Consent Order

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

Complaint: Contravention of sections 35(1)(a) [professional misconduct - breach of Act or Rules], 35(1)(d) [professional misconduct - incompetence], 6 [brokerage must have managing broker], 30 [withdrawals from trust account] and Division 4, Part 3 [maintain trust records] of the Real Estate Services Act, and sections 3-1(1), (2) and (3) [managing broker responsibilities], Parts 7 and 8 [maintain trust records], 7-5 [shortages in trust accounts], 7-7(1) [annual financial statements, accountant 's report and brokerage activity report], 8-2 [trust account and general account records], 8-3 [pooled trust account records], 8-7.1(1) [maintain separate books, accounts and other records], 8-7.1(2), (3) and (4) [residential strata records], and 8-10 [retention of records] of the Council Rules

Issue: Pratten Realty Inc., Victoria, formerly a licensed brokerage, committed professional misconduct within the meaning of section 35(1)(a) of the Real Estate Services Act in that it contravened various provisions of the Real Estate Services Act and the Council Rules in that it:

1. in respect to the failure to file an Accountant 's Report with the Real Estate Council, contravened section 7-7(1) of the Council Rules and in that it failed to file an Accountant 's Report with the Council by the prescribed date;
2. with respect to Strata Corporations VIS1797 and VIS68, Pratten Realty Inc. failed to:
   1. maintain its trust accounts and other financial matters in accordance with Division 4, Part 3 of the Act and Parts 7 and 8 of the Council Rules;
   2. maintain separate books, accounts and other records with respect to VIS1797 and VIS68, former strata corporation clients, for which the brokerage provided strata management services, contrary to section 8-7.1(1) of the Council Rules;
   3. retain the records enumerated in section 8-7.1(2) of the Council Rules for VIS1797 and VIS68, in accordance with section 8-7.1(2) and 8-10 of the Council Rules;
   4. provide to VIS1797 and VIS68, upon their request, the financial records referred to in section 8-2 of the Council Rules relative to trust accounts maintained on behalf of VIS1797 and VIS68, contrary to section 8-7.1(3) and (4) of the Council Rules;
3. failed to have a managing broker actively engaged in the management and supervision of the conduct of JH, an unlicensed employee, in that it failed to monitor her oversight of the trust books and records of the brokerage, and failed to ensure that she promptly deposited trust funds into the brokerage trust account; and
4. failed to maintain proper books, accounts and other records in accordance with Division 4, Part 3 of the Act and Part 7 and 8 of the Council Rules, including;
   1. failing to prepare general account reconciliations in accordance with section 8-2(c) of the Council Rules,
   2. failing to keep separate trust ledgers and to prepare timely monthly trust liability and asset reconciliations in accordance with section 8-3 of the Council Rules; and,
   3. failing to make proper withdrawals from a trust account, including ensuring that there were no shortages in trust accounts creating overdrafts, in accordance with section 30 of the Real Estate Services Act and section 7-5 of the Council Rules.

Issue: Alan Geoffrey Pratten, associate broker, Fair Realty Ltd. dba Fair Realty, Victoria, while licensed as managing broker with Pratten Realty Inc. demonstrated incompetence and he thereby committed professional misconduct within the meaning of section 35(1)(d) of the Real Estate Services Act, in that he, contrary to his duties as managing broker, as set out in section 6(2)(c) of the Act and section 3-1(1), (2) and (3) of the Council Rules:

1. in respect of the filing of the Accountant 's Report with the Council, Mr. Pratten failed to fulfil his responsibilities as a managing broker for the performance of the duties imposed on the brokerage by its licence within the meaning of section 6(2)(b) of the Real Estate Services Act and 3-1(3) of the Council Rules;
2. in respect of Strata Corporations VIS1797 and VIS68, Mr. Pratten failed to ensure the brokerage:
   1. maintained its trust accounts and other financial matters in accordance with Division 4, Part 3 of the Act and Parts 7 and 8 of the Council Rules;
   2. maintained separate books, accounts and other records with respect to VIS1797 and VIS68, former strata corporation clients, for which the brokerage provided strata management services, contrary to section 8-7.1(1) of the Council Rules;
   3. retained the records enumerated in section 8-7.1(2) of the Council Rules for VIS1797 and VIS68, in accordance with section 8-7.1(2) and 8-10 of the Council Rules;
   4. provided to VIS1797 and VIS68, upon their request, the financial records referred to in section 8-2 of the Council Rules relative to trust accounts maintained on behalf of VIS1797 and VIS68, contrary to section 8-7.1(3) and (4) of the Council Rules;
   5. failed to be actively engaged in the management and supervision of the conduct of JH, the brokerage 's unlicensed assistant/bookkeeper, and
3. failed to ensure that Pratten Realty Inc. maintained proper books, accounts and other records in accordance with Part 3 of the Act and Part 7 and 8 of the Council Rules, and in accordance with his duties under section 6 of the Act and section 3-1 of the Council Rules.

Results

Pratten Realty Inc. 's licence was cancelled 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 Pratten Realty Inc., and a Consent Order was issued. Further, Pratten Realty Inc. and Alan Geoffrey Pratten are ordered to be jointly and severally liable to pay a discipline penalty to the Council in the amount of $1,000.00 and to be jointly and severally liable to pay enforcement expenses to the Council in the amount of $1,000.00.

Alan Geoffrey Pratten 's licence as a managing broker was cancelled 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 Alan Geoffrey Pratten, and a Consent Order was issued. Alan Geoffrey Pratten will not be permitted to apply to act as a managing broker for two years from February 26, 2009 to February 25, 2011 and any application for relicensing as a managing broker will be subject to Mr. Pratten successfully completing the Broker 's Licensing Course. Upon cancellation of Mr. Pratten 's managing broker 's licence, he will be immediately eligible to be licensed as an associate broker. Further, Alan Geoffrey Pratten and Pratten Realty Inc. are jointly and severally liable to pay a discipline penalty to the Council in the amount of $1,000.00 and are also jointly and severally liable to pay enforcement expenses to the Council in the amount of $1,000.00.