(s): 1961-54-29; 1978-15-4.
56. If a change occurs with regard to any of the matters set out in any prospectus
(a) that would have the effect of rendering a statement in the prospectus false or misleading; or
(b) that brings into being a fact or proposal which should have been disclosed in the prospectus if the fact or proposal had existed at the time of the filing,
the developer shall immediately notify the superintendent in writing and shall file an amendment to the prospectus or a new prospectus as the superintendent may direct. Sections 50, 53, 54 and 55 apply to the amendment or new prospectus.
Historical Note(s): 1961-54-29; 1978-15-4.
57. (1) The superintendent shall not accept a prospectus for filing where it appears to the superintendent that the provisions of section 50 have not been complied with, or
(a) that the prospectus fails to comply in any substantial respect with any of the requirements of section 51, or contains any misleading, false or deceptive statement, promise or forecast, or has the effect of concealing any material fact;
(b) that the requirements of section 53 have not been complied with in any substantial respect;
(c) that adequate provision has not been made for the protection of deposits or other funds of purchasers or prospective purchasers or for the assurance to purchasers or prospective purchasers of title or other interest contracted for;
(d) that adequate arrangements have not been made for payment of the cost of utility or other services; or
(e) that the subdivision, the real property subject to the time share interest or the time share interest is subject to a mortgage, lien or other encumbrance, securing or evidencing payment of money and affecting the time share interest, the real property subject to the time share interest or the subdivided land or more than one lot, parcel or strata lot of it, or an agreement affecting more than one lot, parcel, strata lot or time share interest by which the developer holds an option or right to purchase the subdivided land, the real property subject to the time share interest or the time share interest subject to terms or conditions of payment or otherwise, unless
(i) there exists in that mortgage, lien, encumbrance or agreement an unconditional provision that the purchaser of each time share interest, lot, parcel or strata lot can obtain title or other interest contracted for free and clear of that mortgage, lien, encumbrance or agreement on compliance with the terms and conditions of the purchase;
(ii) an agreement has been irrevocably made that the entire sum of money paid or advanced by each purchaser of a time share interest, lot, parcel or strata lot or a portion of it that is satisfactory to the superintendent, shall be deposited in escrow in a depository acceptable to the superintendent until either
(A) a proper release is obtained from that mortgage, lien, encumbrance or agreement;
(B) either the vendor or the purchaser defaults under the contract of sale and there is a determination of the disposition of the money; or
(C) the vendor orders the return of the money to the purchaser;
(iii) the title to the subdivision, the real property subject to the time share interest or the time share interest is to be held in trust under an agreement of trust acceptable to the superintendent until a proper release from the mortgage, lien, encumbrance or agreement is obtained; or
(iv) there is compliance with any other alternative requirement or method that the superintendent may deem acceptable.
(2) The superintendent may require as adequate provision within subsection (1) (c), adequate arrangements within subsection (1) (d), or an alternative requirement under subsection (1) (e) (iv), or 2 or all of them, the furnishing of a bond to the superintendent for the benefit and protection of purchasers and prospective purchasers, with the surety, in the amount and subject to the terms that may be approved by the superintendent.
Historical Note(s): 1961-54-29; 1968-46-5; 1973-147-13; 1978-15-4; 1981-28-19, proclaimed effective February 1, 1982.
58. (1) Where, after the acceptance and filing of a prospectus under this Part, it appears to the superintendent that any of the circumstances set out in section 57 (1) exist, whether or not, as it transpires, they existed at the time of acceptance, or in any other circumstances where the superintendent considers it to be in the public interest, the superintendent may order the developer and every person who on his behalf sells or leases, or offers for sale or lease, subdivided land in the subdivision, or the time share interest, to which the prospectus relates to cease selling, leasing or offering for sale or lease the same.
(2) No order shall be made under subsection (1), without the superintendent giving the developer an opportunity of being heard, unless, in the opinion of the superintendent, the length of time required for a hearing could be prejudicial to the public interest, in which event a temporary order may be made which shall expire 15 days from the date of the making of it.
(3) A notice of every order under this section shall be served on the developer and on every person known to the superintendent who on the developer's behalf sells or leases, or offers for sale or lease, subdivided land in the subdivision, or the time share interest, to which the prospectus relates, and immediately on receipt of the notice,
(a) in the case of an order other than a temporary order, any acceptance and filing by the superintendent of the prospectus is revoked; and
(b) the subdivided land, or the time share interest, described in it shall not be sold or leased, or offered for sale or lease, unless the prospectus is reinstated or a new prospectus is accepted, or any order made in relation to it has expired.
Historical Note(s): 1968-46-6; 1978-15-4; 1981-28-20, proclaimed effective February 1, 1982.
59. (1) Where a prospectus has been accepted for filing by the superintendent under this Part,
(a) every purchaser of any part of the subdivided land or time share interest to which the prospectus relates shall be deemed to have relied on the representations made in the prospectus whether the purchaser has received the prospectus or not; and
(b) if any material false statement is contained in the prospectus,
(i) every person who is a director of the developer at the time of the issue of the prospectus;
(ii) every person who, having authorized such naming of him, is named in the prospectus as a director of the developer;
(iii) every developer; and
(iv) every person who has authorized the issue of the prospectus
is liable to make compensation to all persons who have purchased the subdivided land or time share interest for any loss or damage those persons may have sustained, unless it is proved
(v) that, having consented to become a director of the developer, he withdrew his consent before the issue of the prospectus, and that the prospectus was issued without his authority or consent;
(vi) that the prospectus was issued without his knowledge or consent, and that, on becoming aware of its issue, he immediately gave reasonable public notice that it was so issued;
(vii) that, after the issue of the prospectus and before a sale of the subdivided land or time share interest, he, on becoming aware of any untrue statement in it, withdrew his consent to it and gave reasonable public notice of the withdrawal and of the reason for it;
(viii) that, with respect to every untrue statement not purporting to be made on the authority of an expert, or of a public official document or statement, he had reasonable grounds to believe and did, up to the time of the sale of the subdivided land or time share interest, believe that the statement was true;
(ix) that, with respect to every untrue statement purporting to be a statement by or contained in what purports to be a copy of or extract from a report or valuation of an expert, it fairly represented the statement, or was a correct and fair copy or extract from a report or valuation, but the director, person named as director, developer or person who authorized the issue of the prospectus is liable to pay compensation as aforesaid if it is proved that he had no reasonable grounds to believe that the person making the statement, report or valuation was competent to make it; or
(x) that, with respect to every untrue statement purporting to be a statement made by an official person or contained in what purports to be a copy of or extract from a public official document, it was a correct and fair representation of the statement or copy of or extract from the document.
(2) In this section "prospectus" includes every statement and report and summary of report required to be filed with the prospectus under this Part.
Historical Note(s): 1961-54-29; 1966-40-8; 1978-15-4; 1981-28-21, proclaimed effective February 1, 1982.
60. (1) A person who fails to comply with or contravenes any requirement of this Part commits an offence, except, however, that a director or developer does not commit an offence by reason of the contravention of or noncompliance with section 51, 53, 56 or 58
(a) if he proves
(i) that he was not cognizant of any matter not disclosed; or
(ii) that the noncompliance or contravention arose from an honest mistake on his part; or
(b) if the noncompliance or contravention
(i) was in respect of matters that in the opinion of the court were immaterial; or
(ii) in the opinion of the court should be excused.
(2) Nothing in this section limits or diminishes any liability that any person may incur under this Act or under the general law apart from this section.
(2.1) On conviction of an offence under this section,
(a) a corporation is liable to a fine of not more than $100 000, and
(b) an individual is liable to either a fine of not more than $100 000 or to imprisonment for not more than 5 years less one day.
(3) Where a person referred to in subsection (1) or (2) is a licensee the provisions of Part 1 apply, with the necessary changes and so far as are applicable, to that person.
Historical Note(s): 1961-54-29; 1968-46-7; 1973-147-14; 1978-15-4; 1985-82-6, effective December 13, 1985 (B.C. Reg. 401/85).
61. Any statement deposited with and accepted by the superintendent in pursuance of Division (13) of the regulations prior to the effective date of this Part shall be deemed to be a prospectus in the form and with the content required by section 50, and sections 50, 56, 58, 59 and 60 apply to it.
Historical Note(s): 1961-54-29; 1968-46-58.
62. No promise or agreement to purchase or lease any subdivided land or time share interest is enforceable against the purchaser or tenant by a person who has breached any of the provisions of this Part, or by a successor in title of that person.
Historical Note(s): 1961-54-29; 1978-15-4; 1981-28-22, proclaimed effective February 1, 1982.
63. (1) Where a person has entered into a contract in the Province to purchase or lease subdivided land or a time share interest situated without the Province and
(a) any of the provisions of this Part have not been complied with; and
(b) he is a purchaser, owner or lessee named in the contract,
he may rescind the contract, at any time up to one year after the date that the contract was entered into and while he remains the beneficial owner, by serving written notice of rescission on the developer or the agent for the developer.
(1.1) A person who has entered into a contract in the Province to purchase or lease
(a) a time share interest, situated within or without the Province, or
(b) subdivided land situated within the Province
and who continues to be beneficially entitled to an interest in the subdivided land or the time share interest may rescind the contract by serving written notice of rescission on the developer or the developer's agent, in the case of a contract pertaining to a time share interest within 7 days after, and in the case of a contract pertaining to subdivided land within 3 days after, the later of
(c) the date the contract was entered into, or
(d) the date the person received a copy of the prospectus required under this Part in respect of that subdivided land or time share interest.
(1.2) Subsection (1.1) does not apply to a sale
(a) in respect of which a prospectus is not required to be filed under section 50, or
(b) in respect of which a prospectus was filed or ought to have been filed under this Part before subsection (1.1) came into force.
(1.3) A developer or his agent who receives money from a person acquiring a time share interest or purchasing or leasing subdivided land situated within the Province shall place the money in a trust account in the Province and shall not withdraw it until after the applicable time period referred to in subsection (1.1) or, where the person exercises his right under subsection (5), until the time provided for in section 50 (8) (c) has expired.
(2) Service of notice of rescission may be made by delivering, or mailing by registered mail at any post office in the Province, a signed copy of the notice
(a) to the agent at the address shown on the face of the prospectus;
(b) to the agent at his office or place of business at, or out of, which the contract was made; or
(c) to the developer at his address within or without the Province where, for any reason, no agent is acting on behalf of the developer.
(3) In an action for rescission under subsection (1), the onus of proving that the provisions of this Part have been complied with is on the developer.
(4) Where, at the time a notice of rescission has been served on a developer or an agent, he is holding the deposit, or other consideration, the developer or the agent shall
(a) return the money in his trust account relating to that contract to the person from whom it was received; or
(b) promptly pay the money into the Supreme Court, and, thereupon, section 48 applies with the necessary changes and so far as is applicable.
(5) Where a person has entered into a contract in the Province to purchase or lease subdivided land, or a time share interest in real property, situated without the Province, the deposit and other consideration payable by the purchaser or lessee to the developer with respect to the transaction may, at the option of the purchaser or lessee, be paid to the agent referred to in section 50 (8) and the payment shall, for the purposes of the contract, be deemed to be valid payment under the contract and every contract for the purchase or lease of the subdivided land or the time share interest shall be deemed to be amended accordingly.
(6) Every prospectus in respect of
(a) a time share interest, shall set forth the substance of subsections (1) to (5),
(b) subdivided land situated without the Province, shall set forth the substance of subsections (1) and (2) to (5), and
(c) subdivided land situated within the Province, shall set forth the substance of subsections (1.1) to (4)
in conspicuous type.
Historical Note(s): 1974-77-9; 1975-65-3; 1978-15-4; 1980-50-75, effective May 17, 1980; 1981-28-23, proclaimed effective February 1, 1982; 1985-82-7 to 10, effective December 13, 1985 (B.C. Reg. 401/85).
63.1 (1) A person aggrieved by a decision or order under this Act by the superintendent may appeal it to the Commercial Appeals Commission.
(2) A decision or order of the superintendent under section 19, 20 (9), (10) or (11) or 58 is not stayed by the filing of the notice of appeal and no order shall be made under section 12 (2) of the Commercial Appeals Commission Act.
Historical Note(s): 1982-68-47, proclaimed effective December 1, 1982.
64. (1) The superintendent may, by regulation and subject to conditions he considers necessary,
(a) exempt a person or class of persons from some or all of the provisions of Part 2,
(b) exempt specific land or a class of land, according to its use, from some or all of the provisions of Part 2, and
(c) exempt a specific transaction or class of transaction from some or all of the provisions of Part 2.
(2) [Enacted 1984-26-50, not in force.]
(3) Where an exemption has been made under subsection (1) in respect of a class, the superintendent may by regulation, in circumstances prescribed by the Lieutenant Governor in Council, suspend or cancel that exemption in respect of a member of or an item in that class, and, where an exemption is suspended or cancelled in respect of a member or an item, the suspension or cancellation may be further limited to certain transactions.
Historical Note(s): 1981-28-25, proclaimed effective February 1, 1982; 1984-26-49, effective June 21, 1984 (B.C. Reg. 201/84); 1984-26-50, part effective June 21, 1984 (B.C. Reg. 201/84); [amended 1984-26-50, part not in force, that amendment not included]; 1985-82-11, effective December 13, 1985 (B.C. Reg. 401/85).
65. (1) Section 23 comes into force on proclamation and section 23X is repealed on proclamation of section 23.
(2) Sections 17 and 44 (u) and (v) come into force on proclamation.
(3) The bracketed definitions in section 1 come into force on proclamation.
(4) The bracketed words in sections 1, 3 (1), (2) and (5), 4 (2), (3) and (4), 7 (2), 9 (1) and (2), 10, 13 (a) and (b), 14 (1) and 24 are added on proclamation.
(5) The bracketed words "by the agent" in section 9 (1) (b) are repealed.
(6) The bracketed words in sections 14 (2) and 21 (1) are replaced on proclamation.
(7) Subsection (5) comes into force on proclamation.
Historical Note(s): 1977-40-53.
[Editorial Note(s): Unconsolidated amendment noted for section 9 not in force.]
[Schedules 1 to 3 repealed 1981-28-26, proclaimed effective February 1, 1982.]
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