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Are you a fit and proper person?

17 July 2018

By Peter Moran

The Property, Stock and Business Agents Act 2002  requires an agent to be a fit and proper person to hold a real estate licence. Sounds straightforward, right? But if you fail the test, your licence could be cancelled.

So, ask yourself: “Am I a fit and proper person?”

What does a fit and proper person look like? Do you have to run a four-minute mile, bench press 200 kilograms and follow Downton Abbey-esque etiquette? Well, no.

The overarching purpose of determining whether an agent is a fit and proper person is protection of the public.

The basic test involves three things: honesty, knowledge and ability.

Still not clear? Luckily, the NSW Civil and Administrative Tribunal has dealt with several cases in which agents failed the fit and proper person test. These cases are now studies of what not to do as a real estate agent.

Demonstrating remorse for dishonest actions

In Gambino v Commissioner for NSW Fair Trading
[1], the agent was convicted of dishonestly obtaining financial advantage by deception, as well as an assault.

He was a real estate agent for over 30 years.

Applying the tests of honesty, knowledge and ability, the Tribunal found the agent was not a fit and proper person to hold a real estate licence. They determined his conduct demonstrated he lacked the honesty to execute the office of a real estate agent without malice, affection or partiality.

The Tribunal did say a criminal conviction on its own wasn't enough to determine whether an agent is a fit and proper person. But, in this case, the dishonest nature of the crimes and the agent's lack of responsibility was a decisive factor.​

The passing of time

In Salcedo v Commissioner of Fair Trading [2], NSW Fair Trading cancelled an agent’s licence for previous convictions relating to shoplifting and theft.
He appealed the decision to the Tribunal.

While the shoplifting offence was minor (resulting in a $150 dollar fine), the agent was also convicted of larceny and dishonestly obtaining property by deception in relation to a stolen credit card.

The agent expressed remorse and said the offences were committed out of desperation (he used the credit card for food).

Despite the agent's age and circumstances when the crime was committed, his application was rejected because he failed to disclose his convictions when completing his real estate licence application form.

The Tribunal noted this rejection did not prevent him from applying for his licence in the future.

Whether or not sufficient time has passed to ignore previous offences has been considered by the Tribunal in many cases. However, no clear rule has been established.

Compliance is critical

In Porter v Department of Finance and Services [3], an agent almost lost her licence for non-compliance with the PBSA Act.

In 2012, the PBSA Act was amended to include a requirement for mandatory professional indemnity insurance.

A senior investigator from NSW Fair Trading's Consumer Protection Team attended the agent's office and requested proof of her insurance, which she was unable to produce.

The Tribunal found the agent was in breach of the PBSA Act, but issued a caution instead of cancelling her licence.

Are you a fit and proper person? Take the test

These cases demonstrate that non-compliance with real estate industry regulations could result in the loss of your licence. So are you a fit and proper person?

  • Do you maintain awareness of the fit and proper person test and its requirements of honesty, knowledge and ability, both within and outside real estate activities?
  • Do you exercise extreme care when agreeing to make payments to associates or persons not connected with the estate agency practice, without full knowledge of the activities of the persons involved?
  • A criminal conviction alone will not result in a licence cancellation on a fit and proper person basis.
  • Would you accept full responsibility for offending conduct if facing licence cancellation? Dealing with the circumstances of the offending conduct frankly and honestly with the Tribunal will enhance the prospect of avoiding a ‘not fit and proper person’ finding.
  • Do you demonstrate sufficient remorse or understanding of the impropriety of the conduct?
  • Have you implemented office procedures to clearly identify evidence of regulatory compliance, including issues such as professional indemnity insurance cover?
  • Do you maintain files in respect of each regulatory issue; i.e. completion of continuing professional development of staff, trust account records, proof of professional indemnity cover?
  • When in doubt, do you seek legal advice as to regulatory obligations and statutory compliance issues?
Want more?

[1] [2014] NSWCATOD 135
[2] [2016] NSWCATOD 19

[3] [2014] NSWCATOD 93