Cyprus Mail
Property

Disciplinary action against a real estate agent

coucounis
‘It presupposes conduct incompatible with their profession’

Real estate agents, as well as other professionals whose profession is regulated by law, must conduct themselves accordingly, otherwise they commit a disciplinary offence and may be prosecuted by the council of real estate agents.

When the council is examining a complaint or becomes aware that a registered real estate agent may have committed any of the disciplinary offences mentioned in the law, it will initiate an investigation.

If an offence is discovered, the real estate agent in question is informed in writing of the case against them and given the opportunity to be heard either in person or through a lawyer. After a hearing the council may either find the agent guilty of all or some of the disciplinary offences of which they are accused, and impose on them any of the disciplinary sanctions which would be justified under the circumstances, or acquit him.

Article 28(1) of the Real Estate Agents Law of 2010 refers to the disciplinary offences of an agent and provides that a registered real estate agent is subject to disciplinary proceedings before the council if they (a) commit any penal offense involving lack of honesty or moral obscenity; (b) succeed in registering with the real estate registry or secure an annual permit using fraud or fraudulent representations or statements;  (c) act or omit anything in a manner which amounts to a breach of any of the duties or obligations of a real estate agent; (d) in the exercise of the profession exhibit dishonest conduct or any other conduct inappropriate or incompatible with the profession or detracts from the prestige or reputation of the real estate agent; or (e) assist or support virtual real estate business. (2) The term “real estate agent duties and obligations” includes any duty or obligation imposed on a real estate agent under the provisions of the law or the regulations issued thereunder.

A decision by the council may be appealed through a recourse before the administrative court. In a judgment issued on June 8, the court examined the recourse of an applicant, who at the material time was employed as an assistant real estate agent to a registered and licensed real estate agent. The council launched a disciplinary investigation against her for certain posts she made on her personal Facebook account. To this end, it appointed an investigating officer who prepared a report and submitted it to the council, which ruled that she may have committed a disciplinary offence and summoned her to be heard. After hearing the applicant, the council imposed a pecuniary penalty on her.

The applicant sought the annulment of the council’s decision, raising various issues, especially that the sharing of an article on her personal account could not be considered as being done in the exercise of her profession as a real estate agent. The court focused on the issue of whether the specific action falls within the exercise of the profession and so referred to a similar judgment issued by another judge of the administrative court on July 31, 2020. Then, the court did not agree with the council’s suggestion that the interpretation of the phrase “in the exercise of the profession” is broad or that the phrase “detracts from the prestige or reputation of the real estate agent” is a completely separate phrase and does not need to be done in the exercise of the profession.

In the present case, the court adopted the above findings and held that article 28(1)(d) of the law requires that any alleged misconduct by an agent (or an assistant agent as the council rightly or wrongly claims) must have occured in the exercise of the profession. It further held that the applicant’s posts were not made in the exercise of the profession and therefore, the specific legislative provision was erroneously applied and annulled the decision of the council and consequently the sanction against the applicant.

 

George Coucounis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, [email protected]

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