Estate Agents Act
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CONSOLIDATED TO 30 JUNE 2012
LAWS OF SEYCHELLES
ESTATE AGENTS ACT
[1st January, 1970]
ARRANGEMENT OF SECTIONS
1. Short title.
3. Establishment of Estate Agents Board.
4. The Estate Agents Register.
5. Application for registration.
6. Persons qualified for registration.
7. Security to be furnished by an estate agent.
8. No licence to be issued to estate agent in certain cases.
9. Keeping of accounts.
10. Code of conduct.
11. Grounds for disciplinary proceedings.
12. Hearing and determination of disciplinary cases.
13. Persons treated as carrying on business as estate agents.
14. Provisions relating to body corporate and to acts or omissions of employees or agents.
16. Power to make regulations.
1. This Act may be cited as the Estate Agents Act.
2. In this Act unless the context otherwise requires ?
"applicant" means a person who asks an estate agent to supply him with particulars of property and is not liable to pay such estate agent any fee;
"the Board" means the Estate Agents Board Established under subsection (1) of section 3;
"client" means a person who employs an estate agent and is responsible for his fee and does not include an applicant;
“client’s money” means any money received by an estate agent in the course of his work as a contract deposit or pre-contract deposit-
(i) in respect of the acquisition of an interest in land in Seychelles;
(ii) in respect of a connected contract whether that money is held or received by him as agent or stakeholder or in any other capacity.
"director" means ?
(a) in relation to a body corporate the affairs of which are managed by a board of directors or similar body, a member of that board or similar body;
(b) in relation to a body corporate the affairs of which are managed by a single director or similar person, that director or person;
(c) in relation to a body corporate the affairs of which are managed by the members themselves, a member of the body corporate;
and includes any person in accordance with whose directions or instructions the directors of a body corporate, defined in accordance with the preceding provisions of this section, are accustomed to act:
Provided that a person shall not, within the meaning of this section, be deemed to be a person in accordance with whose directions and instructions the directors of a body corporate are accustomed to act by reason only that the said directors act on advice given by him in any professional capacity;
"employee" in the case of a body corporate includes a director;
"land" means land in Seychelles and includes land covered with water, or things growing on land and buildings and other things attached to land, whether or not such things or buildings are owned, acquired or disposed of separately from the land, and also any right or beneficial interest in or over land;
(a) a failure to disclose a personal interest;
(b) a discrimination against a prospective client regarding the arrangement or performance of services;
(c) a misrepresentation as to the existence or status of a prospective purchaser or vendor.
"newspaper" includes a magazine or other periodical publication;
"payment" does not include payment limited to the reimbursement of expenses or made to an employee by his employer;
"person" includes a body corporate;
"practice as an estate agent" means the doing, in connection with the sale or proposed sale of land, of any of the following acts, namely, advertising in any medium including the internet any sale of land,
bringing together or taking steps to bring together the vendor and a prospective purchaser, negotiating as to the terms of the sale with the vendor or a prospective purchaser; but the doing of any act shall not cause a person to be treated for the purpose of these provisions as having practised as an estate agent if it was done by, or by an employee of ?
(a) the proprietor of a shop or newspaper by way of the display of an advertisement therein; or
(b) an attorney or a notary in the course of his practice as such; or
(c) an auctioneer in the course of an auction held by him;
"the register" means the Estate Agents Register;
"sale of land" includes the grant of a tenancy at a rent, and any other disposal for valuable consideration of an estate, interest or right in or over land, whether subsisting before or created by the disposal, and "vendor" and "purchaser" shall be construed accordingly.
3. (1) There shall be established a board to be known as the Estate Agents Board which shall be constituted and shall operate as provided in the Schedule.
(2) The general functions of the Board shall be to secure adequate standards of competence and conduct among persons carrying on business as estate agents. The Board shall also discharge the specific functions assigned to it by or under the provisions of this Act.
4. (1) The Board shall establish and maintain a register called the Estate Agents Register which shall be made available at all reasonable times for inspection by members of the public without charge.
(2) The Board shall cause to be entered in the register the name and particulars of every person qualified for registration who has furnished security in accordance with the provisions of section 7.
(3) The Board shall cause to be removed from the register the name of any person ?
(a) who has died; or
(b) who has left Seychelles and who, in the opinion of the Board, does not intend to return thereto; or
(c) who, in the opinion of the Board, has ceased to carry on the business of an estate agent; or
(d) whose name has been ordered to be removed from the register.
(4) The Board shall publish in the Official Gazette a notice of every entry made in the register udner subsection (2) and every removal effected under subsection (3).
5. (1) A person wishing to have his name entered in the register shall submit a written application to the Board. He shall furnish such particulars and information as the Board may require to deal with his application.
(2) A person who makes an application udner subsection (1) shall cause a notice thereof in the prescribed form to be published in the Official Gazette and two issues of a daily newspaper.
6. (1) A person shall be qualified for registration if he satisfies the Board that he is of good character and integrity and has sufficient competence for carrying on business as an estate agent:
Provided that, a person shall for the purposes of this subsection be deemed to have sufficient competence for carrying on business as an estate agent if such person holds a certificate of practice in estate agency or a minimum of five years’ experience in estate agency work.
(2) The Board may, in order to satisfy itself as to the character or competence of a person applying for registration, defer its decision on such application for such time as it may think fit.
(3) A person whose application for registration is refused on the ground of insufficient competence for carrying on business as an estate agent may appeal against such refusal to the Supreme Court whose decision shall be final and conclusive. On any such appeal ?
(i) the Board may appear as respondent; and
(ii) the Supreme Court may make such order as it thinks fit.
7. (1) No person shall be registered as an estate agent until he shall have furnished security to the amount of R250,000 the object of which security shall be to secure the execution of all judgments pronounced against such estate agent in relation to the exercise of his functions.
(2) Such security shall be furnished to the satisfaction of the Board and may be ?
(i) a professional indemnity insurance policy;
(ii) a bond of a bank;
(iii) a first line mortgage on immovable property; or
(iv) a cash deposit in the Treasury.
(3) If at any time the Board is of opinion that the security furnished has become invalid or insufficient, the estate agent may be required to furnish fresh or additional security.
(4) When in relation to or on account of any security furnished under this Act, the surety or sureties have died or been compelled to pay the whole or a portion of the sum for which the security has been given, or if the security furnished has become invalid or insufficient, the estate agent may be suspended from carrying on business as an estate agent by order of the Board until fresh or additional security has been furnished to the satisfaction of the Board.
8. No licence shall be issued to a person for carrying on business as an estate agent under the provisions of the Licences Act *if the name of such person is not on the register or if such person has been suspended from carrying on business as an estate agent and the order of suspension is effective.
9. (1) A person shall not accept a client’s money in the course of estate agency work unless there is in force a guarantee udner which, in the event of that person failing to account for such money to the person entitled to it, the first mentioned person’s liability will be made good by the guarantor.
(2) A client’s money received by an estate agent-
(a) shall be held by the estate agent on behalf of the client who is entitled to call for it to be paid over to him or to be paid on his direction or to have it otherwise credited to him, or
(b) if it is so received in his capacity as stakeholder, shall be held by him on behlaf of the person who may become entitled to it on the occurrence of the event against which the money is held.
(3) An estate agent shall in accordance with regulations made udner section 9A, without delay, pay the money into a client account.
9A. (1) The Minister may make regulations in respect of the opening and keeping of client accounts, the keping of accounts and records relating to a client’s money and the auditing of those accounts.
(2) The regulations may specify-
(a) the institutions in which client accounts are authorised to be opened;
(b) classes of persons to whom or circumstances in which the provisions of section 9(2) shall not apply;
(c) circumstances in which money other than a client’s money may be paid into a client account;
(d) the occasions on which and the perosns to whom money held in a client account may be paid out.
(3) The regulations may also require-
(a) acounts to be drawn up in respect of specified accounting periods and to be audited by a licensed auditor within a specified time after each such period:
(b) the auditor to report whether the requirements of the Act and regulations have been complied with;
(c) a person who maintains a client account to produce to the Board or a person authorised by the Board the latest auditor’s report.
9B. (1) Subject to this section, regulations may be made requiring a person who has received a client’s money to account in such cases as may be prescribed to the person who is or becomes entitled to the money for the interest which was or could have been earned by depositing the money in an account at an institution authorised udner section 9A(2)(a).
(2) The cases in which a person is required to account for interest may be defined by the regulations, amongst other things, by reference to the amount of money held or recived by him or the period for which it is likely to be retained or both.
(3) Except as provided by regulations under subsection (1) and subject to subsection (4), a perosn who maintains a client account in which he keeps a client’s money generally shall not be liable to any person for interest received by him on the money in that account.
(4) Nothing is this section or regulations made udner section shall affect any arrangement in writing , between an estate agent and any other person as to the application of, or any interest on, money in which that other person has or may have an interest.
(5) Failure of any person to comply with any regulation made under this section may be taken into account by the Board in any disciplinary proceediings but shall not render that person liable to any prosecution unde section 17(3).
10. (1) The Board may draw up rules specifying acts or omissions which, if done or made by a practising estate agent, constitute conduct which in the opinion of the Board is contrary to the public interest and amounts to as an estate agent.
(2) The rules shall serve as a guide to practising estate agents and persons concerned with the conduct of practising estate agents, but the lack of mention in them of a particular act or omission shall not be taken as conclusive.
(3) In determining whether any act or omission is to be specified in the rules as amounting to malpractice, account shall be taken of the fact that estate agency has both professional and commercial attributes, and of the desirability of not preventing estate agents from making proper use of new techniques and providing an efficient service to the public; and account shall be taken of those matters, as well as of the rules, by the Board or the Supreme court in determining under the following provisions of this Act whether any person has been guilty of conduct amounting to malpractice in his practice as an estate agent.
11. Where in the case of any person whose name is in the register it is alleged or it comes to the knowledge of the Board that ?
(a) he has been guilty of conduct which is contrary to the public interest ad amounts to malpractice; or
(b) he has without reasonable excuse contravened the provisions of section 9, 9A or 9B; or
(c) he has, in his practice as an estate agent, employed or used the services of a person whose application for registration as an estate agent has been refused on grounds of character or whose name has been removed from the register and has not been reinstated therein or who is under suspension from carrying on business as an estate agent; or
(d) he has been convicted, after his name was entered in the register, whether in Seychelles or elsewhere, for an offence involving fraud or other dishonesty,
the case shall be dealt with by the Board.
12. (1) The Board shall hear and determine any case falling within the provisions of section 11 and if they find the allegation or facts proved ?
(a) may order the name of the estate agent to be removed from the register; or
(b) may suspend the estate agent from carrying on business as an estate agent during such period as may be specified in the order.
(2) Notice of an order made under subsection (1) shall be given to every person who is a party to the proceedings within fourteen days after the making of the order.
(3) A person in respect of whom an order is made under subsection (1) may, within 14 days after notice of the order was given to him or such longer period as the Court may allow, appeal against the order to the Supreme Court.
(4) The Board may appear as respondent on any such appeal.
(5) On the hearing of the appeal the Supreme Court may make such order as it thinks fit and its decision shall be final and conclusive.
(6) An order made under subsection (1) shall not take effect before the expiration of the time limited for appealing against it, and where an appeal has been lodged the order shall not take effect before the appeal is determined or discontinued.
13. For the purposes of this Act or of the Licences Act, a person shall be treated as carrying on business as an estate agent if, and only if, he or a partnership in which he is a member ?
(a) receives payment for acts done by way of practice as an estate agent by him or by a partner f his, or by an employee or agent of his or of all or any of the partners; or
(b) holds himself or itself out as prepared, in return for payment, to undertake the doing by any such person of acts by way of practice as an estate agent,
but an individual shall not be so treated by reason only of receiving a payment for an act done by him on an isolated occasion and not by way of business.
14. (1) Where any act or omission was done by or with the knowledge, consent or connivance of or was attributable to any director, manager, secretary or similar officer of a body corporate, or any person purporting to act as any such officer, such act or omission shall be deemed to be an act or omission on the part of the body corporate.
(2) Without prejudice to the provisions of subsection (1) of this section, an estate agent shall be answerable for any act or omission done by his employee or agent by way of practice as an estate agent and if such employee or agent does any such act or omission which is contrary to the public interest and amounts to disgraceful conduct or which is an offence, the estate agent shall be liable to the forfeitures, fines, penalties and other adverse consequences following therefrom, unless he proves that such act or omission was done without his knowledge, consent or connivance.
(3) When the person applying for registration is a body corporate the provisions of subsection 6(1) relating to the good character, integrity and competence shall apply to a director who is also the manager of that body corporate as if that director were the person applying for registration.
(4) After the name of a body corporate has been entered in the register any change in the directorship or the management of the affairs of such body corporate must be approved in writing by the Board and unless and until such approval has been given such body corporate shall be deemed to have been suspended from carrying on business as an estate agent by order of the Board. If the Board refuses to give such approval any person aggrieved by such refusal may appeal to the Supreme court and the provisions of subsections (4) and (5) of section 12 shall apply to such appeal.
15. (1) No person shall be employed as an estate agent unless a contract has been signed by or on behalf of the estate agent and the client.
(2) Every such contract shall-
(a) specify the land and the transaction to be carried out by the estate agent;
(b) subject to such regulations if any as may be made in relation to fees specify, or provide for the determination of, the fees payable by the client. In this paragraph, “fees” may include any amount stipulated as the fee in respect of abortive work done by the estate agent;
(c) state the period of validity of the contract; and
(d) state whether the estate agent is the sole agent of the client in respect of the subject matter of the contract.
(3) Any dispute pertaining to the performance of any contract may, if the parties agree, be referred to and settled by the Board.
16. The Minister may make regulations to carry out the objects and provisions of this act and, without prejudice to the generality of the foregoing power, such regulations may?
(a) amend, add to or vary the schedule;
(b) prescribe procedure, forms and fees;
(c) prescribe what person shall, for the purposes of subsection (1) of section 6, be deemed to have sufficient competence for carrying on business as estate agents;
(d) create offences and provide that contravention of or failure to comply with any such regulations shall be an offence and prescribe for such offences maximum penalties not exceeding a fine of R20,000 and two years imprisonment.
17. (1) A person whose name is not in the register or whose name has been removed from the register or who has been suspended from carrying on business as an estate agent shall not carry on such business during such time as his name is not entered or reinstated in the register or during such time as the order of suspension is effective. Any peron who contravenes the provisions of this subsection is guilty of an offence and is liable to imprisonment for two years and to a fine of R20,000.
(2) The provisions of subsection (1) shall in no way affect or be affected by the provisions of the Licences Act which impose penalties for trading without a licence.
(3) Subject to section 9B(5), a person who contravenes any provision of section 9 or 9A of this Act or regulations made udner this Act if guilty of an offence and is liable on conviction to a fine of R20,000 and to imprisonment for two years.
1. The Board shall be composed of such members, not less than three, as the President, may from time to time appoint. The Chairman of the Board shall be nominated by the President from among its members.
2. In case of death, absence from Seychelles, resignation, revocation of appointment or incapacity to act of the Chairman or of any member of the Board or when a vacancy arises from any other cause, the President may make the necessary appointments to fill the vacancy either temporarily or permanently: Provided that when the Chairman is absent from any meeting or a vacancy arises in the chairmanship and no new appointment has been made, the members of the Board may choose one of their number to preside at the meeting.
3. Three members of the Board shall form a quorum.
4. A decision of the Board shall be taken on a majority of the votes of members present and voting but on any matter on which the votes are equally divided the Chairman or, in his absence, the member of the Board presiding at the meeting, shall have a second or casting vote.
5. A decision of the Board shall be authenticated under the hand of the Chairman or if he was absent from a meeting, of the member presiding at the meeting.
SCALE OF FEES
1. Transfer of land
(a) For negotiating a sale or purchase of land (including the transfer of an existing lease)?
5% on the first Rs.10,000;
1½% on the next Rs.90.000;
1% on the next Rs.150,000;
½% on the residue;
Minimum fee Rs.250;
(b) For negotiating the purchase of a particular property named by the client ?
1% on the first Rs.200,000;
½% on the residue;
Minimum fee Rs.250;
(a) For negotiating a lease (excluding the transfer of an existing lease)?
(i) where the lease is for a term certain of twelve months or more, 8% on one year's rent;
(ii) where there is a periodic tenancy which subsists for twelve months or more, a fee to be fixed by the Chairman of the Board on taxation, subject to a maximum of 8% on one year's rent;
(iii) where there is a peiodic tenancy for a term certain which subsists for less than twelve months, 8% on the amount of the rent payable under the lease.
In addition to the foregoing charges on payment of a premium and any consideration which is equivalent thereto?
5% on the first Rs.10,000;
1½% on the residue
(b) For negotiating a lease of a particular property named by a client ?
3/4 of the fee payable under the scale set out in paragraph 2(a) above.
3. For abortive work under paragraphs 1 and 2 above, a fee to be fixed by the Chairman of the Board on taxation.
Estate Agents Regulations
[29th November 2004]
1. These Regulations may be cited as the Estate Agents Regulations.
2. A person who makes an application for registration as a estate agent is required to publish in the Official Gazette and 2 issues of a daily newspaper a notice substantially in the form set out below -
ESTATE AGENTS ACT
Notice is hereby given under Section 5(2) of the Estate Agents Act that I/We …………………………………… of …………………… have applied to the Estate Agents Board for registration as an Estate Agent.
Any person who knows any lawful reasons why the aforesaid application should not be granted may forward a written and signed statement of such reasons, within 14 days of the last publication of this notice, to the Chairman of the Estate Agents Board, Ministry of Land Use and Habitat, P.O. Box 199, Victoria.
NAME AND SIGNATURE OF
In the case of a body corporate)