REAL ESTATE COUNCIL OF BRITISH COLUMBIA
In the matter of the Real Estate Services Act
S.B.C. 2004 ch. 42
AND in the matter of a Consent Order pursuant to Section 41 of the Real Estate Services Act
Respondent: RAYMOND FREDERICK SMITH
LEONARD ALAN BIRTWISTLE
File: 114-06
Date of Consent Order: September 5, 2008
Complaint: Contravention of section 35(1)(d) [professional misconduct by demonstrating incompetence] of the Real Estate Services Act, and sections 3-4 [duty to act with reasonable care and skill], 4-7 [false or misleading advertising prohibited], and 5-9(3) [disclosure] of the Council Rules
Issue: Raymond Frederick Smith, currently unlicensed, while licensed as a representative, Ocean Pointe Realty Ltd. (Ldy) dba Re/Max Ocean Pointe Realty (Ldy), Ladysmith, demonstrated incompetence and thereby committed professional misconduct within the meaning of section 35(1)(d) of the Real Estate Services Act in that as representative for the listing agent in the purported sale of two lots on Harbour Road, Coal Harbour, B.C. (collectively referred to as “property ”) to JB ( “buyer ”), he: (a) failed to disclose to the buyer ’s representative, in accordance with section 5-9(3) of the Council ’s Rules, that the seller, to whom he was providing real estate services, was an associate of his as that term is defined in section 5-7 of the Council Rules; (b) represented to the buyer in the property listing and other promotional material, contrary to section 4-7 of the Council Rules, that: (i) the property was zoned for residential mobile homes, which he knew or ought to have known was untrue or misleading, as its present use is a lawful, but non-conforming use; (ii) the property comprised a total of 14 mobile home sites and 11 RV sites totaling 25 sites, which he knew or ought to have known was untrue or misleading, as only 9 mobile homes would be permitted in the future; (iii) the property was fully serviced by sewer when the property included only 19 sewer connections and there were Regional District restrictions on further connections; and, (c) failed to ascertain material facts relating to the property, including that access to three of the mobile home sites required access over a neighbouring property, in accordance with his duty under section 3-4 of the Council Rules.
Issue: Leonard Alan Birtwistle, associate broker, Ocean Pointe Realty Ltd. dba Re/Max Ocean Pointe Realty, Chemainus, demonstrated incompetence and thereby committed professional misconduct within the meaning of section 35(1)(d) of the Real Estate Services Act in that as representative for the listing agent in the purported sale of two lots on Harbour Road, Coal Harbour, B.C. (collectively referred to as “property ”) to JB (buyer ”), he: (a) failed to disclose to the buyer of the buyer ’s representative, in accordance with section 5-9(3) of the Council Rules, that the seller, to whom he was providing real estate services, was an associate of his as that term is defined in section 5-7 of the Council Rules; (b) represented to the buyer in the property listing and other promotional material, contrary to section 4-7 of the Council Rules, that: (i) the property was zoned for residential mobile homes, which he knew or ought to have known was untrue or misleading, as its present use is a lawful, but non-conforming use; (ii) the property comprised a total of 14 mobile home sites and 11 RV sites totaling 25 sites, which he knew or ought to have known was untrue or misleading, as only 9 mobile homes would be permitted in the future; (iii) the property was fully serviced by sewer when the property included only 19 sewer connections and there were Regional District restrictions on further connections, and (c) failed to ascertain material facts relating to the property, including that access to three of the mobile home sites required access over a neighbouring property, in accordance with his duty under section 3-4 of the Council Rules.
Result: Raymond Frederick Smith will be suspended for fourteen (14) days upon licence reissuance for professional misconduct as described above after an Agreed Statement of Facts, Proposed Acceptance of Findings and Waiver was entered into between the Real Estate Council and Raymond Frederick Smith, and a Consent Order was issued. Further, Raymond Frederick Smith was ordered to successfully complete the next available Unit 4 €œListing Documentation €ù of the British Columbia Real Estate Association Residential Trading Services Applied Practice Course, enroll in and attend the first available CPE Course €œReal Estate E&O Insurance Legal Update 2008 €ù or €œProfessionalism It Pays! Be Safe or Be Sued! €ù, and to pay enforcement expenses to the Council in the amount of $750.00.
Result: Leonard Alan Birtwistle was suspended for fourteen (14) days from October 29, 2008 to November 11, 2008 (inclusive) for professional misconduct as described above after an Agreed Statement of Facts, Proposed Acceptance of Findings and Waiver was entered into between the Real Estate Council and Leonard Alan Birtwistle, and a Consent Order was issued. Further, Leonard Alan Birtwistle was ordered to successfully complete the next available Unit 4 €œListing Documentation €ù of the British Columbia Real Estate Association Residential Trading Services Applied Practice Course, enroll in and attend the first available CPE Course €œReal Estate E&O Insurance Legal Update 2008 €ù or €œProfessionalism It Pays! Be Safe or Be Sued! €ù, and to pay enforcement expenses to the Council in the amount of $750.00.
P: Oct 14 2008 R: Oct 14, 2013