New Arrangements for Providers of Property Management Services to Multi Unit Developments (MUDs)
The IPFMA met again with Tom Lynch and Liam Roche of the NPSRA office on Friday 10th June in relation to the key provisions for Members. The Bill provides a statutory framework for the regulation of auctioneers, estate agents, letting agents and property management agents. It will establish the PSRA on a statutory basis. The principal role of this new Authority will be to:
• license and regulate Property Services Providers (PSPs), and
• administer an independent system of investigation and adjudication of complaints from consumers about their individual dealings with such service providers.
When is licensing likely to commence?
The Bill passed the Committee stage in the Dail on 19th October. It will progress to the report stage and is likely to be signed into legislation before the year end. The first category of PSP to be licensed by the PSRA will be those providing Property Management Services (Licence Class D) and indications are this is likely to commence in early 2012. The licensing for Licence Classes A, B and C (see below), which will replace the current auctioneer’s licence, will come into force in July 2012.
What are the licensing arrangements?
Once the legislation is enacted everyone providing a property service will be required to hold a licence to operate: this includes a body corporate (company), partnership, sole trader, independent contractor and all of their employees involved in providing services in relation to:
Licence Class Description of Property Service
A The auction of property other than land.
B The purchase or sale, by whatever means, of land.
C The letting of land.
D Property Management Services
An individual can only be licensed to provide services that his/her employer is licensed to provide. A business can only be licensed to provide services which its principal officers (directors, partners, managers, company secretary) are qualified to provide.
A licence will last for 12 months at which point it must be renewed. A Public Register of all licenced PSPs will be published on the PSRA website.
Licence applications forms, and guidance notes on how to complete the application, together with the information to be submitted with the application will be made available by the PSRA once the legislation has been enacted.
What is the Licence Application Process?
The licence application forms will set out the required documentation but it will include:
- Completed application form
- Licence fee
- Proof of qualification (i.e. practice or academic qualification)
- Report from an accountant that proper systems are in place for the protection of client moneys
- Copy of Professional Indemnity Insurance Cover
- Tax clearance cert details for corporate body, partnership, sole trader or independent contractor
- Tax clearance cert details for all directors of the corporate body or partners in a partnership
[Note: It is not necessary to include the physical TCC as the details supplied on the application form will be used to verify the certificate]
A contribution to the Compensation Fund will be requested by the Authority when the application is processed and it is prepared to issue a licence to the applicant.
What will a Licence cost?
There will be a business licence, individual licence and trainee license fee payable on application for a licence – these fees will be refunded if the application is rejected. There are no fee indications at present.
What are the qualification requirements for licensing?
The Bill sets out the requirements for licensing which include minimum educational requirements for practitioners. While the qualification requirements are a matter for decision by the PSRA, once the legislation is enacted, it is expected that either an academic or a practice qualification will apply. Both the minimum academic and practice qualifications will be prescribed in Regulations.
It is expected that the minimum academic qualification will be 120 ECTS credits (European Credit Transfer System) or Level 6 on the National Framework of Qualifications in specified subjects. This translates to a period of two years fulltime academic study.
It is anticipated that a ‘Grandfather Clause’ will apply for those who do not have the necessary academic qualification but can verify that they have been engaged full time in the provision of property management services for a number of years prior to making the licence application. It is anticipated that practice in the property management industry for 3 of the last 5 years will be the practice qualification.
New entrants, or those who are not in a position to verify practice for 3 of the last 5 years, will be required to meet the minimum academic qualification.
It is also proposed that where an employee does not qualify for a licence he/she may obtain a trainee licence and will remain under the supervision of an individual licensee (PSP). The trainee must be undergoing a course which will lead to the 120 ECTS specified in the Regulations.
How will Regulation affect Providers of Property Management Services to Multi-Unit Developments?
All Management Agency businesses will be required to hold a licence. In addition, all employees of that business, who are engaged in providing a property management service, will be required to hold an individual licence. Employers will be responsible to ensure that any PSP in their employment holds a current licence. Individual licences will be in the form of a credit card size laminated card with photo ID.
Section 3(1)(o) of the Bill provides exemptions from licensing for employees of PSPs whose main role is not involved directly in property service provision (e.g. data entry).
Individual licences, whilst issued to individual licensees, will be attached to the business licence. That is, anyone transferring employment will be required to return their individual licence to the PSRA for re-issue under their new employment.
Licensees will be required to:
- Display the business licence at all times in their place of business
- Individual licensees will be required to have their licence in their possession at all times and to produce it on request
- Include their registration number of the business in advertisements, on their stationery and in sales brochures, etc.
- Issue a letter of engagement (contract) to clients to be signed by both parties. If the letter of engagement is not returned signed by the client within 7 days of starting to provide a property service to that client the service provider must withdraw their services.
- Maintain clearly identifiable and separate client bank accounts and accounting records.
- Maintain records of services provided and written correspondence for a period of 6 years.
Management Agent Contract
This is of fundamental importance. The Bill provides that all contracts between a Property Management Agent and an Owners’ Management Company (OMC) must be in writing and in a form specified by the PSRA. A Management Agent is precluded from engaging with an OMC without a detailed written contract. The minimum information which must be included in the contract is set out in schedule 2 of the Bill. [The IPFMA are in discussions with the PSRA on the prescribed form of contract.]
The Act will provide for the establishment, administration and maintenance, of a Compensation Fund. Its purpose is to compensate clients of licensees who suffer a financial loss as a result of dishonesty on the part of a licensee or an employee, partner or agent of a licensee in the course of the provision of a property service. All licensees will be required to contribute set amounts to the fund which will be maintained and administered by the PSRA. The minimum amount which must be held in the Fund at any one time is €2m. This level of funding must be achieved within 4 years of its being established.
What Happens If I Don’t Hold A Licence?
Unless exempted under section 3 of the Bill, it is an offence for a business or an individual to provide a property service, or to hold themselves out as being available to provide a property service, without the appropriate licence. Any person found guilty of such an offence is liable:-
- on summary conviction to a fine not exceeding €5,000 or 12 months imprisonment or both, or
- on conviction on indictment to an unlimited fine or 5 years imprisonment or both.
The Authority’s powers of investigation extend to persons who are suspected of providing a property service or claiming to be available to provide such a service, without a licence.
The Authority may bring and prosecute summary proceeding for such offences and the Director of Public Prosecutions may be asked to bring a prosecution on indictment.
The Authority may also seek a High Court injunction requiring the person to cease the activities concerned.
What happens In The Event Of a Complaint Being Made against a PSP?
The PSRA will only accept complaints against PSPs which are in writing. On receipt of a complaint the PSRA will, if deemed appropriate, appoint an Inspector to investigate it. With the exception of complaints made by employees of the PSP concerned, the Inspector, before commencing the investigation, must:
- give notice in writing to the PSP concerned of the receipt of the complaint together with the particulars of the complaint and
- copies of any documents relevant to the investigation.
For the purpose of carrying out an investigation the Inspector has extensive powers of entry, inspection, examination and search of PSP’s premises and records. The full range of Inspectors powers are set out in section 66 of the Bill.
On completion of the investigation the Inspector must prepare a draft investigation report. The report must be sent to the PSP and the complainant together with a notice, in writing, informing them that they may, within 30 days, make submissions to the Inspector on the report. On expiration of the 30 days the Inspector must compile his/her final report, incorporating as necessary any submissions received, and submit it to the PSRA. The inspector is confined in his/her report to stating that he/she is satisfied that “improper conduct” by the PSP has occurred but is precluded from making any recommendation or expressing any opinion as to the nature or extend of the sanction which might be imposed.
After considering the Inspector’s final investigation report, the Authority, if it considers it necessary or in the interests of observing fair procedures, may:
- conduct an oral hearing, or
- give the report to the PSP and the complainant together with a notice, in writing, informing them that they may, within 30 days, make further submissions to the Authority on the report.
Where the Authority is satisfied that “improper conduct” has occurred, it shall, as it thinks fit, impose either a “minor sanction” or a “major sanction”. A “minor sanction” includes a reprimand, warning, caution or advice. A “major sanction” includes fines of up to €250,000 and the suspension or revocation of the PSP’s licence.
Where the Authority is not satisfied that “improper conduct” has occurred it may initiate a further investigation or dismiss the complaint. A PSP may appeal a decision of the Authority to impose a “minor sanction” to the Property Services Appeals Board. However, and appeal against a decision of the Authority to impose a “major sanction” must be appealed to the High Court. On hearing of the appeal the High Court may either confirm, vary or dismiss the decision of the Authority. Where a PSP does not appeal a decision of the Authority to impose a “major sanction” to the High Court, the Authority must apply to the High Court to have its decision confirmed before it becomes effective.
Property Services Appeals Board
An independent Property Services Appeal Board will be established to hear and determine appeals against specified decisions of the Authority, namely:
- a decision to impose a “minor sanction” following an investigation,
- a decision declining to investigate a complaint,
- a decision to dismiss a complaint,
- a decision to refuse to make a payment from the Compensation Fund (or the size of the payment), or
- a decision to refuse to grant a licence.
Revocation/Suspension of a Licence
A PSP’s licence may be suspended or revoked:
- by the PSRA following an investigation, or
- by a court where a PSP is found guilty of an offence under the legislation.
A licence may be revoked either for a period of time or permanently.
Where a PSP is adjudicated bankrupt the licence will be suspended immediately and will remain suspended until it expires or the bankruptcy is discharged.
The Authority may apply to the High Court, at any time, for an order to suspend a PSP’s licence where it considers that immediate suspension of the licence is necessary to protect clients or customers, or potential customers.
Publication of Decisions
The Authority is required to publish particulars of:
- PSP’s convictions for unlicensed operation,
- refusals by the Authority to renew a licence,
- decisions to suspend or revoke a licence, and
- the imposition of “major sanctions”
The PSRA are drafting Guidance Notes for Practitioners on the new licensing regime together with a guide for consumers of property services and a Booklet for residents in Multi-Unit Developments to guide them on how OMCs function and the key requirements under the Multi-unit Developments Act. These will be available for release once the Bill is enacted.
Should you have any specific concerns in relation to the Property services (Regulation) Bill 2009, which is available for inspection on the PSRA website - www.psr.ie, please don’t hesitate to let us know firstname.lastname@example.org
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