REAL ESTATE PROFESSIONALS: SUBSIDIARY LEGISLATION

INDEX TO SUBSIDIARY LEGISLATION

Real Estate Professionals Regulations

REAL ESTATE PROFESSIONALS REGULATIONS

 

(section 38)

 

(11th September, 2009)

 

ARRANGEMENT OF REGULATIONS

 

   REGULATION

 

 

 

PART I
Application for Registration

 

   1.   Citation

 

   2.   Interpretation

 

   3.   Application for registration

 

   4.   Registration of applicant

 

   5.   Certificate of registration

 

   6.   Fees payable on issue of certificate

 

   7.   Renewal of certificate

 

   8.   Display of certificate

 

 

 

PART II
Clients' Account

 

   9.   Clients' account

 

   10.   Payment into clients' account

 

   11.   Maintenance of clients' account

 

   12.   Drawing from clients' account

 

   13.   Books of account

 

   14.   Amount in clients' account

 

   15.   Appointment of curator bonis

 

 

 

PART III
Code of Conduct

 

   16.   Code of conduct

 

   17.   Joint liability of registered professional

 

   18.   Advertisement and publicity

 

   19.   Advertisement to promote business

 

   20.   Publications in journals, etc.

 

 

 

PART IV
Fidelity Fund

 

   21.   Establishment of Fund

 

   22.   Fund to vest in Board of Trustees

 

   23.   Fidelity Fund certificate

 

   24.   Contribution to Fund

 

   25.   Investment of Fund

 

   26.   Accounts to be kept

 

   27.   Professional indemnity

 

   28.   Moneys to the credit of Fund

 

   29.   Application of Fund

 

   30.   Payment of compensation for loss due to dishonesty

 

   31.   Provisions of the Board

 

 

 

PART V
General Provision

 

   32.   Fees payable under Regulations

 

 

 

      First Schedule - Establishment and Membership of Board

 

      Second Schedule - Application for Registration

 

      Third Schedule - Certificate of Registration

 

      Fourth Schedule - Fee for Certificate of Registration

 

      Fifth Schedule - Application for renewal of Certificate of Registration

 

      Sixth Schedule - Scale of Fees

 

      Seventh Schedule - Fidelity Fund Certificate

 

 

S.I. 77, 2009.

PART I
Application for Registration (regs 1-8)

 

1.   Citation

   These Regulations may be cited as the Real Estate Professionals Regulations.

 

2.   Interpretation

   In these Regulations, unless the context otherwise requires-

   "clients' account" means an account held under regulation 9;

   "Fund" means the Fidelity Fund established under regulation 21;

   "member" means a member of the Board of Trustees, appointed under regulation 1 of the First Schedule; and

   "professional" means an estate agent, property auctioneer, property manager or property valuer.

 

3.   Application for registration

   (1) A person who is resident in Botswana and desirous of being a registered professional shall make an application to the Council, in a form set out in the Second Schedule.

   (2) An application made in accordance with subregulation (1) shall be accompanied by an application fee of P250.

   (3) A person who is non-resident in Botswana and is desirous of being a registered professional in Botswana shall make an application to the Council, in a form set out in the Second Schedule.

   (4) An application made in accordance with subregulation (3) shall be accompanied by an application fee of P500.

   (5) A fee payable under this regulation shall be non-refundable.

 

4.   Registration of applicant

   (1) The Council shall, where it is satisfied that the applicant meets the requirements of section 20, register the applicant in the register.

   (2) Where the Council is not satisfied that the applicant meets the requirements of section 20, it shall reject the application and notify the applicant, in writing, stating the reasons for the rejection.

   (3) The register for registered professionals shall be open for inspection by any member of the public upon payment of a fee of P50.

 

5.   Certificate of registration

   (1) The Registrar shall issue a registered professional with a certificate of registration upon the registration or restoration of the name of the professional in the register.

   (2) The certificate of registration shall be in the form set out in the Third Schedule.

   (3) A certificate of registration issued in accordance with subregulation (1) shall expire at the end of a period of 12 months from the date of issue.

 

6.   Fees payable on issue of certificate

   (1) A registered professional shall pay to the Registrar in respect of each certificate of registration, before the certificate is issued, a fee prescribed in the Fourth Schedule in relation to each field of practise.

   (2) Notwithstanding the provisions of subregulation (1), a registered professional shall, for a certificate of registration issued in relation to two or more fields of practise, pay a fee prescribed in the Fourth Schedule.

 

7.   Renewal of certificate

   (1) A registered professional may make an application to the Council for the renewal of a certificate that has not been revoked.

   (2) An application under subregulation (1) shall be made in a form set out in the Fifth Schedule and shall be accompanied by a fee as set out in the Fourth Schedule.

   (3) Where the Council renews the certificate of registration of the professional, the Registrar shall issue the professional with a new certificate of registration as provided for under regulation 5 (2).

   (4) Where an application for renewal is made within 60 days after the expiry of the certificate of registration, the registered professional shall pay a penalty fee of P50 for every day or part of the day that he is in default.

   (5) The penalty fee payable under subregulation (4) shall be paid in addition to the fee payable under subregulation (2).

   (6) An application for renewal made after the expiry of 60 days shall be treated as a new application and payment of fees under regulations 3 and 6 shall be in addition to the payment of a penalty fee under subregulation (4).

 

8.   Display of certificate

   (1) A registered professional shall exhibit, and keep exhibited, in a prominent place on the business premises, the certificate of registration.

   (2) A registered professional who contravenes subregulation (1) commits an offence and is liable to a fine not exceeding P500.

PART II
Clients Account (regs 9-15)

 

9.   Clients' account

   (1) A registered professional who holds or receives clients' moneys shall keep a clients' account or as many clients accounts as he may think fit.

   (2) An account referred to in subregulation (1) shall be opened with a bank licensed under the Banking Act.

   (3) A registered professional may invest in a separate savings or other interest bearing account opened by him with any bank licensed under the Banking Act or a building society registered under the Building Societies Act any money deposited in the clients' account opened under subregulation (1), which is not immediately required for any particular purpose.

   (4) The interest, if any, on money deposited in terms of subregulation (1) and the interest on money invested in terms of subregulation (3) shall, after deduction of actual costs incurred in the performance of any duty imposed upon the registered professional under this regulation, be paid over to the Fund by the registered professional concerned at the prescribed time and in the manner prescribed.

 

10.   Payment into clients' account

   (1) A registered professional who receives or holds clients' moneys shall pay such money into a clients' account opened in accordance with regulation 9.

   (2) No money other than moneys which a registered professional is required to pay into the clients' account shall be paid into such account.

   (3) A registered professional shall not pay into a clients' account, moneys held or received-

 

   (a)   by the registered professional for or towards payment of a debt due to the registered professional; or

 

   (b)   as reimbursement of money expended by the registered professional on behalf of a client.

 

11.   Maintenance of clients' account

   There shall be paid into a clients' account-

 

   (a)   such moneys belonging to a registered professional as may be the minimum required by the bank for the purpose of opening or maintaining the account; or

 

   (b)   moneys to replace any sum which for any reason may have been drawn from the account in contravention of these Regulations.

 

12.   Drawing from clients' account

   (1) A registered professional shall draw from clients' account moneys-

 

   (a)   required for payment to or on behalf of a client;

 

   (b)   required for reimbursement of moneys expended by a registered professional on behalf of a client;

 

   (c)   required for payment of a registered professional fees and disbursement;

 

   (d)   which is transferred into another clients' account; or

 

   (e)   as may have been paid into the account under regulation 11(a).

   (2) A registered professional shall draw money from clients' account by-

 

   (a)   a cheque drawn in favour of the registered professional; or

 

   (b)   a transfer into an account in the name of the registered professional.

   (3) No money may be drawn from a clients' account otherwise than under the signature of-

 

   (a)   the registered professional;

 

   (b)   a partner or director of the business of the registered professional; or

 

   (c)   an accountant employed by the registered professional.

   (4) Notwithstanding anything contained in these Regulations, the Council may on application by a registered professional or of its own motion, authorise the withdrawal of money from a clients' account.

 

13.   Books of account

   (1) A registered professional shall keep proper books of account of clients' moneys received, held or paid by him and any other money dealt with by him through a clients' account.

   (2) A registered professional shall, at the end of every three months, furnish the Council with a certified copy of the bank statement of the clients' account.

   (3) A registered professional shall cause accounts of the clients' account to be audited by a chartered Accountant who is a member of the Institute of Accountants established by the Accountants Act and not being a member of the Board.

   (4) The Council or a person nominated by it may inspect the accounting records of the clients' account in order to satisfy itself that the provisions of this Part are being complied with.

   (5) Where upon an inspection in accordance with subregulation (4) it is found that the records of the clients' account have not been properly kept, the Council shall cause the records of the account of the registered professional to be written up and recover the costs of the inspection or such writing up, from the registered professional.

 

14.   Amount in clients' account

   (1) An amount standing to the credit of a clients' account in the bank shall not form part of the assets of the registered professional and no such amount and the interest accruing thereon shall be liable to attachment at the instance of a creditor of the registered professional:

   Provided that any excess amount remaining in the clients' account after payment of the claims of all persons whose moneys have been deposited in the clients' account shall be deemed to form part of the assets of the registered professional.

 

15.   Appointment of curator bonis

   (1) The Council may apply to Court for an appointment of a curator bonis to control and administer the clients' account or any other account opened or operated by the registered professional, if there is reason to believe that clients' moneys have been improperly deposited in any other account.

   (2) The Council or the person having an interest in the clients' account may make an application to Court for an appointment of a curator bonis to control and administer the clients' account where the registered professional-

 

   (a)   is dead;

 

   (b)   is insolvent;

 

   (c)   is suspended or removed from the Register;

 

   (d)   is declared by a court of competent jurisdiction to be incapable of managing his own affairs; or

 

   (e)   has abandoned his business.

PART III
Code of Conduct (regs 16-20)

 

16.   Code of conduct

   (1) A registered professional shall-

 

   (a)   act in a fiduciary manner towards his client in all professional matters;

 

   (b)   hold as confidential the results and other findings of his work and any report, until released from his obligation by his client or until the transaction or proceedings for which the work or report was made has been completed or has lapsed;

 

   (c)   protect the public against fraud, misrepresentation and unethical practises in real estate transactions;

 

   (d)   inform his client in writing of the nature of any business connections, interests or other affiliations he may have in connection with the service to the client;

 

   (e)   not undertake to provide professional service concerning property or its value where he has an interest unless such interest is disclosed, in writing, to all affected parties;

 

   (f)   not acquire an interest in or buy for himself, family or business or an entity in which he has an ownership interest, property listed with his business, without making true his position, in writing, known to the listing owner;

 

   (g)   not sell property owned by himself, or in which he has any interest, unless he discloses, in writing, the facts of ownership or interest to the purchaser;

 

   (h)   not accept a fee more than that prescribed in the scale of fees set out in the Sixth Schedule;

 

   (i)   not accept fees from more than one client in any one transaction;

 

   (j)   not accept from a third party commission, rebate or profit made on expenditure incurred on behalf of his client without the clients' knowledge and consent in writing;

 

   (k)   not pay a fee or commission or provide a gift or favour to a third party in recognition of the introduction of a client;

 

   (l)   not allow participation in real estate transactions by any other person not being a registered professional;

 

   (m)   not act for one party to a transaction while another registered professional from the same business is acting for the other party on the same transaction except with the knowledge and consent, in writing, of the parties concerned;

 

   (n)   not solicit the services of affiliations of an employee in the business of another registered professional without prior notice to the said registered professional;

 

   (o)   not offer, express or communicate to the public, any criticism or comment on the professional service, or conduct of, professional fees charged by other registered professionals;

 

   (p)   not knowingly prepare or certify any statement which is false, incorrect or misleading or open to misconception by reason of the misstatement, omission or suppression of a material fact; or

 

   (q)   carefully guard against the use of his name or his business association with any enterprise or activity of a questionable character.

   (2) A registered professional who contravenes a provision of subregulation (1) commits an offence and is liable to a fine not exceeding P2000, or to imprisonment for a term not exceeding two years, or to both.

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