Acts and Regulations

2011, c.215 - Real Estate Agents Act

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Document at 10 September 2015
2011, c.215
Real Estate Agents Act
Deposited May 13, 2011
Definitions
1The following definitions apply in this Act.
“agent” means a person who, for compensation, gain or reward or hope or promise of compensation, gain or reward, either alone or through one or more officials or salespersons, trades in real estate for another person, and a person who holds himself, herself or itself out as such. (agent)
“Association” means The New Brunswick Real Estate Association as constituted under Real Estate Agents Act. (Association)
“bond” , except where the context otherwise requires, means the security furnished as provided by regulation. (cautionnement)
“business” means an undertaking carried on for the purpose of gain or profit and includes an interest in any such undertaking and includes, but is not limited to, a boarding house, hotel, store, tourist camp and tourist home. (entreprise) ou (affaires)
“Commission” means the Financial and Consumer Services Commission continued under the Financial and Consumer Services Commission Act. (Commission)
“Director” means the Director of Consumer Affairs appointed under the Financial and Consumer Services Commission Act and includes any person designated by the Commission or the Director to act on the Director’s behalf.(directeur)
“manager” means a person who is employed by an agent and who supervises, or who is qualified to supervise, salespersons of the agent. (gérant)
“Minister” Repealed: 2013, c.31, s.33
“official” includes president, vice-president, secretary, treasurer, managing director, director, general manager, department manager, branch office manager and every person acting in a similar capacity whether so designated or not. (dirigeant)
“prescribed” means prescribed by this Act, the regulations or, if the context requires, the rules made by the Commission under the Financial and Consumer Services Commission Act. (prescrit)
“real estate” includes real property and leasehold property, and a business whether with or without premises and the fixtures, stock-in-trade, goods or chattels in connection with the operation of the business. (biens réels)
“salesperson” means a real estate salesperson and includes a person employed, appointed or authorized by an agent to trade in real estate. (vendeur)
“trade” or “trading” includes a disposition or acquisition of or transaction in real estate by sale, purchase, agreement for sale, exchange, option, lease, rental or otherwise and an offer or attempt to list real estate for the purpose of such a disposition or transaction, and an act, advertisement, conduct or negotiation, directly or indirectly, in furtherance of any disposition, acquisition, transaction, offer or attempt, but does not include a listing service operated by or for an organized real estate board in a community, and the verb “trade” has a corresponding meaning. (opération immobilière) ou (effectuer des opérations immobilières)
“Tribunal” means the Tribunal established under the Financial and Consumer Services Commission Act. (Tribunal)
R.S.1973, c.R-1, s.1; 1978, c.D-11.2, s.34; 1995, c.31, s.1; 2006, c.16, s.154; 2012, c.39, s.128; 2013, c.31, s.33
Necessity of licence
2No person shall trade or hold himself, herself or itself out as trading in real estate
(a) as an agent unless that person holds a valid and subsisting licence as an agent,
(b) as a manager of an agent unless that person holds a valid and subsisting licence as a manager, or
(c) as a salesperson of an agent unless that person holds a valid and subsisting licence as a salesperson or manager.
R.S.1973, c.R-1, s.2; 1983, c.75, s.2
Necessity of corporate applicant to nominate individual to act for purposes of licence
3When a corporation applies for a licence as a manager or a salesperson, it shall nominate an individual to act for it for the purposes of the licence, and a licence issued shall be in the name of the corporation and shall designate on the licence the name of the individual who is authorized to act on its behalf for the purposes of the licence.
1983, c.75, s.3
Agent’s licence
4(1)No licence shall be issued to an agent unless
(a) the agent meets the qualification requirements established by or in accordance with the regulations,
(b) the agent files with the Director, in a form approved or provided by the Director, a bond in the prescribed amount that is payable to the Commission,
(c) the agent submits to the jurisdiction of the courts of the Province and provides an address for legal service in the Province,
(d) the agent maintains a permanent office in the Province, and
(e) if an individual, the agent is a citizen of Canada or has the status of a permanent resident of Canada.
4(2)For the purposes of paragraph (1)(a), if an agent is a corporation, the following individuals shall meet the qualification requirements established by or in accordance with the regulations:
(a) if the agent’s manager is an individual, the manager; or
(b) if the agent’s manager is a corporation, the manager’s nominee.
R.S.1973, c.R-1, s.3; 1983, c.75, s.4; 1984, c.30, s.4; 1986, c.67, s.1; 1987, c.50, s.2; 2013, c.31, s.33
Necessity of licence for each place of business
5No agent shall conduct a business of trading in real estate from more than one place at which the public is invited to deal unless the agent is licensed in respect of each place, one of which shall be designated in the licence as the main office and the remainder as branch offices.
1983, c.75, s.5
Manager’s licence
6(1)No licence shall be issued to a manager unless
(a) the manager, or if a corporation its nominee, meets the qualification requirements established by or in accordance with the regulations,
(b) the manager submits to the jurisdiction of the courts of the Province and provides an address for legal service in the Province,
(c) the manager files with the Director a declaration by an agent that the manager is to act as a manager employed by and representing that agent, and
(d) the manager, or if a corporation its nominee, is a citizen of Canada or has the status of a permanent resident of Canada.
6(2)A manager’s licence shall be valid only while the manager is acting as a manager employed by and representing the agent making the declaration referred to in paragraph (1)(c), and the termination of the employment of the manager with that agent shall operate as a cancellation of the manager’s licence.
1983, c.75, s.5; 1984, c.30, s.4; 1986, c.67, s.2; 2013, c.31, s.33
Office to be supervised by manager
7An agent shall ensure that each office with five or more salespersons is under the supervision of a manager.
1995, c.31, s.2
Duty of manager
8(1)A manager shall not
(a) manage more than one office, or
(b) act for more than one agent.
8(2)Despite subsection (1), if the Director is satisfied that it is not contrary to the public interest and subject to the terms and conditions the Director may impose, the Director may permit a manager
(a) to manage more than one office, or
(b) to act for more than one agent.
1995, c.31, s.2; 2013, c.31, s.33
Salesperson’s licence
9(1)No licence shall be issued to a salesperson unless
(a) the salesperson, or if a corporation its nominee, meets the qualification requirements established by or in accordance with the regulations,
(b) the salesperson submits to the jurisdiction of the courts of the Province and provides an address for legal service in the Province,
(c) the salesperson files with the Director a declaration by an agent that the salesperson is to act as a salesperson employed by and representing that agent, and
(d) the salesperson, or if a corporation its nominee, is a citizen of Canada or has the status of a permanent resident of Canada.
9(2)A salesperson’s licence shall be valid only while the salesperson is acting as a salesperson employed by and representing the agent making the declaration referred to in paragraph (1)(c), and the termination of the employment of the salesperson with that agent shall operate as a cancellation of the salesperson’s licence.
R.S.1973, c.R-1, s.4; 1983, c.75, s.6; 1984, c.30, s.4; 1986, c.67, s.3; 2013, c.31, s.33
Issuance, refusal, suspension, cancellation and expiry of licence
10(1)On receipt of an application for a licence and on payment of the prescribed fee, if the Director is satisfied that the applicant is suitable to be licensed and that the issuing of the proposed licence is not objectionable for any reason, the Director may issue to the applicant a licence authorizing the holder during the term of the licence to carry on the business of an agent or act as a manager or salesperson within the Province, but if, after due investigation made by the Director, the Director is, for any reason, of the opinion that the applicant should not be granted a licence, the Director may refuse a licence to the applicant.
10(2)The Director may suspend or cancel a licence if he or she is of the opinion it is in the public interest to do so.
10(3)When the licence of an agent is suspended or cancelled, the licences of all salespersons and managers of the agent are also suspended or cancelled.
10(4)The licence of an agent and of every manager and salesperson of that agent expires on the last day of the twelfth month following the issuance of the agent’s licence.
10(5)No person whose licence has been cancelled because of the person’s misconduct shall be entitled to apply for a new licence for one year after the cancellation.
10(6)A person dissatisfied with a decision of the Director under this section may appeal the decision to the Tribunal.
10(7)When a licence has been suspended or cancelled by or under this Act, the holder of the licence shall return the licence without delay to the Director.
R.S.1973, c.R-1, s.5; 1979, c.41, s.106; 1980, c.32, s.32; 1983, c.75, s.7; 1984, c.30, s.1; 1986, c.67, s.4; 1989, c.34, s.1; 1995, c.31, s.3; 2013, c.31, s.33
Application for licence
11(1)An application for a licence shall be made in writing on the form provided by the Director and shall be accompanied by the prescribed fee.
11(2)Before issuing a licence, the Director may make the inquiries and require the information that the Director considers desirable and shall require the furnishing of the security or proof of financial responsibility that is prescribed by regulation.
11(3)An application for a licence shall be accompanied by a bond in the amount and form, subject to the provisions of section 31, that may be prescribed, or a certificate of a surety company that a surety bond previously filed on behalf of the applicant is in full force and effect.
R.S.1973, c.R-1, s.6; 1986, c.67, s.5; 2013, c.31, s.33
Signature of Director on licence
2013, c.31, s.33
12The signature of the Director on a licence issued under this Act may be printed, stamped or otherwise mechanically reproduced on the licence.
1989, c.34, s.2; 2013, c.31, s.33
Address for service
13(1)An applicant or licensee may change the applicant’s or licensee’s address for legal service by delivering written notice to the Director of the applicant’s or licensee’s new address for legal service.
13(2)A notice under this Act or the regulations shall be deemed to be served for all purposes if delivered or sent by registered or certified mail to the latest address for legal service provided by the applicant or licensee.
R.S.1973, c.R-1, s.7; 1983, c.75, s.8; 2013, c.31, s.33
Power of Director to require further information
2013, c.31, s.33
14At any time, the Director may require further information or material to be submitted by an applicant or a licensee within a specified time limit and may require, if the Director so desires, verification by affidavit or otherwise of any information or material then or previously submitted.
R.S.1973, c.R-1, s.8; 1983, c.75, s.9; 2013, c.31, s.33
Requirement to notify Director
2013, c.31, s.33
15(1)An agent shall notify the Director without delay in writing of the following:
(a) that a manager who holds a licence under this Act is no longer actively and directly involved in the management of the business of the agent;
(b) a change in officials;
(c) a change in the partners in the case of a partnership;
(d) the commencement and termination of employment of a salesperson and, if a salesperson is discharged because of misconduct or an allegation of misconduct, details of the relevant circumstances;
(e) a conviction against the agent of an offence involving fraud, theft or misrepresentation or conspiracy to commit an offence involving fraud, theft or misrepresentation under the Criminal Code (Canada) or the Competition Act (Canada);
(f) a judgment or default judgment against the agent based on or involving a finding or allegation of misrepresentation, negligence or fraud;
(g) proceedings taken against the agent under the Bankruptcy and Insolvency Act (Canada); and
(h) a conviction referred to in paragraph (2)(a), a judgment or default judgment referred to in paragraph (2)(b) or proceedings referred to in paragraph (2)(c) against a salesperson of the agent of which the agent has knowledge.
15(2)A salesperson, manager or official of an agent and, in the case of a corporate manager or salesperson, its nominee, shall notify the Director without delay in writing of the following:
(a) a conviction against the salesperson, manager, official or nominee of an offence involving fraud, theft or misrepresentation or conspiracy to commit an offence involving fraud, theft or misrepresentation under the Criminal Code (Canada) or the Competition Act (Canada);
(b) a judgment or default judgment against the salesperson, manager, official or nominee based on or involving a finding or allegation of misrepresentation, negligence or fraud; and
(c) proceedings taken against the salesperson, manager, official or nominee under the Bankruptcy and Insolvency Act (Canada).
R.S.1973, c.R-1, s.9; 1983, c.75, s.10; 1986, c.67, s.10; 1995, c.31, s.4; 2013, c.31, s.33
Death of licensed agent
16(1)Despite paragraph 4(1)(a), when a licensed agent who is an individual dies or becomes incapacitated, on receipt of an application for a licence and on payment of the prescribed fee, the Director may issue a temporary agent’s licence to a person who, in the opinion of the Director, is qualified to act as an agent.
16(2)The licence issued under subsection (1) shall be for a term of not more than six months and shall authorize the holder to carry on the business of an agent only in relation to the trading in real estate of the deceased or incapacitated agent.
16(3)Despite any other provision of this Act, when a licence is issued under subsection (1), a salesperson licensed as a salesperson under this Act who was employed by the deceased or incapacitated agent at the time of the death or incapacitation of the agent shall be deemed to be licensed as a salesperson under this Act and to be employed by and to represent the agent who is issued the temporary agent’s licence under subsection (1) for the period for which the temporary licence is issued except that termination of the employment of the salesperson with the agent who is issued the temporary agent’s licence under subsection (1) shall operate as a cancellation of the salesperson’s licence.
16(4)Despite any other provision of this Act, when a licence is issued under subsection (1), a manager licensed as a manager under this Act who was employed by the deceased or incapacitated agent at the time of the death or incapacitation of the agent shall be deemed to be licensed as a manager under this Act and to be employed by and to represent the agent who is issued the temporary agent’s licence under subsection (1) for the period for which the temporary licence is issued except that termination of the employment of the manager with the agent who is issued the temporary agent’s licence under subsection (1) shall operate as a cancellation of the manager’s licence.
R.S.1973, c.R-1, s.10; 1989, c.34, s.3; 1995, c.31, s.5; 2013, c.31, s.33
Death of licensed manager
17(1)Despite paragraph 6(1)(a), when a licensed manager who is an individual dies or becomes incapacitated, on receipt of an application for a licence and on payment of the prescribed fee, the Director may issue a temporary manager’s licence to a person who, in the opinion of the Director, is qualified to act as a manager.
17(2)The licence issued under subsection (1) shall be for a term of not more than six months and shall authorize the holder to act as a manager of the agent who has filed a declaration under paragraph 6(1)(c) in respect of the deceased or incapacitated manager.
1989, c.34, s.4; 2013, c.31, s.33
Trust account
18(1)An agent shall have at least one interest bearing account for deposits
(a) at an institution that has in force a policy of insurance for such deposits under the Canada Deposit Insurance Corporation Act (Canada), or
(b) at an institution that is authorized by the regulations to accept deposits.
18(2)An account under subsection (1) shall be designated as a trust account both in the books of the agent and in the records of the institution.
R.S.1973, c.R-1, s.11; 1983, c.75, s.11; 1995, c.31, s.6
Payments into trust account
19(1)Subject to subsection (2), an agent shall pay without delay into the agent’s trust account all money received in connection with a trade other than money which belongs to the agent.
19(2)When an agent receives a cheque as a deposit with an offer, the agent shall not be required to place the cheque into the agent’s trust account before the offer is accepted, but the agent shall place the cheque into the agent’s trust account without delay on the acceptance of the offer.
19(3)Subject to subsection (4), no agent shall pay into the agent’s trust account any money which belongs to the agent.
19(4)When an agent receives money representing in part money belonging to another person and in part money due to the agent, if practicable, the agent may divide the money and pay into the trust account only that part which belongs to the other person, but otherwise the agent shall pay the whole of the money into the trust account.
R.S.1973, c.R-1, s.12; 1983, c.75, s.12
Payments out of trust account
20No money shall be drawn from a trust account except in accordance with the terms on which it was received.
R.S.1973, c.R-1, s.13; 1983, c.75, s.13
Agent as trustee in respect of deposit
21(1)Subject to subsection (3), an agent who receives a deposit on a trade in real estate shall hold it as trustee on behalf of all the parties to the trade in accordance with their respective rights under the offer or contract and not as agent for any one of them, and the agent shall have the responsibility to pay or account for it to the proper party.
21(2)In the event of a dispute between the parties in respect of a deposit under subsection (1), the agent may, and if it is necessary to resolve the dispute the agent shall, pay the deposit into court on an interpleader.
21(3)Despite subsection (1), an agent may receive a deposit as agent for one party to a trade in real estate if the offer or contract under which the deposit is received so provides and every other party acknowledges this provision in writing, either in a separate document or in a separate part of the offer or contract.
1983, c.75, s.14
Resolution of dispute respecting deposit
22(1)Despite section 21, in the event of a dispute between the parties in respect of a deposit referred to in subsection 21(1) and with the agreement of the parties, the agent who receives the deposit may apply to the Director to resolve the dispute between the parties.
22(2)On receipt of an application under subsection (1), the Director may conduct a hearing to determine the rights of the parties in respect of the deposit.
22(3)An application under subsection (1) shall
(a) show the names and addresses of all the parties claiming an interest in the deposit,
(b) state that the parties have agreed to have the Director resolve the dispute, and
(c) state that the applicant agrees to dispose of the deposit as the Director directs.
22(4)The Director shall determine the rights of the parties in respect of the deposit and shall direct the disposition of the deposit as between the parties.
22(5)If a party is dissatisfied with the decision of the Director under subsection (4), the party may appeal the decision to the Tribunal.
22(6)Repealed: 2013, c.31, s.33
22(7)The written decision of the Director shall be sent to the parties by ordinary mail and shall be deemed to have been received by the parties within seven days after the decision was mailed.
22(8)Repealed: 2013, c.31, s.33
22(9)This section applies to deposits that do not exceed an amount prescribed by regulation.
1995, c.31, s.7; 2013, c.31, s.33
Books, records and accounts
23(1)An agent shall keep at the agent’s office, or at any other place authorized by the Director in writing, the books, records and accounts in connection with the agent’s business that may be necessary to show and readily distinguish
(a) all money received from or on behalf of and all money paid to or on behalf of others, and the amount of money held on behalf of each person, and
(b) all money received and paid on the agent’s own behalf.
23(2)The books, records and accounts referred to in subsection (1) shall be kept up to date.
1983, c.75, s.14; 2013, c.31, s.33
Maintenance of records
24An agent shall keep the following records at the agent’s office, or at any other place authorized by the Director in writing, for a period of not less than six years:
(a) a copy of each written offer to purchase real estate obtained by the agent or the agent’s manager or salesperson; and
(b) a record showing in respect of each transaction or trade
(i) the date of it,
(ii) the nature of the trade,
(iii) a description of the real estate involved sufficient to identify it,
(iv) the true consideration for the trade,
(v) the names of all parties to the trade,
(vi) the amount of the deposit received and a record of the disbursement of it, and
(vii) the amount of the agent’s commission or other remuneration and the name of the party paying it.
1983, c.75, s.14; 2013, c.31, s.33
Interest on funds in trust or on account
25(1)Subject to subsection (4), a person who is licensed as an agent under this Act and holds funds in trust or on account of any or all of the parties to a trade shall instruct the depository to remit all the interest earned on the funds to the Association at the times during the year that shall be determined by the Association, but not less frequently than semi-annually.
25(2)All interest on an account referred to in subsection (1) is the property of the Association and is recoverable as a debt owing to the Association.
25(3)Subject to subsection (4), an agent who deposits funds under this section shall not be required to account to any party except the Association for the interest earned on money deposited under this section.
25(4)Despite anything in this section, on the written instructions of all parties to a trade, an agent may hold a deposit received on the trade in a separate interest bearing trust account and, if the agent is so instructed, the agent shall pay the interest on the account in accordance with the written instructions.
25(5)Any written instructions referred to in subsection (4) shall be acknowledged separately and shall state the person to whom the interest is to be paid.
25(6)An agent who receives from a person money which the agent is required to deposit in trust, or which the agent is instructed by the person to hold in trust for that person, whenever the agent has reasonable grounds to believe that the money will not be required within 90 days, shall advise the person that the money may be deposited in a separate interest bearing trust account under subsection (4).
1983, c.75, s.14; 1995, c.31, s.8
Examination of books, records and accounts
26The Director may direct the examination, at the times that the Director considers necessary, of the books, records and accounts of a person engaged in a real estate transaction.
R.S.1973, c.R-1, s.15; 2013, c.31, s.33
Association to inspect
27(1)The Association shall inspect, examine or audit the books, records and accounts of agents in accordance with the regulations for the purpose of ensuring compliance with this Act and the regulations.
27(2)The Association shall ensure that the Director is provided with a copy of the results of an inspection, examination or audit conducted under subsection (1).
1995, c.31, s.9; 2013, c.31, s.33
Association may appoint inspectors
28(1)The Association may appoint in writing inspectors to inspect, examine and audit books, records and accounts maintained in offices of agents.
28(2)The Association shall furnish every inspector with a certificate of the inspector’s appointment signed by the President of the Association and, on entering any place for the purposes of inspection, an inspector shall produce, on demand, the certificate to the person in charge of the place.
28(3)A certificate that purports to be an appointment under this section is admissible in evidence without proof of signature and is proof, in the absence of evidence to the contrary, that its holder has been duly appointed under subsection (1).
28(4)For the purposes of ensuring compliance with this Act and the regulations, an inspector may
(a) at any reasonable time, enter and inspect premises described in subsection (1),
(b) request information or production for inspection, examination or audit any books, records and accounts that may be relevant to the carrying out of an inspection, and
(c) remove books, records and accounts produced as a result of a request under paragraph (b) or discovered during the inspection for the purpose of making copies or taking extracts.
28(5)An inspector removing a book, record or account from premises under subsection (4) shall first provide a receipt for it to the person in charge of the premises and shall promptly return the book, record or account to the premises after completing making copies or taking extracts, as the case may be.
28(6)Copies of or extracts from books, records or accounts removed from premises under this Act and certified by the person making the copies or taking the extracts as being true copies of or extracts from the originals are admissible in evidence to the same extent as, and have the same evidentiary value as, the books, records or accounts of which they are copies or from which they are extracts.
1995, c.31, s.9
Obstruction of inspectors
29(1)A person shall give all reasonable assistance to the inspector to enable the inspector to exercise powers given under this Act and shall furnish the inspector with the information, books, records and accounts that the inspector may reasonably request.
29(2)No person shall hinder, obstruct or otherwise interfere with an inspector who is carrying out the inspector’s duties and functions under this Act.
29(3)No person shall knowingly make a false or misleading statement, either orally or in writing, or provide or produce a false book, record or account to an inspector who is carrying out the inspector’s duties and functions under this Act.
1995, c.31, s.9
Exemptions from application of Act
30This Act does not apply to
(a) an assignee, custodian, liquidator, receiver, trustee or other person acting as directed by the provisions of an Act, or to a person acting under the order of a court, or to an administrator of an estate, or an executor or trustee selling under the terms of a will, marriage settlement or deed of trust,
(b) a bank or credit union or a loan, trust or insurance company trading in real estate owned or administered by the company,
(c) a person not ordinarily trading in real estate who acquires real estate or an interest in real estate or who disposes of real estate owned by that person or in which that person has a substantial interest, or an official or employee of any such person engaged in so acquiring or disposing of real estate,
(d) a person who is practising as a barrister or solicitor of The Court of Queen’s Bench of New Brunswick and is a member in good standing of the Law Society of New Brunswick,
(e) a person who is licensed as an auctioneer and who is trading in real estate in the course of and as part of that person’s duties as an auctioneer, or
(f) a person or class of persons exempted from the application of this Act by the regulations.
R.S.1973, c.R-1, s.16; 1979, c.41, s.106; 1983, c.75, s.16; 1987, c.6, s.96; 1995, c.31, s.10
Bonds
31(1)For the purposes of this section, “fraud” shall be deemed to include failure to maintain and operate a trust account in accordance with sections 18, 19 and 20.
31(2)The Director may declare a bond given under this Act forfeited in the following circumstances:
(a) subject to subsection (4), an agent, salesperson or other person in respect of whose conduct the bond has been conditioned has been convicted of an offence involving fraud, theft or conspiracy to commit an offence involving fraud or theft under the Criminal Code (Canada), if that offence relates in any way to a trade in real estate;
(b) subject to subsection (4), a judgment or default judgment based on or involving a finding or allegation of fraud relating in any way to a trade in real estate has been given against an agent, salesperson or other person in respect of whose conduct the bond has been conditioned; or
(c) a person has suffered loss through a wilful act or neglect or misappropriation of trust funds by an agent, salesperson or other person in respect of whose conduct the bond has been conditioned and that person makes application to the Director indicating the reason for the loss and the refusal or inability of the person occasioning the loss to make restitution, together with any other information that the Director considers necessary.
31(3)When the Director declares a bond forfeited under subsection (2), the amount of the bond is a debt due to the Commission, owing by the person bound by it.
31(4)The Director may not declare a bond forfeited under paragraph (2)(a) or (b) until after the conviction, judgment or order has been confirmed by the highest court to which an appeal may be taken or the period for appeal has expired.
31(5)A bond given under this Act shall be deemed to be in effect for a period of two years following the date on which the bond would otherwise terminate by lapse, expiry or cancellation, but liability under the bond is limited to acts or omissions before that date of the agent, salesperson or other person in respect of whose conduct the bond has been conditioned; and a clause to this effect shall be deemed to be inserted in every bond given for the purposes of this Act.
31(6)Despite any other provision of this Act, at no time shall the total liability of the insurer under the bond exceed the face value of the bond.
31(7)When new bonds have been issued by the same guarantor party on the expiry of previous bonds, all those bonds shall be deemed to be one continuing bond and the maximum amount for which the guarantor party shall be liable shall be the face value of the bond last issued on expiry of a previous bond.
31(8)The Tribunal may assign a bond forfeited under the provisions of this section or, subject to subsection (11), may pay over any money recovered under it to a person, or to the Registrar of The Court of Queen’s Bench of New Brunswick, in trust for the persons who may become, in respect of claims arising out of trades in real estate, judgment creditors of the person so bonded, or to a trustee, custodian, interim receiver, receiver or liquidator of the judgment creditors, as the case may be; the assignment or payment over to be in accordance with and on conditions set out in the regulations or in a special order of the Tribunal.
31(9)If Her Majesty becomes a creditor of a person in respect of a debt to the Crown arising under this Act, the Minister of Justice may take the proceedings that the Minister of Justice considers fit under the Bankruptcy and Insolvency Act (Canada), the Judicature Act, the Companies Act, the Winding-up Act or the Winding-up and Restructuring Act (Canada) for the appointment of an interim receiver, custodian, trustee, receiver or liquidator, as the case may be.
31(10)If a bond has been forfeited under the provisions of subsection (2) by reason of a conviction or judgment under paragraph (2)(a) or (b) and, within two years after the conviction or judgment having become final or after the agent or salesperson in respect of whom the bond was furnished ceasing to carry on business as such, the Commission has not received notice in writing of a claim against the proceeds of the bond or of the portion of it that remains in the possession of the Commission, the Commission, subject to subsection (11), shall pay the proceeds or portion of the proceeds to a person who on forfeiture of the bond made payments under it.
31(11)If money has been recovered by the Commission under a bond forfeited under subsection (2), the Commission may deduct from that money and retain
(a) the amount of the costs incurred by the Commission in connection with the recovery and distribution of the money, including the costs of an investigation of a claim made on the money, and
(b) if a payment is to be made under subsection (10), the amount of any expenses that have been incurred in connection with an investigation or otherwise relating to the agent or salesperson in respect of whom the bond forfeited was furnished.
R.S.1973, c.R-1, s.17; 1978, c.D-11.2, s.34; 1979, c.41, s.106; 1984, c.30, s.2; 1995, c.31, s.11; 2013, c.31, s.33
Power of inquiry of Director
2013, c.31, s.33
32(1)The Director may, and, when directed by the Director, the Association or a person authorized by it shall,
(a) investigate and inquire into a matter concerning the due administration of this Act,
(b) for the purpose of an investigation, inquire into and examine the business affairs of an agent, manager or salesperson,
(c) examine and inquire into a book, paper, document, correspondence, communication, negotiation, transaction, investigation, loan, borrowing or payment to, by, on behalf of, in relation to or connected with that agent, manager or salesperson, and
(d) examine and inquire into a property, asset or thing owned, acquired or alienated in whole or in part by a person referred to in paragraph (c) or by a person acting on behalf of or as agent for that person.
32(2)A person in respect of whom the investigation is made shall make prompt and explicit answers to all inquiries made under subsection (1).
32(3)At all reasonable times, the person making the investigation may demand from an agent, manager or salesperson and inspect a book, paper, document, correspondence, communication or record mentioned in subsection (1), and an agent, manager or salesperson who has the custody, possession or control of the book, paper, document, correspondence, communication or record shall produce it and permit the inspection of it by the person making the investigation.
32(4)The person making the investigation, on giving or leaving a receipt for it, may remove a book, paper, document, correspondence, communication or record of the person whose business affairs are being investigated for the purpose of examining or making copies of it.
32(5)A book, paper, document, correspondence, communication or record removed under subsection (4) shall be promptly returned, unless required for the purpose of evidence in a proceeding under this Act or the regulations, in which case the person making the investigation, on request and without charge, shall furnish a copy of a removed item.
32(6)For the purposes of this section, the Director, or any other person authorized by the Director in writing, shall have all the powers of a commissioner appointed under the Inquiries Act.
R.S.1973, c.R-1, s.18; 1983, c.75, s.17; 1986, c.6, s.36; 1995, c.31, s.12; 2013, c.31, s.33
Reference by Director to Association
2013, c.31, s.33
33(1)Before deciding whether to grant or refuse an application for a licence of an agent, a manager or a salesperson, or to suspend or cancel an existing licence, or to reinstate a suspended or cancelled licence, the Director may refer any matter to the Association for its recommendation.
33(2)When a matter is referred to the Association under subsection (1), the Association may, and if requested by the Director or by a person affected shall, hold a hearing into the matter at which the person affected has a right to be heard and may be represented by counsel.
33(3)The Association may appoint a hearing committee of not less than three members of the Association to conduct a hearing under this section, and, for the purpose of conducting a hearing, the Association or the committee may exercise the powers of commissioners under the Inquiries Act.
33(4)The Association shall submit to the Director a report on its activities in relation to a matter referred to it under this section, together with its recommendation as to the granting, refusal, suspension, cancellation or reinstatement of the licence.
R.S.1973, c.R-1, s.21; 1983, c.75, s.21; 1986, c.67, s.7; 1995, c.31, s.18; 2013, c.31, s.33
Advice to Director by Association
2013, c.31, s.33
34In addition to any other powers and duties given to it under this Act or the regulations, the Association may, and on request of the Director shall, advise the Director in relation to the Director’s powers under this Act.
1995, c.31, s.19; 2013, c.31, s.33
Prohibition respecting collection of commission unless licensed
35No agent shall collect, or attempt or be entitled to collect, any commission or other remuneration for services rendered in connection with a trade in real estate unless at the time of rendering the services
(a) the agent was licensed as an agent, or
(b) if the services were rendered by another person, both the agent and that person were licensed.
1983, c.75, s.22
Agreement to list real estate and for payment of commission
36(1)No person is bound by an agreement with an agent to list real estate for sale, exchange or lease
(a) if the agreement is not in writing and signed by that person or by some person whom that person has authorized to sign the agreement,
(b) if the agent or the manager or salesperson or another person representing the agent in respect of that agreement did not hold a licence under this Act at the time the agreement was entered into,
(c) if the agreement does not contain a provision that it will expire on a certain date specified in it,
(d) if the agreement contains more than one date on which it may expire, or
(e) if the agent does not deliver a true copy of the agreement to the person who signs the agreement immediately after its execution.
36(2)All commission or other remuneration payable to an agent in respect of the sale of real estate shall 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 shall be that generally prevailing in the community where the real estate is situated.
36(3)No agent, manager or salesperson shall request or enter into an agreement for the payment to the agent, manager or salesperson of a commission or other remuneration based on the difference between the price at which real estate is listed for sale and the actual sale price of it, and no agent, manager or salesperson is entitled to retain a commission or other remuneration so computed.
R.S.1973, c.R-1, s.22; 1975, c.51, s.1; 1983, c.75, s.23; 1986, c.67, s.8; 1995, c.31, s.20
Expiry of listing agreement
37(1)Subject to subsection (2), an agent is not entitled to a commission when real estate is sold, exchanged or leased after the expiry of a listing agreement.
37(2)When real estate is sold, exchanged or leased after the expiry of a listing agreement as a result of services performed by the agent before the expiry, the agent is entitled to recover the agent’s commission despite the expiry if the other conditions of the listing agreement have been satisfied and the owner knew that the real estate was sold, exchanged or leased as a result of the services performed by the agent.
37(3)If an agent is entitled to recover a commission under subsection (2), no other agent is entitled to a commission from the owner despite an agreement to the contrary.
1983, c.75, s.24
Disclosure by agent or associate of intention to acquire real estate or an interest in real estate
38(1)In this section, “associate” means (associé)
(a) a salesperson of the agent,
(b) a manager or official of the agent,
(c) a sub-agent or salesperson, manager or official of a sub-agent,
(d) if the agent or a person included in paragraphs (a) to (c) is a corporation, a director, officer or nominee of the corporation or a person who has a material interest in the corporation,
(e) if the agent is a partnership, a partner,
(f) the spouse of the agent or of an individual included in paragraphs (a) to (e), or
(g) a corporation, firm, partnership, association, syndicate or other unincorporated organization in which the agent or a person included in paragraphs (a) to (f) has a material interest.
38(2)For the purposes of this section, a person has a material interest
(a) in a corporation if the person holds 5% or more of any class of its issued shares, and
(b) in a firm, partnership, association, syndicate or other unincorporated organization, if the person holds 5% or more of its capital or is entitled to receive 5% or more of its profits.
38(3)Except if subsection (4) applies, if an agent or an associate of an agent intends to acquire real estate or an interest in real estate, before either directly or indirectly acquiring or attempting to acquire an interest in the real estate, the agent or the associate shall disclose to the owner that the agent or the associate is an agent or an associate of an agent, as the case may be.
38(4)If an agent or an associate of the agent intends to acquire real estate or an interest in real estate and the owner has listed the real estate with the agent, or has discussed with the agent or the associate the listing of the real estate with the agent, before either directly or indirectly acquiring or attempting to acquire an interest in the real estate, that agent or that associate shall inform the owner that the owner is advised to obtain independent advice regarding the real estate and shall disclose to the owner
(a) whether that agent or that associate intends to sell or dispose of an interest that that agent or that associate acquires in the real estate and, if so, the details of all negotiations to that end,
(b) any information within that agent’s or that associate’s special knowledge that could materially affect the value of the real estate, and
(c) any other information within that agent’s or that associate’s special knowledge that could reasonably affect the owner in making a decision in relation to the real estate.
38(5)If an agent or an associate of an agent owns real estate or an interest in real estate, before selling an interest in the real estate, the agent or the associate shall disclose to the prospective purchaser
(a) that the agent or the associate owns the real estate or an interest in the real estate, and
(b) that the agent or the associate is an agent or an associate of an agent, as the case may be.
38(6)The disclosure required by subsections (3) and (5) shall be made in a separate written statement the receipt of which is acknowledged in writing by the owner or prospective purchaser, as the case may be.
38(7)The disclosure required by subsection (4) shall be made
(a) in a separate written statement the receipt of which is acknowledged in writing by the owner, and
(b) not less than 24 hours before the agent or the associate, as the case may be, acquires an interest in the real estate.
38(8)If an agent or an associate is in breach of this section, the agent or the associate, as the case may be, is liable for any reasonably foreseeable loss that was caused by the breach.
R.S.1973, c.R-1, s.23; 1975, c.51, s.3; 1983, c.75, s.25
Prohibition respecting inducement of a party to a contract to breach contract
39No licensee shall induce a party to a contract for sale, exchange or lease of real estate to break the contract for the purpose of entering into another such contract.
1983, c.75, s.26
Prohibition respecting referral to a solicitor or a lender for a finder’s fee
40(1)No licensee shall make an arrangement with a barrister or solicitor for the referral of business to the barrister or solicitor in return for the payment of a finder’s fee or any other benefit.
40(2)No licensee shall refer a person to a lender with whom the licensee has an arrangement for the referral of business in return for the payment of a finder’s fee or any other benefit, unless before or at the time of making the referral the licensee discloses in writing to that person that the licensee has such an arrangement.
1983, c.75, s.26
Advertisements
41(1)Subject to subsection (3), no agent shall advertise to promote a trade unless the advertisement clearly indicates
(a) the agent’s own name as the advertiser, and
(b) that the agent is an agent.
41(2)Subject to subsection (3), no salesperson, manager or official of an agent shall advertise to promote a trade unless the advertisement clearly indicates
(a) the name of the agent for whom the salesperson, manager or official is acting, and
(b) that the agent is an agent.
41(3)Paragraphs (1)(b) and (2)(b) do not apply to a sign.
1983, c.75, s.26
Representation or promise
42(1)Subject to subsection (2), no licensee, as an inducement to purchase, sell, lease or exchange real estate, shall make a representation or promise that the licensee or any other person will
(a) resell or exchange, or in any way guarantee or promise to sell or exchange, real estate offered for sale by the licensee,
(b) purchase, sell or exchange any of the purchaser’s real estate,
(c) procure a mortgage, extension of a mortgage, lease or extension of a lease, or
(d) purchase or sell a mortgage or procure a loan.
42(2)A licensee may make a representation or promise referred to in subsection (1) if, at the time of making the representation or promise, the person making it delivers to the person to whom the representation or promise is made a signed statement clearly setting out all the details of the representation or promise made.
1983, c.75, s.26
Offer and acceptance
43(1)As soon as practicable after receiving an offer in writing, an agent shall
(a) provide the offeror with a true copy of the offer, and
(b) present the offer to the offeree.
43(2)As soon as practicable, after receiving an acceptance in writing, an agent shall
(a) provide the offeree with a true copy of the acceptance, and
(b) notify the offeror of the acceptance and provide the offeror with a true copy of the acceptance.
1983, c.75, s.26
Offences and penalties
44(1)A person who violates or fails to comply with a provision of this Act that is listed in Column I of Schedule A commits an offence.
44(2)For the purposes of Part 2 of the Provincial Offences Procedure Act, each offence listed in Column I of Schedule A is punishable as an offence of the category listed beside it in Column II of Schedule A.
44(3)A person who violates or fails to comply with a provision of the regulations commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category B offence.
R.S.1973, c.R-1, s.24; 1981, c.6, s.1; 1995, c.31, s.21
Limitation of actions
45A prosecution under this Act or the regulations shall be commenced within two years from the date on which the offence is alleged to have been committed.
R.S.1973, c.R-1, s.25
Certificate as evidence
2013, c.31, s.33
46A certificate of the Director stating any of the following facts is admissible in evidence and is proof, in the absence of evidence to the contrary, of the facts stated in the certificate without proof of the appointment, authority or signature of the Director:
(a) an agent, manager, salesperson or other person named in the certificate is or is not licensed under this Act;
(b) a licence was issued to an agent, manager or salesperson; and
(c) the licence of an agent, manager or salesperson is suspended, cancelled or reinstated.
1983, c.75, s.27; 2013, c.31, s.33
Administration
47The Commission is responsible for the administration of this Act.
1987, c.50, s.1; 2013, c.31, s.33
Regulations
48The Lieutenant-Governor in Council may make regulations
(a) in order to ensure compliance with this Act and the regulations and the payment of money held for the account of a person by an agent, providing for the furnishing of security or proof of financial responsibility by agents in the amounts and in the form and on the conditions that may be considered necessary to obtain those objects, which regulations may discriminate between persons required to furnish security or proof of financial responsibility in accordance with the number of salespersons employed by them and the volume of business done by them;
(b) prescribing the fees payable on application for licence and any other fees in connection with the administration of this Act and the regulations;
(c) respecting forms for use under this Act and the regulations;
(d) providing for investigations into complaints against an agent;
(e) prescribing the practice and procedure on investigations;
(f) providing for the regulation of trading by agents, including the particulars to be contained in advertisements for the purchase, sale or exchange of real estate;
(g) prescribing the books, accounts and records to be kept and maintained by agents, and providing for their inspection by the Director or the Director’s representative and for their audit;
(h) respecting the inspection, examination and audit of the books, records and accounts of agents by the Association;
(i) exempting persons or classes of persons from the application of the Act;
(j) respecting the qualifications required of an applicant for a licence under this Act and the statements and other documents to be produced by an applicant;
(k) respecting the authority of the Director to waive all or a portion of the qualifications for a licence under this Act that relate to previous experience;
(l) prescribing institutions at which agents may maintain an account for trust deposits;
(m) providing for the regulation of the assigning or paying over of forfeited bonds;
(n) respecting the use of a standard form of a listing agreement in the trade of real estate, and prescribing the form and the size, type and colour of lettering used in any provision of it;
(o) prescribing the amount of deposit for the purposes of subsection 22(9);
(p) for the better carrying out of the provisions of this Act and for the more efficient administration of them.
R.S.1973, c.R-1, s.26; 1982, c.3, s.64; 1983, c.8, s.30; 1983, c.75, s.28; 1986, c.67, s.9; 1995, c.31, s.22; 2013, c.31, s.33
Assets of Real Estate Council
49(1)Despite the repeal of sections 19, 20 and 20.1 of the Real Estate Agents Act, chapter R-1 of the Revised Statutes, 1973, effective July 1, 1996, the Real Estate Council retains the power and authority that is necessary so as to enable it to carry out the requirements of subsection (2).
49(2)The Real Estate Council shall collect any money owing to it under section 13.4 of the Real Estate Agents Act, chapter R-1 of the Revised Statutes, 1973, as it existed immediately before July 1, 1996, and shall pay off its debts and transfer its remaining assets to The New Brunswick Real Estate Association for its use.
49(3)The New Brunswick Real Estate Association shall not use or invest any money transferred to it from the Real Estate Council, or any of the interest accruing on the money, without the prior approval of the Director.
1995, c.31, s.23; 2013, c.31, s.33
SCHEDULE A
Column I
Provision
Column II
Category of Offence
  
  2(a)..............
E
  2(b)..............
E
  2(c)..............
E
  5..............
C
  7..............
C
  8(1)(a)..............
E
  8(1)(b)..............
E
10(7)..............
C
15(1)(a)..............
E
15(1)(b)..............
C
15(1)(c)..............
C
15(1)(d)..............
C
15(1)(e)..............
E
15(1)(f)..............
E
15(1)(g)..............
E
15(1)(h)..............
E
15(2)(a)..............
E
15(2)(b)..............
E
15(2)(c)..............
C
18..............
F
19(1)..............
F
19(2)..............
F
19(3)..............
F
19(4)..............
F
20..............
H
21(1)..............
E
23(1)(a)..............
C
23(1)(b)..............
C
25(1)..............
C
25(4)..............
C
25(6)..............
C
29(1)..............
E
29(2)..............
E
29(3)..............
E
32(2)..............
E
32(3)..............
E
35(a)..............
E
35(b)..............
E
36(3)..............
E
38(3)..............
F
38(4)(a)..............
F
38(4)(b)..............
F
38(4)(c)..............
F
38(5)(a)..............
F
38(5)(b)..............
F
39..............
E
40(1)..............
E
40(2)..............
E
41(1)(a)..............
E
41(1)(b)..............
E
41(2)(a)..............
E
41(2)(b)..............
E
42(1)(a)..............
F
42(1)(b)..............
F
42(1)(c)..............
F
42(1)(d)..............
F
43(1)(a)..............
C
43(1)(b)..............
E
43(2)(a)..............
C
43(2)(b)..............
E
1995, c.31, s.23
N.B. This Act was proclaimed and came into force September 1, 2011.
N.B. This Act is consolidated to July 1, 2013.