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| This archived statute consolidation is current to October 1, 1998 and includes changes enacted and in force by that date. For the most current information, click here. |
[Updated to October 1, 1998]
Contents
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 that 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 the agent’s business;
"cooperative corporation" includes a housing cooperative under the Cooperative Association Act, any other corporation as defined in the Company Act and any partnership or limited partnership 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, owners or partners, directly or indirectly, of that housing cooperative, other corporation, partnership or limited partnership;
"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 continued under this Act;
"foundation" means the Real Estate Foundation continued under this Act;
"licensee" means a person licensed under this Act;
"money" includes currency, government or bank notes, cheques, drafts, post office, express and bank money orders;
"nominee" means an individual nominated by an agent under section 4;
"real estate" includes a leasehold, an estate or interest or charge less than the fee simple, 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;
"salesperson" means a person, other than a nominee, employed by an agent, either generally or in a particular case, to do anything referred to in the definition of agent;
"strata plan" means a strata plan as defined in the Condominium Act and, where the plan affects land located outside of British Columbia, includes a condominium plan or other similar plan by whatever name it is called;
"subdivision" or "subdivided land" means land, whether the land is located in or outside of British Columbia, that, for the purpose of sale or lease, is 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 or industrial 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 located 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 located in or outside of British Columbia, 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 located on that property, for specific or determinable periods of time but does not acquire an ownership interest in that property.
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 similar 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 Mineral Act, 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 regulation 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 British Columbia, or to a person employed by him or her, in respect of transactions in the course of his or her practice,
(g) to a duly licensed collection agent or his or her 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, or
(i) to a full time salaried employee of a principal to a real estate transaction if the employee is acting for or on behalf of his or her employer and complies with the regulations.
(2) The licences required by this Act are additional to any licence, registration, certificate, enrollment or qualification required by or under any other Act.
(3) Nothing in this Act or the regulations authorizes a 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.
3 (1) A person must not act or hold himself, herself or itself out as an agent without being the holder of a valid and subsisting agent’s licence issued to the person under this Act by the superintendent.
(2) A person must not act or hold himself, herself or itself out as a salesperson without being the holder of a valid and subsisting salesperson’s licence or agent’s licence issued to the person under this Act by the superintendent, and without being employed by an agent.
(3) A person must not act or hold himself, herself or itself out as a nominee without being the holder of a valid and subsisting nominee’s licence issued to the person 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 must, after a hearing if a hearing is requested, refuse to issue the licence.
(5) If the applicant is a partnership or corporation and its name, in the opinion of the superintendent, is liable to be confused with that of a licensed agent, the superintendent may refuse to issue a licence to the applicant in that name.
4 (1) Application for a licence must be made on the prescribed form to the superintendent.
(2) A copy of the application must be filed without delay with the council by the applicant.
(3) If the applicant for an agent’s licence is a corporation, the application must include a nomination in writing and under the seal of the corporation of a nominee or nominees to represent the corporation.
(4) If the applicant for an agent’s licence is a partnership, the application must include a nomination in writing signed by each partner of a nominee or nominees to represent the partnership.
(5) If the applicant for an agent’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.
5 Before issuing a licence, the superintendent or the council
(a) may make inquiries and require the information that the superintendent or the council considers desirable,
(b) must require the applicant to provide security under the Bonding Act, and
(c) must require confirmation, to the satisfaction of the superintendent or the council, that the applicant for the licence has paid all assessments levied under section 26.
6 (1) If a licensee, before a prescribed date and before the licence has expired, has applied for renewal of the licence in the prescribed form and paid the prescribed fee, the licence continues beyond its expiry date until the superintendent notifies the licensee with respect to that application for renewal that the licence has not been renewed.
(2) If a licensee alleges that the licence has continued beyond its expiry date under subsection (1), the onus is on the licensee to establish that the licensee has complied with subsection (1).
7 (1) Each person nominated by a corporation or partnership to represent them is the representative for all purposes under this Act, and is subject to any inquiries made under this Act with respect to an applicant for a licence.
(2) A person may not be nominated to represent a corporation, partnership or individual agent unless
(a) the person possesses the prescribed qualifications, and
(b) the person is actively engaged in the business of the corporation or partnership.
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 may be brought against any person in respect of them.
9 (1) An agent, without delay after the issuance of the agent’s licence, must deliver to the superintendent a list of the names and addresses of the salespersons employed by the agent, and, during the continuance of the licence, without delay, must notify the superintendent of
(a) the change of address of any of the salespersons, and
(b) the name and address of each new salesperson employed, or of each salesperson who ceases to be employed.
(2) If a salesperson ceases to be employed, the notice must also state the reason why the salesperson ceased to be employed by the agent.
(3) If a salesperson ceases to be employed by an agent, the salesperson ceases to be entitled to act as a salesperson, and the salesperson’s licence must immediately be surrendered to the superintendent.
(4) The superintendent may reinstate the licence of a salesperson on proof to the superintendent’s satisfaction that the salesperson is qualified under this Act and is to be employed by a licensed agent.
10 The superintendent may publish in the Gazette a list of the names of all agents, nominees and salespersons whose licences at the date of publication are in good standing.
11 (1) The Real Estate Council is continued comprising
(a) 3 salespersons,
(b) any combination of 14 agents, or agent’s nominees, and
(c) 2 persons appointed by the Lieutenant Governor in Council.
(2) A person referred to in subsection (1) (a) or (b) is to be elected to the council in accordance with the regulations and this section and holds office for a prescribed term and after that until a successor takes office.
(3) A person appointed under subsection (1) (c) holds office for the term set out in the appointment.
(4) For the purpose of this section, British Columbia 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.
(5) Representation under subsection (1) (a) and (b) on the council is to be as follows:
(a) District No. 1, 1 salesperson 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 salesperson;
(i) Districts No. 4, 5, 6 and 7 jointly, 1 salesperson.
(6) The Lieutenant Governor in Council may prescribe the qualifications of a person eligible to be elected as representative of a district.
(7) If a vacancy occurs on the council as a result of a representative referred to in subsection (5) ceasing to hold office for any reason or as a result of a district referred to in subsection (5) failing to elect a representative, the council may appoint, from the district for which a representative is required, a person qualifying for election to the council to hold office on the council until a successor is elected.
(8) If a vacancy occurs on the council as a result of a person appointed under subsection (1) (c) ceasing to hold office for any reason, the Lieutenant Governor in Council may appoint a replacement member to hold office on the council for the term the Lieutenant Governor in Council considers appropriate.
(9) The chair of the council is to be elected annually by members of the council.
(10) The retiring chair is eligible for re-election.
12 In addition to any other powers given to it under this Act or the regulations, the council
(a) may, and on request must, tender advice to the superintendent that the superintendent seeks in the exercise of his or her powers, and, subject to the regulations, has supervision over the educational qualifications of agents and salespersons, 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 salespersons on a voluntary basis,
(c) subject to the regulations, may make assessments on all licensees for the expenses of the council, including the cost of a training program,
(d) subject to the regulations, may provide for examination fees to be paid by applicants in the respective classes,
(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,
(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 that engage in such education or research, and
(h) has any further powers and duties for the purposes of this Act that may be prescribed.
13 (1) The superintendent may make regulations as follows:
(a) authorizing the council, on terms and conditions prescribed by the superintendent, to exercise any of the superintendent’s powers or to perform any of the superintendent’s 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 provided;
(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;
(e) respecting the custody and use of the superintendent’s seal of office and of any device for affixing a facsimile of the superintendent’s signature.
(2) If the council is authorized to exercise a power under this section, the superintendent, before a hearing is held, may withdraw from the council any matter that is before the council for its decision and decide the matter instead of the council.
14 (1) Subject to subsection (2), a decision made by the council in the exercise of a power under section 13 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.
15 (1) Every person who is an agent, for every real estate transaction in which that person or an employee, salesperson or nominee of the person is engaged, must keep proper books, records and accounts including, in every transaction where money is received that is required by section 16 to be paid into that person’s trust account, a record sheet in a form prescribed by the superintendent that must disclose all of the following:
(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;
(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 must maintain in British Columbia in a savings institution or savings institutions one or more trust accounts, designated as trust accounts both in the agent’s records and the records of the savings institution or institutions.
16 (1) An agent must, on receipt pay into a trust account maintained in British Columbia in accordance with section 15
(a) all money held for or received on behalf of a client or otherwise in respect of a real estate transaction, and
(b) money a part of which belongs to the client and is to be held on the client’s behalf and part of which belongs to the agent.
(2) A nominee, salesperson or employee of an agent must, on receipt, pay or deliver to the agent by whom that person is employed
(a) all money held for or received on behalf of a client or otherwise in respect of a real estate transaction, and
(b) money a part of which belongs to a client and is to be held on the client’s behalf.
(3) Despite subsections (1) and (2), an agent or licensee employed by an agent may receive money in respect of a real estate transaction that is to be paid or is made payable to a person other than the agent if
(a) by written agreement separate from any agreement giving effect to the real estate transaction, the parties to the real estate transaction agree that the money be paid or be made payable to that other person, and
(b) the agent or licensee ensures that the money is paid to, or is made payable to and immediately delivered to, that other person, in accordance with that written agreement.
17 No money may be drawn from a trust account, except the following:
(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;
(b.1) money paid into the consolidated revenue fund under section 17.2;
(c) money paid into the trust account by mistake;
(d) money paid under section 59;
(e) interest paid to the foundation under section 23 (2).
17.1 [Not in force.]
17.2 (1) Money in a trust account maintained in British Columbia by an agent is deemed to be unclaimed money deposits for the purposes of this section if
(a) the money has been unclaimed for 5 or more years,
(b) the identity of the person entitled to claim the money is known and is not in dispute, and
(c) the agent has made all reasonable efforts to contact the person entitled to claim the money in order to have that money claimed but those efforts have not succeeded.
(2) Unclaimed money deposits may be paid into the consolidated revenue fund in a manner satisfactory to the Comptroller General and, on being so paid,
(a) the unclaimed money deposits form part of the consolidated revenue fund as provided in the Unclaimed Money Act, and
(b) sections 2 to 4 of the Unclaimed Money Act apply to the unclaimed money deposits.
18 Sections 16 and 17 do not apply to money that the agent pays into a separate trust account opened in the name of the client or other person named by the client in writing.
19 (1) The Real Estate Foundation is continued as a corporation consisting of the members of its board of governors.
(2) The foundation may acquire and dispose of real and personal property for its purposes.
20 (1) The foundation is to 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 the minister’s appointee.
(2) A member of the board, other than the minister or the minister’s appointee,
(a) holds office for a term of 3 years, or until a successor is appointed, and
(b) may be reappointed.
(3) Despite subsection (2), a member, other than the minister or the minister’s appointee, may not serve for more than 2 successive complete terms.
(4) 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 the minister, as the case may be, during that member’s term of office.
(5) The members must elect one of them to be chair.
(6) If a vacancy occurs in the office of a member, the person or body by whom the member 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 appointed holds office for the balance of the term for which he or she is appointed, or until a successor is appointed.
21 (1) The purposes of the foundation are the following:
(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;
(c) to establish and maintain a fund to be used for the purposes of the foundation.
(2) Subject to subsection (3) and conditions that the minister may impose in directions given by the minister under subsection (1) (b), the board must 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) must 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 consist of the following:
(a) all money remitted to the foundation by or on behalf of agents under section 23 (2);
(b) interest accruing from investment of the funds of the foundation;
(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) Until invested or applied in accordance with this section, all money of the foundation must be paid into a savings institution to the credit of a separate account to be called the real estate foundation account.
(7) The real estate foundation account must be used for the purposes of the foundation.
(8) 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.
(9) The accounts of the foundation must be audited annually by a chartered accountant or certified general accountant appointed for that purpose by the board.
22 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 following:
(a) the number and designation of officers of the foundation;
(b) the appointment and terms of office of officers of the foundation and all matters relating to their offices;
(c) the establishment of an executive committee and the delegation of powers to it;
(d) the resignation or removal from office of officers of the foundation;
(e) the number and designation of employees of the foundation, other than officers, and their conditions of employment;
(f) the remuneration, if any, of officers and employees of the foundation;
(g) the operation of the real estate foundation account.
23 (1) An agent is not liable, because of the relation between agent and principal or between the agent and a client or because 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 16 (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 must 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 24 applies to money deposited in a separate account for a client, and interest paid on money in that account is the property of the client.
24 The superintendent may make rules for one or more of the following:
(a) for the purposes of section 21 (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 23, an agent, or a class of agents, receiving and holding money in trust for or on account of clients generally must deposit the money, or a designated part of it, in an interest bearing account;
(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).
25 (1) In this section, "corporation" means the Real Estate Errors and Omissions Insurance Corporation continued under subsection (2).
(2) The Real Estate Errors and Omissions Insurance Corporation is continued as a corporation consisting of its directors.
(3) The corporation may acquire and dispose of real and personal property for its purposes.
(4) The corporation is to 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.
(5) A director of the corporation holds office for a term of up to 2 years, or until a successor is appointed.
(6) A director 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 must elect one of them to be chair.
(9) A director of the corporation ceases to hold office if the director
(a) ceases to hold the qualifications necessary for the 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 26 to 29, the corporation is entitled to access to licensing records of the council.
(11) This section and sections 26 to 29 do not apply to manufactured home dealers, their salespersons or their nominees or to licensees whose licences are restricted under section 55 (2) (z.1).
26 (1) In this section and sections 27 and 28, "insurance fund" means the Real Estate Errors and Omissions Insurance Fund constituted under subsection (5).
(2) 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 salespersons, the corporation must
(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).
(3) Subject to the regulations, the corporation may
(a) collect money in respect of premiums for insurance under subsection (2) (a) and of indemnity plans under subsection (2) (b) by the levy of assessments on licensees or on classes of licensed agents, nominees and salespersons,
(b) establish terms and conditions in relation to arrangements and indemnity plans under subsection (2), and
(c) define classes of licensed agents, nominees and salespersons for the purpose of paragraph (a).
(4) The money collected under subsection (3) and any income from the investment of that money must be deposited in a savings institution in British Columbia.
(5) The money deposited under subsection (4) constitutes the Real Estate Errors and Omissions Insurance Fund to be used for the purpose described in subsection (2).
(6) 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 (2),
(b) to investigate, adjust and settle claims, and
(c) for any other matter relating to the protection and maintenance of the fund.
(7) The insurance fund
(a) is 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) is not subject to any process of seizure or attachment by a creditor of the corporation.
(8) A licensee must pay to the corporation, on or before the date set by the corporation,
(a) any assessment levied against the licensee under subsection (3), and
(b) any deductible amount paid by the corporation on behalf of a licensee in respect of insurance arranged under subsection (2) (a) or an indemnity plan established under subsection (2) (b).
(9) If a licensee has not, on or before the date set for payment under subsection (8), paid an assessment or deductible amount payable by the licensee under that subsection, the licensee’s licence is suspended by this subsection on the day after the date set for payment.
(10) A licence suspension under subsection (9) is ended, and the licence is restored, as soon as the licensee pays to the corporation the full amount due by the licensee, together with interest on that amount at a rate that the corporation may determine.
27 (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) In a manner and on terms and conditions it considers advisable, the corporation may 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.
28 (1) Not later than May 31 in each year, the corporation must
(a) cause a report to be prepared as to the insurance fund and all dispositions made from it during the 12 month period that ended at the end of February in that year,
(b) cause a copy of the report to be delivered to each of the Superintendent of Financial Institutions, the council, the Real Estate Association and each licensee, and
(c) provide a copy of the report to any person who requests one.
(2) In addition to the report under subsection (1), the corporation must provide the Superintendent of Financial Institutions with audited financial statements or other information concerning the insurance fund when required to do so by the Superintendent of Financial Institutions.
(3) The Superintendent of Financial Institutions may investigate and inquire into any matter relating to the insurance fund, and sections 143 (2) to (5) and 144 to 146 of the Securities Act apply to the investigation or inquiry.
29 (1) If, after giving the corporation an opportunity to be heard, the Superintendent of Financial Institutions considers that the ability of the corporation to meet its present or future obligations is uncertain, the Superintendent of Financial Institutions 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 Financial Institutions becomes the sole director of the corporation.
(3) While an order under subsection (1) (a) remains in effect, the Superintendent of Financial Institutions has the powers and the duties otherwise vested in and imposed on the directors of the corporation.
30 (1) For the purposes of the administration and enforcement of this Act and the regulations, the superintendent or any person authorized by the superintendent may conduct, and the council or any person authorized by it, when directed by the superintendent, must conduct, an inspection or examination of the books, records and accounts of any licensee or former licensee at times or by persons the superintendent determines.
(2) On an inspection or examination under this section, the superintendent or the council and any person authorized in writing by the superintendent or the council are entitled to free access to all books, records and accounts of the licensee or former licensee.
(3) A person must not withhold or destroy, conceal or refuse to provide any information or thing reasonably required for the purposes of an inspection or examination under this section.
31 (1) Whether a complaint is made or not, the council may inquire and, when directed by the superintendent, must inquire whether a licensee has done any of the following:
(a) misappropriated or wrongfully converted money or other property entrusted to or received by the licensee in his, her or its capacity as a licensee;
(b) committed a breach of this Act or the regulations or failed to comply with an order of the superintendent;
(c) misconducted himself, herself or itself as a licensee.
(2) For the purposes of the inquiry,
(a) the council, or any person appointed by it, may investigate the facts and circumstances, and may at any time inspect the books, documents and records of a licensee, and
(b) the result of each investigation and inspection must 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 must, 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 the superintendent considers necessary, in his or her discretion,
(a) dismiss the complaint,
(b) cancel the licence of the licensee,
(c) reprimand the licensee,
(d) suspend, for a period of time the superintendent considers appropriate, the licence of the licensee, or
(e) if 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 at least 3 members of the council appointed by the council.
(5) The hearing committee may include, and when directed by the superintendent must include, 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.
(6) The findings and recommendations of the hearing committee are deemed to be the findings and recommendations of the council.
(7) On a hearing respecting a manufactured home the hearing committee may include, and when directed by the superintendent must include, one or more persons with special, technical or administrative knowledge of the manufactured home industry.
(8) 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.
(9) 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 for those purposes may be signed by the chair, the chair of the hearing committee, or the secretary of the council.
(10) 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, the superintendent may suspend or cancel a licence if in the superintendent’s opinion suspension or cancellation is in the public interest.
(11) For the purpose of a hearing under subsection (10) or section 3 (4), the superintendent has the powers given under section 15 of the Commercial Appeals Commission Act to the Commercial Appeals Commission.
(12) If the superintendent considers that the length of time that would be required to hold a hearing would be prejudicial to the public interest, the superintendent may exercise the power
(a) under subsection (10) 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.
(13) If the superintendent exercises a power under subsection (12) without having given the licensee or the applicant for the licence an opportunity to be heard, the superintendent must immediately notify the licensee or the applicant in writing
(a) of the suspension, cancellation or refusal and the reasons for it, and
(b) of the right of the licensee or applicant under section 79 to appeal the suspension, cancellation or refusal to the Commercial Appeals Commission.
(14) If,
(a) in accordance with subsection (12), the superintendent exercises a power under subsection (10) to suspend or cancel a licence or under section 3 (4) to refuse to issue a licence, and
(b) the appellant includes, with the notice of appeal under section 8 of the Commercial Appeals Commission Act, a written request that the commission hear within 21 days the appeal from the decision of the superintendent to suspend, cancel or refuse to issue the licence,
the Commercial Appeals Commission must hear the appeal within 21 days after the receipt by the commission of the notice of appeal.
(15) Despite section 79, no appeal lies to the Commercial Appeals Commission from a decision not to hold a hearing made by the superintendent under subsection (12).
(16) If a person appointed by the superintendent or by the council to examine the books and records of a licensee reports that in the person’s opinion there has been a contravention 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.
(17) If
(a) the licence of a person has been suspended or cancelled,
(b) disciplinary action against a person has commenced or is about to commence under this section, or
(c) criminal proceedings or proceedings in respect of a contravention 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,
the superintendent, in writing or by telegram, may 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 the person’s 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.
(18) In the case of a bank, loan or trust company, a direction under subsection (17) applies only to the offices, branches or agencies named in the direction.
(19) If a person in receipt of a direction given under subsection (17) 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, the person 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.
(20) If 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.
(21) 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.
(22) If, in an action or proceeding, civil or criminal, in a court in British Columbia, the court finds that a licensee has been a party to or guilty of an act or omission set out in subsection (1), the court must promptly provide particulars of its findings to the superintendent.
32 (1) If an agent’s licence or a salesperson’s licence is suspended or revoked, the superintendent must notify the person whose licence is suspended or revoked and the Minister of Finance and Corporate Relations of the action taken.
(2) If it appears that a crime has been committed, the Minister of Finance and Corporate Relations must be given full particulars of the cause of the suspension or revocation.
33 (1) When a person licensed as an agent has ceased to carry on business for a period of 5 years, the person ceases to be entitled to act as an agent, and the person’s licence must immediately be surrendered to the superintendent.
(2) If after a person’s license expires under subsection (1), the person applies for an agent’s licence, the person is not required to serve a further term as a salesperson but must pass the examinations prescribed for an agent and pay the prescribed fees.
34 A licensed agent who is not carrying on business as such is not entitled to employ a salesperson or to retain another agent to represent the agent as a salesperson, and such employment or retainer is not to be taken into account as service to qualify as an agent.
35 A licensee must not, as an inducement to purchase, sell or exchange real estate, make any representation or promise that the licensee or any other person will do any of the following 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 out all the details of the representation or promise:
(a) resell, or in any way guarantee or promise to resell, any real estate offered for sale by the licensee;
(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;
(d) purchase or sell a mortgage or procure a loan.
36 (1) Before assisting or representing any person in a real estate transaction, a licensee must disclose to that person
(a) the nature of the assistance or representation that the licensee will provide to the person,
(b) whether the licensee is, or will be, acting in the real estate transaction on behalf of any other person, in any capacity,
(c) whether the licensee is, or will be, receiving remuneration relating to the real estate transaction from any other person,
(d) the nature of the licensee’s relationship with any other person from whom the licensee is, or will be, receiving remuneration relating to the real estate transaction, and
(e) any other particulars that may be prescribed by the Lieutenant Governor in Council.
(2) If, during the course of a real estate transaction in which a licensee is assisting any person, there is any material change in the facts that the licensee has disclosed under subsection (1) to that person, the licensee must disclose the change to that person immediately.
37 (1) When a licensee has secured a signed acceptance of an offer to sell, purchase, exchange, lease or rent real estate, the licensee must without delay deliver to each of the parties to the transaction a copy of the acceptance signed by the acceptor.
(2) A licensee must not 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.
38 (1) A licensee must not, directly or indirectly,
(a) for the licensee’s own account or use,
(b) on behalf of a corporation of which the licensee is a shareholder, director or officer, or
(c) on behalf of a partnership of which the licensee 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 it applies:
(d) that the licensee is a licensee acquiring or offering to acquire the real estate for the licensee’s own account or use;
(e) that the licensee 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 the licensee’s relationship to that person;
(f) that it is the licensee’s intention or the intention of the person named under paragraph (e) to resell the real estate;
(g) that the licensee 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 the licensee or the person named under paragraph (e) will receive in respect of the real estate to be acquired.
(2) A licensee must not 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 it applies:
(e) that the licensee 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.
39 (1) If a transaction with respect to a business is negotiated by a licensee, the licensee must, before a binding agreement of purchase or sale is signed by the parties, deliver to the person acquiring the business all of the following:
(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;
(c) a statement containing a list of all fixtures, goods, chattels, rights and other assets relating to or connected with the business that are not included in the transaction;
(2) A statement under subsection (1) must be dated and signed by the person disposing of the business or the person’s authorized agent.
(3) If the licensee delivers to the person acquiring the business an affidavit of the person disposing of the business setting out
(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 the person 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 the person has received and read the affidavit of the person disposing of the business.
(4) 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 are deemed to be included in the transaction.
(5) This section does not apply to a licensee if the licensee is acting on behalf of a purchaser.
40 (1) A licensee, or an officer, agent or employee of a licensee, must not 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 salesperson, unless at the time the person so acts, or attempts or assumes to act, that person holds a licence as may be appropriate under this Act.
(2) A person who contravenes this section, or who knowingly receives any commission, compensation or thing of value paid or allowed in contravention of this section, commits an offence.
(3) Nothing in this section applies to the payment by an authorized agent to an agent 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 British Columbia.
41 An agent must not, in any real estate transaction, act as an agent for any other agent or salesperson who is not a principal in the transaction unless that agent or salesperson is licensed under this Act, or licensed or otherwise authorized by law in a jurisdiction other than British Columbia.
42 An agent must not
(a) employ or engage the salesperson or nominee of another agent or any unlicensed salesperson or nominee in any real estate transaction, or
(b) pay a commission or other remuneration to that salesperson or nominee.
43 (1) A salesperson or nominee must 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 the salesperson’s or nominee’s employer.
(2) A salesperson or nominee is not entitled to and must not accept any commission or other remuneration in respect of a real estate transaction from a person except the agent who is registered as the salesperson’s or nominee’s employer.
44 (1) An agent, other than a corporation or partnership, must carry on business in his or her own name or trade name and must not use any description, words or device that would indicate that his or her business is being carried on by more than one person or by a corporation.
(2) Despite subsection (1), a person who is the only surviving or remaining partner may carry on business in the name of the original partnership, but must publish on all letterheads and circulars used by the person in connection with the business the fact that he or she is its sole proprietor.
45 All commission or other remuneration payable to an agent in respect of the sale of any real estate must be on an agreed amount or percentage of the sale price; and if no agreement as to the amount of the commission has been entered into, the rate of commission or other basis or amount of remuneration is to be that generally prevailing in the community where the real estate is located.
46 A licensee must not request or enter into an agreement for the payment to the licensee 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.
47 (1) A person must not maintain an action in any court for the recovery of compensation for any act done or expenditure incurred by him or her as an agent or salesperson without proving that the person was licensed under this Act as an agent or salesperson 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 40.
48 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 because of a failure on the part of the licensee to comply with any provision of this Part.
49 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.
50 (1) A person commits an offence if the person
(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.
(2) A corporation that commits an offence under subsection (1) is liable on conviction to a penalty of not more than $10 000.
(3) An individual who commits an offence under subsection (1) is liable on conviction to a penalty of not more than $5 000.
(4) Nothing in this section precludes the taking of disciplinary action as provided in this Act.
51 A proceeding under this Act must not be instituted more than 2 years after the facts on which the proceeding is based first came to the knowledge of the superintendent.
52 For the purposes of sections 31, 50 and 51 the following apply:
(a) every person who is a director or partner, as the case may be, and every person who is an officer, nominee, employee or agent of an agent must comply with this Act, the regulations, and all orders of the superintendent, and must, so far as the person has authority over any other person, cause the other person to comply with them;
(b) a director, partner, officer, nominee, employee or agent who fails to comply with any provision, regulation or order commits an offence;
(c) if 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
(i) in the absence of evidence to the contrary deemed to be a party to the offence, and
(ii) personally liable to the penalties prescribed for the offence as a principal offender;
(d) the records of the agent are as against the director, partner, officer, nominee, employee or agent evidence of the facts and transactions recorded, set out or indicated in the records;
(e) nothing in this section relieves the licensee or the person who actually committed the offence from liability for the offence;
(f) 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;
(g) nothing in this section absolves the actual offender from liability in respect of the offence.
53 No action may be brought against the superintendent, or any person acting under the superintendent’s 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, her or it in the performance of duties under this Act or in pursuance, or intended or supposed pursuance, of any of the provisions of this Act.
54 All decisions of the superintendent refusing, suspending or cancelling a licence and all reports of the council under this Act must be kept on file in the office of the superintendent, and, subject to section 8, are open to public inspection.
55 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:
(a) prescribing the powers and duties of the council and its members;
(b) exempting persons and classes of persons from the application of paragraph (e.1) of the definition of "agent" in section 1 in prescribed circumstances and on prescribed conditions;
(c) authorizing the superintendent to grant, and prescribing the conditions on which the superintendent may grant, an exemption referred to in paragraph (f) or (g) of the definition of "agent" in section 1;
(d) prescribing, for the purposes of section 74 (1), circumstances the superintendent must take into account when making an order in the public interest;
(e) providing for the full time employment of salespersons;
(f) providing for the regulation and control of branch offices of real estate agents;
(g) prescribing the particulars to be contained in advertisements for the purchase, sale or exchange of real estate;
(h) prescribing the forms of disclosures that, under section 36 or under the regulations, must be made by licensees to the persons entitled to receive the disclosures;
(i) prescribing the particulars referred to in section 36 (1) (e);
(j) requiring licensees to disclose prescribed types of information to persons who are or may be involved in a real estate transaction in which the licensee is or may be also involved, in any prescribed capacity;
(k) for the purpose of a regulation made under any of paragraphs (h) to (j),
(i) classifying, according to the nature of their involvement or potential involvement in the real estate transaction, both the licensees making the disclosures and the persons entitled to receive the disclosures, or
(ii) prescribing differently for the different classes of licensees or persons;
(l) prescribing fees for licences and for licence applications for licensing and the amounts of the fees and the basis on which the fees must be set;
(m) providing 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;
(n) prescribing the qualifications required of an applicant for a licence under this Act and the statements and other documents to be produced by an applicant;
(o) providing for the instruction and education of applicants for licences and prescribing courses for that purpose;
(p) prescribing forms for use under this Act and the regulations;
(q) prescribing the terms of licences and permits;
(r) prescribing the terms of and conditions for renewal of licences and permits;
(s) requiring that particulars and documents specified or prescribed be made available by agents and salespersons to parties to real estate transactions;
(t) providing 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 out in the permit;
(u) prescribing the books, accounts and records to be kept by agents, salespersons or the council and providing for inspection of them by the superintendent or the superintendent’s representative and for their audit;
(v) prescribing returns to be made under this Act;
(w) providing for the filing of certificates of chartered accountants or certified general accountants, in the form prescribed, respecting the books and accounts of agents;
(x) providing for public or other hearings on any matter relating to real estate business generally;
(y) providing for the compulsory filing with the superintendent of copies of documents and papers;
(z) prescribing conditions with which an employee must comply under section 2 (1) (i).
(3) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:
(a) providing for the election of members of the Real Estate Council, providing procedures for review of an election of council members and prescribing the terms of office of the members under section 11;
(b) prescribing fees for filing prospectuses and the amounts of the fees and the basis on which the fees are set, and providing for the collection and payment of the fees and of the penalties for nonpayment of the fees;
(c) providing for the administration of the Real Estate Errors and Omissions Insurance Fund;
(d) requiring classes of licensed agents, nominees and salespersons, for the purpose of indemnity against liability described in section 26 (2) to participate in
(i) insurance arranged under section 26 (2) (a), or
(ii) indemnity plans established under section 26 (2) (b);
(e) prescribing respecting the terms and conditions of
(i) insurance arranged under section 26 (2) (a), or
(ii) indemnities under indemnity plans established under section 26 (2) (b);
(f) prescribing minimum amounts of coverage under
(i) insurance arranged under section 26 (2) (a), or
(ii) indemnities under indemnity plans established under section 26 (2) (b)
for classes of licensed agents, nominees and salespersons;
(g) granting exemptions or conditional exemptions to classes of licensed agents, nominees and salespersons from the requirements of section 26;
(h) classifying licensed agents, nominees and salespersons for the purposes of paragraphs (d), (f) and (g).
56 Despite anything in any general or special Act, a municipality may not impose on a licensee any licence fee or tax for carrying on his or her business unless the licensee occupies or uses premises in the municipality for carrying on the business.
57 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.
58 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.
59 (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 must, despite any rule of law to the contrary, hold the money, subject to any claim which the agent 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) If 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 the agent that
(a) there are adverse claimants,
(b) the address 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.
(3) An application under subsection (2) may be made without notice to anyone.
(4) Payment into court by an agent under subsection (2) discharges the agent for the amount paid into court.
(5) When an agent applies for an order under subsection (2), the agent must file an affidavit setting out the following:
(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 the agent has notice;
(c) the nature of the transaction;
(d) the date and terms on which the agent received the money;
(e) particulars of the agent’s claim, if any, for commission or remuneration arising out of the transaction.
(6) Money paid into court under subsection (2) may not be paid out of court except by order of a court.
(7) The court may
(a) order payment of the money out of court to the person entitled to it on terms it considers necessary,
(b) direct an issue, or
(c) make any other order that it considers just.
(8) 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.
60 (1) In this Part:
"approving authority" means, in a municipality, the municipal council, or outside a municipality, the regional board of a regional district;
"approving officer" means approving officer as defined in the Land Title Act;
"developer" means a person who, as principal,
(a) 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, or
(b) sells, offers or proposes to offer for sale, more than one shared interest in land relating to the same parcel or parcels of land,
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, 4 time share interests in one time share plan or one shared interest in the same parcel or parcels of land;
"shared interest in land" means a person’s interest in one or more parcels of land, as one of 2 or more owners of the parcel or parcels, where, as part of any transaction or arrangement relating directly or indirectly to the acquisition of that interest, the right to the use and occupation of the parcel or parcels of land is limited to a portion of the parcel or parcels that is less than the entire parcel or parcels.
(2) For the purposes of this Part, a time share interest is deemed to be located at the same place as the real property to which it relates.
61 (1) A developer or a person on behalf of a developer must 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, 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 located.
(2) Subsection (1) does not apply in respect of land in British Columbia if the proposed subdivision plan has been approved by an approving officer.
(3) Subsection (1) does not apply in respect of land in British Columbia on which a subdivision is proposed for the purpose of leasing space in a building.
(4) Unless subsection (5) is complied with, a developer or a person on behalf of a developer must 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, 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.
(5) Despite subsection (4), 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 sections 15, 16 and 17 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 (8) has been complied with,
but a contract in respect of strata lots to which paragraph (a) applies must not pass or purport to pass title to a strata lot, and any contract required by the superintendent to be filed with him or her must so state.
(6) A developer or a person on behalf of a developer must not 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 15, 16 and 17, 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 approval in writing.
(7) A developer or a person on behalf of a developer, must not 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) if a building is located in a municipality, from the municipal council, or
(ii) if a building is not located in a municipality, from the regional board of the regional district,
in which the building is located,
(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 (8) has been complied with.
(8) A developer or a person on behalf of a developer, must 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, subdivided land or a time share interest, unless a prospectus in the form and including the particulars required under section 67 is submitted to, and accepted and filed by, the superintendent.
(9) A developer or a person on behalf of a developer must not 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 (8) 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 or she has been afforded that opportunity, and every receipt must be retained on file by the person taking the receipt and be available for inspection by the superintendent for a period of 3 years after the date it was taken.
(10) A person or a person on behalf of a developer, must not sell, lease or offer for sale or lease in British Columbia subdivided land, or more than 4 time share interests in one time share plan in respect of land, located outside British Columbia, unless
(a) the person is the holder of a valid and subsisting agent’s licence and is acting on behalf of a developer, or is a licensed salesperson employed by that agent,
(b) the agent has advised the superintendent in writing that the agent has consented so to act and that the agent’s licensed salesperson, if any, has consented so to act,
(c) as agent, the person agrees to hold in the agent’s trust account in British Columbia all money representing deposits or any other consideration paid to the person by a purchaser or lessee with respect to the transaction in accordance with section 78, for a period of at least 90 days after the money is received by the person, 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 (9) the words "Delivered on behalf of the developer by ......................................, whose address is ..........................................", with the name of the agent and the place in British Columbia where the agent 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.
(11) Sections 15, 16, 17, 17.1, 18 and 59 apply to a developer, and to a person on behalf of a developer, to whom subsection (5), (6) or (7) applies.
(12) Despite subsection (11), if a developer, or a person on behalf of a developer to whom subsection (5) or (6) applies, deposits money in an interest earning trust account, the developer or person is 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.
(13) Subsection (11) does not prohibit the retention by a housing cooperative under the Cooperative Association Act of an amount, not greater than 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.
(14) 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 located in British Columbia if 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.
62 (1) A developer or person acting on behalf of a developer must not sell or offer for sale or knowingly assist in the sale or offering for sale of a shared interest in land located in or outside British Columbia, unless a prospectus in the form and including the particulars required under section 67 has been
(a) submitted to the superintendent by the developer or person, and
(b) accepted and filed by the superintendent.
(2) A developer or person acting on behalf of a developer must not sell or enter into any contract for the sale of a shared interest in land located in or outside British Columbia, unless
(a) a true copy of the prospectus referred to in subsection (1) has been delivered to the prospective purchaser,
(b) the prospective purchaser has been given the opportunity to read the prospectus, and
(c) the developer or person acting on behalf of the developer has taken a receipt from the prospective purchaser acknowledging the opportunity to read the prospectus.
(3) For a period of 3 years after taking a receipt referred to in subsection (2) (c), the developer must retain the receipt on file and produce it for inspection by the superintendent at the superintendent’s request.
63 (1) Sections 15, 16, 17, 17.1, 18 and 59 apply to a developer, and to a person acting on behalf of a developer, to whom section 62 applies.
(2) Despite subsection (1), where a developer, or a person acting on behalf of a developer, to whom section 62 (1) applies, deposits money in an interest earning trust account, the developer or person is entitled to the interest earned by the money deposited from the sale of the first 1/3 of shared interests in land offered by the prospectus.
(3) A developer or person acting on behalf of a developer, to whom section 62 applies, must hold in trust all money received from a purchaser of a shared interest in land in the manner required by sections 15, 16 and 17 until
(a) an instrument evidencing the purchaser’s title to the shared interest in the land has been registered in the appropriate land title office,
(b) an instrument evidencing the purchaser’s right to occupy a specific portion of the parcel or parcels of land to which the shared interest in land relates has been delivered to the purchaser, and
(c) that specific portion is ready for occupancy.
64 A person who is a developer or is acting on behalf of a developer must not sell in British Columbia or offer for sale in British Columbia or knowingly assist in the sale or offering for sale in British Columbia of a shared interest in land located outside British Columbia unless
(a) the person is a licensed agent or is a licensee employed by a licensed agent,
(b) the agent has advised the superintendent in writing that the agent is the developer or has consented to act on behalf of the developer, as the case may be, and that the agent’s employed licensee, if any, has consented to so act,
(c) the agent agrees to hold in a trust account maintained in British Columbia in accordance with section 15 all money representing deposits or any other consideration paid by a purchaser with respect to the transaction in accordance with section 78, for a period of at least 90 days after the money is received by the agent, 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 section 62 (2) the words "Delivered on behalf of the developer by ............................................................, whose address is.......................................", with the name of the agent and the place in British Columbia where the agent carries on business, and
(e) all matters have been completed, in the jurisdiction in which the shared interest in land is located, to ensure that the developer or person is able to deliver, to each purchaser of a shared interest in land, a good, safeholding and marketable title to that interest.
65 (1) A developer or person acting on behalf of a developer must not sell or offer for sale or knowingly assist in the sale or offering for sale of a shared interest in land located in British Columbia, unless the developer or person has applied for and obtained the approval, to the intended sale or offering, of
(a) the appropriate approving authority, if the land contains at least one building that is intended to be occupied under a right of use and occupation limited as set out in the definition of "shared interest in land" in section 60, or
(b) an approving officer, if the land does not contain at least one building intended to be so occupied.
(2) For the purpose of an application under subsection (1) to an approving authority for approval to an intended sale or offering for sale of a shared interest in land that contains at least one building described in subsection (1) (a),
(a) section 9 (1) to (6) of the Condominium Act applies in respect of the intended sale or offering as if it were an intended conversion of the land and building or buildings into strata lots under the Condominium Act, and
(b) in considering whether to grant or refuse the approval, the approving authority must treat the intended sale or offering as if it were an intended conversion of the land and building or buildings into strata lots under the Condominium Act.
(3) Within 2 months after receiving an application under subsection (1) for approval to an intended sale or offering for sale of any shared interest in land described in subsection (1) (b), or within another period that may be prescribed by the Lieutenant Governor in Council, the approving officer must
(a) approve the intended sale or offering,
(b) refuse to approve the intended sale or offering, or
(c) refuse to approve the intended sale or offering until terms and conditions imposed by the approving officer are met.
(4) An approving officer who under subsection (3) (b) or (c) refuses to approve an intended sale or offering must promptly notify the applicant in writing, stating briefly the reasons for the refusal, and, in the case of a refusal referred to in subsection (3) (c), must set out the terms and conditions in the notice.
(5) The approving officer, in making a decision under subsection (3), must consider the public interest and must take into account
(a) any criteria that may be prescribed by the Lieutenant Governor in Council, and
(b) any matters that the approving officer considers to be relevant.
(6) On granting approval to an intended sale or offering for sale of a shared interest in land that is the subject of an application under subsection (1), the approving authority or approving officer must issue a certificate of approval in the form required by the superintendent.
(7) This section does not apply to a shared interest in land that is part of a parcel in which at least one shared interest in land has, before April 26, 1995, been sold by or on behalf of the developer under an enforceable agreement of purchase and sale to a person dealing at arm’s length from both the developer and any person acting on behalf of the developer.
66 (1) Despite sections 61 to 64, the superintendent may permit a person to submit a disclosure statement to the superintendent instead of a prospectus and, on submission of the duly completed statement, the superintendent must, despite section 73 (1), accept it for filing.
(2) A disclosure statement permitted under this section is deemed to be a prospectus for the purposes of this Part, but sections 67, 70 and 71 do not apply to the disclosure statement or to an amendment to it.
(3) A disclosure statement permitted under this section must
(a) despite section 55 (2) (p), be in the form and include the contents required by the superintendent,
(b) be dated and signed by every person who, at the time of the filing of the statement, is a developer or a director of a corporate developer of the subdivided land, shared interests in land or time share interests 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 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 the superintendent has not determined whether or not it complies with Part 2 of the Real Estate Act."
67 (1) Every prospectus to which section 61 or 62 relates must 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, shared interests in land or time share interests referred to in it and by any other person required by the superintendent.
(2) A prospectus to which section 61 or 62 relates must 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 or to the shared interests in land proposed to be sold, including particulars prescribed by the superintendent for each category.
(3) The Lieutenant Governor in Council, on conditions the Lieutenant Governor in Council prescribes, may provide for the exemption from the provisions of this Part
(a) of subdivisions for or in connection with industrial development, or
(b) of the sale or offering for sale of shared interests in land for or in connection with industrial development.
(4) There must 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 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.
(5) Despite section 55 (2) (p), the superintendent may prescribe the form and content of prospectuses required by Part 2.
68 (1) Any director may sign the prospectus by his or her agent.
(2) Despite sections 66 (3) and 67 (1), the superintendent, on any conditions the superintendent considers necessary, may dispense with the requirement for a director of a corporate developer to sign a prospectus.
69 (1) Every prospectus submitted to the superintendent under section 61 relating to land described in a subdivision plan referred to in section 61 (1) must be accompanied by all of the following:
(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;
(e) documents the superintendent requires to support any statement of fact, proposal or estimate set out in the prospectus.
(2) Every prospectus submitted to the superintendent under section 61 relating to subdivided land comprised in a strata plan must be accompanied by all of the following:
(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 copy of any management agreement prescribed by the superintendent;
(d) documents the superintendent requires to support any statement of fact, proposal, or estimate set out in the prospectus.
(3) Every prospectus submitted to the superintendent under section 61 relating to subdivided land comprised of cooperative units must be accompanied by all of the following:
(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 copy of any management agreement prescribed by the superintendent;
(d) documents the superintendent requires to support any statement of fact, proposal or estimate set out in the prospectus.
(4) A prospectus submitted to the superintendent under section 61 relating to a time share interest must be accompanied by all of the following:
(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;
(d) documents the superintendent requires to support any statement of fact, proposal or estimate set out in the prospectus.
(5) Every prospectus submitted to the superintendent under section 62 relating to an intended sale or offering for sale of a shared interest in land must 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) any certificate of approval for the proposal that is issued in accordance with section 65 (6) by an approving officer or by the appropriate approving authority,
(d) a copy of any relevant management agreement,
(e) a copy of any agreement, instrument or other record setting out or evidencing any rights and obligations of the owner of the shared interest in land forming part of any parcel of land, in relation to other owners of interests, shared or otherwise, in the same parcel of land, and
(f) records the superintendent requires to support any statement of fact, proposal or estimate set out in the prospectus.
(6) In giving a certificate, referred to in subsection (1) (a), (2) (a), (3) (a), (4) (a) or (5) (a), that requires reference to foreign law, a solicitor may rely on the opinion of a person qualified in that foreign law who is acceptable to the superintendent.
(7) Every prospectus submitted to the superintendent
(a) under section 61 for a subdivision relating to the conversion of one or more buildings by means of a cooperative corporation or strata plan, or
(b) under section 62 relating to an intended sale or offering for sale of a shared interest in land that contains one or more buildings
must 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.
(8) Every report required under subsection (7) must be accompanied by a certificate stating all of the following:
(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;
(f) any interest that the person may have, either directly or indirectly, in the matters reported on.
(9) Every report under subsection (7) must be made available for inspection by the public.
(10) In the case of a phased strata plan,
(a) the developer must file with the original prospectus required under section 61 the particulars prescribed by the superintendent in respect of the first phase of the development,
(b) the developer must amend the original prospectus by filing the particulars prescribed by the superintendent before commencing each successive phase of the development, and
(c) the developer must 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.
70 (1) The superintendent may, before accepting the prospectus for filing, cause to be made any investigation of the subdivision, shared interests in land or time share interests the superintendent sees fit.
(2) The reasonable and proper costs of the investigation must be borne by the developer.
71 (1) The council, on the request of the superintendent, must make the investigation referred to in section 70 through any of its members or officers or through any person authorized by the council, its chair 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 set by regulation, must be paid to the council by the developer.
72 (1) 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 must immediately notify the superintendent in writing and must file an amendment to the prospectus or a new prospectus as the superintendent may direct.
(2) Sections 61, 62, 63, 69, 70 and 71 apply to the amendment or new prospectus.
73 (1) The superintendent must not accept a prospectus for filing if it appears to the superintendent that the provisions of section 61 or 62 have not been complied with, or
(a) that the prospectus fails to comply in any substantial respect with any of the requirements of section 66, 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 69 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, the time share interest or the land that is the subject of one or more shared interests in land
(i) is subject to a mortgage, lien or other encumbrance, that secures or evidences payment of money and that affects the time share interest, the real property subject to the time share interest, the subdivided land, more than one lot, parcel or strata lot of the subdivided land or the land that is the subject of one or more shared interests in land, or
(ii) is subject to an agreement that affects more than one lot, parcel, strata lot or time share interest or which affects the land that is the subject of one or more shared interests in land, by which agreement the developer, subject to terms or conditions of payment or otherwise, holds an option or right to purchase the subdivided land, the real property subject to the time share interest, the time share interest or the land that is the subject of one or more shared interests in land,
unless
(iii) 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 or shared interest in land 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,
(iv) an agreement that is satisfactory to the superintendent has been irrevocably made that the entire sum of money paid or advanced by each purchaser of a time share interest, of a lot, parcel or strata lot or a portion of it, or of a shared interest in land, must be deposited in escrow in a depository acceptable to the superintendent until
(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,
(v) the title to the subdivision, the real property subject to the time share interest or the time share interest or shared interest in land 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
(vi) there is compliance with any alternative requirement or method that the superintendent may consider 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 providing 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.
74 (1) If, 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 73 (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 the developer’s behalf sells or leases, or offers for sale or lease, subdivided land in the subdivision, or the shared interests in land, or the time share interests to which the prospectus relates to cease selling, leasing or offering for sale or lease the same.
(2) An order must not 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 that expires 15 days from the date of the making of it.
(3) A notice of every order under this section must 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 shared interests in land, or the time share interests 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 shared interests in land, or the time share interests, described in it must 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.
75 (1) In this section, "prospectus" includes every statement and report and summary of report required to be filed with the prospectus under this Part.
(2) If a prospectus has been accepted for filing by the superintendent under this Part,
(a) every purchaser of any part of the subdivided land, shared interests in land or time share interests to which the prospectus relates is 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 the naming, is named in the prospectus as a director of the developer,
(iii) every person who is a developer, and
(iv) every person who has authorized the issue of the prospectus
is liable to compensate all persons who have purchased the subdivided land, shared interests in land or time share interests 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, the person withdrew the consent before the issue of the prospectus, and that the prospectus was issued without the person’s authority or consent,
(vi) that the prospectus was issued without the person’s knowledge or consent, and that, on becoming aware of its issue, the person 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, shared interests in land or time share interests the person, on becoming aware of any untrue statement in it, withdrew the person’s 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, the person had reasonable grounds to believe and did, up to the time of the sale of the subdivided land, shared interests in land or time share interests 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, she or it 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.
76 (1) A person who fails to comply with or contravenes any requirement of this Part commits an offence.
(2) Despite subsection (1), a person who is a director or developer does not commit an offence because of the contravention of or noncompliance with section 67, 69, 72 or 74
(a) if the person proves
(i) that the person was not cognizant of any matter not disclosed, or
(ii) that the noncompliance or contravention arose from an honest mistake by the person, 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.
(3) 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.
(4) 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.
(5) If a person referred to in subsection (1), (2) or (3) is a licensee the provisions of Part 1 apply to that person.
77 (1) 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.
(2) No promise or agreement to purchase any shared interest in land is enforceable against the purchaser by a person who has breached any of the provisions of this Part, or by a successor in title of that person.
78 (1) If a person has entered into a contract in British Columbia to purchase or lease subdivided land located outside British Columbia, a time share interest located outside British Columbia or to purchase a shared interest in land located outside British Columbia, and
(a) any of the provisions of this Part have not been complied with, and
(b) the person is a purchaser, owner or lessee named in the contract to purchase the subdivided land or time share interest or is a purchaser or owner named in the contract to purchase a shared interest in land,
the person may rescind the contract, at any time up to one year after the date that the contract was entered into and while the person remains the beneficial owner, by serving written notice of rescission on the developer or the agent for the developer.
(2) A person who has entered into a contract in British Columbia
(a) to purchase or lease a time share interest, located in or outside British Columbia,
(b) to purchase or lease subdivided land located in British Columbia, or
(c) to purchase a shared interest in land located in or outside British Columbia
and who continues to be beneficially entitled to an interest in the subdivided land, the shared interest in 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 relating to a shared interest in land or a time share interest within 7 days after, and in the case of a contract relating to subdivided land within 3 days after, whichever date is the later,
(d) the date the contract was entered into, or
(e) the date the person received a copy of the prospectus required under this Part in respect of that subdivided land, shared interest in land or time share interest.
(3) Subsection (2) does not apply to a sale
(a) in respect of which a prospectus is not required to be filed under section 61 or 62, or
(b) in respect of which a prospectus was filed or ought to have been filed under this Part before February 1, 1982 for a prospectus in respect of an interest described in subsection (2) (a) or (b), or June 8, 1995 for a prospectus in respect of an interest described in subsection (2) (c).
(4) A developer or the developer’s agent who receives money from a person purchasing a shared interest in land located in or outside British Columbia, acquiring a time share interest located in or outside British Columbia or purchasing or leasing subdivided land located in British Columbia must place the money in a trust account in British Columbia and must not withdraw it until after the applicable time period referred to in subsection (2) or, if the person exercises the right under subsection (8), until the time provided for in section 61 (10) (c) or 64 (c) has expired.
(5) Service of notice of rescission may be made by delivering, or mailing by registered mail at any post office in British Columbia, 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 the agent’s office or place of business at, or out of, which the contract was made, or
(c) to the developer at the developer’s address in or outside British Columbia if, for any reason, no agent is acting on behalf of the developer.
(6) 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.
(7) If, at the time a notice of rescission has been served on a developer or an agent, the developer or agent is holding the deposit, or other consideration, the developer or the agent must
(a) return the money in developer’s or agent’s trust account relating to that contract to the person from whom it was received, or
(b) promptly pay the money into the Supreme Court, in which case, section 59 applies.
(8) If a person has entered into a contract in British Columbia
(a) to purchase or lease subdivided land located outside British Columbia,
(b) to purchase or lease a time share interest in real property located outside British Columbia, or
(c) to purchase a shared interest in land located outside British Columbia,
the deposit and other consideration payable by the purchaser or lessee to the developer with respect to the transaction may be paid, at the option of the purchaser or lessee, to the agent referred to in section 61 (10) or 64 (c).
(9) For the purposes of a contract, the payment is 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, or for the purchase of the shared interest in land, is deemed to be amended accordingly.
(10) Every prospectus in respect of
(a) a shared interest in land or a time share interest, must set out the substance of subsections (1) to (9),
(b) subdivided land located outside of British Columbia, must set out the substance of subsections (1) and (5) to (9), and
(c) subdivided land located in British Columbia, must set out the substance of subsections (2) to (7)
in conspicuous type.
79 (1) A person aggrieved by a decision or order by the superintendent under this Act may appeal it to the Commercial Appeals Commission.
(2) A decision or order of the superintendent under section 30, 31 (10), (16) or (17) or 74 is not stayed by the filing of the notice of appeal and an order must not be made under section 12 (2) of the Commercial Appeals Commission Act.
80 (1) By regulation and subject to conditions the superintendent considers necessary, the superintendent may do one or more of the following:
(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;
(c) exempt a specific transaction or class of transaction from some or all of the provisions of Part 2.
(2) If an exemption has been made under subsection (1) in respect of a class, the superintendent by regulation, in circumstances prescribed by the Lieutenant Governor in Council, may suspend or cancel that exemption in respect of a member of or an item in that class, and, if 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.