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 section 31(1)(c), section 36, section 38 of the Real Estate Act, section 27 and section 35(1) of the Real Estate Services Act, and section 3-2 of the Council Rules /Misconduct and Professional Misconduct

Issue:

Smrat (Sam) Sharma, currently unlicensed, who, while licensed as a representative with Langara Realty Corp. dba Sutton Group Langara Realty, Vancouver, misconducted himself within the meaning of section 31(1)(c) of the Real Estate Act in that he failed to:

1. notify sellers or their representatives that deposits and/or increases of deposits, or both of them, as the case may be, were received late or at all;
2. properly document transactions including completing transaction record sheets, collapse forms if applicable, how deposits were received, how earlier contracts were superseded by later ones, document subject removals and date extensions, and ensure that all pages of the contract were properly paginated;
3. provide disclosures in writing in the form and manner prescribed by the Superintendent of Real Estate to the seller, the assignors or either of them prior to offering to acquire their properties in his own right or through his company, in accordance with section 38 of the Real Estate Act;
4. turn all contracts into his brokerage;
5. notify his managing broker or his brokerage that he had entered into contracts to acquire properties in his own right or through his company;
6. properly assign buyers ' interests as assignors, including the right to the deposit to the assignee;
7. ensure the sellers or the assignors, as the case may be, were advised to seek independent legal advice when the contracts were assigned including to Mr. Sharma or his company, or when the property was subject to a claim of builders lien;
8. clarify the nature of his agency representation in accordance with section 36 of the Real Estate Act that he was to provide to the assignor when he, personally or through his company, decided to accept an assignment of the assignors ' interests;
9. properly document transactions when deposits were to be paid directly to sellers prior to completion, and the consequent risks to the buyers or assignors, as the case may be, in such an event;
10. invariably credit deposit cheques to transactions to which the funds related;
11. notify sellers or their representatives when deposits were dishonoured due to insufficient funds;
12. notify sellers or their representatives when unpaid deposit cheques or dishonoured deposit cheques were subsequently replaced by payments including deposits that did not originate from the buyers in question;
13. avoid conflicts of interest when he purported to act as a dual agent on behalf of his company as seller and also act on behalf of buyers; and,
14. failed to withdraw offering agency to parties when he had a personal interest in the transaction.

Mr. Sharma professionally misconducted himself contrary to section 35(1) of the Real Estate Services Act in that he:

1. committed an act of deceptive dealing by advising the buyers to make a substantial deposit cheque payable to his unlicensed company, instead of his brokerage; by signing the seller 's name to a contract addendum, without the seller 's knowledge or consent, which purported to authorize the buyer to make payment of the deposit cheque to his unlicensed company, instead of his brokerage; by representing that the deposit would be held by his unlicensed company as a stakeholder; and by depositing the deposit cheque to the account of his unlicensed company, instead of his brokerage, contrary to section 27 of the Real Estate Services Act;
2. committed an act of wrongful taking by misappropriating and wrongfully converting the deposit he received from the buyers and by depositing that deposit cheque to the account of his company, instead of his brokerage, contrary to section 27 of the Real Estate Services Act and by intentionally failing to account for or pay over, within a reasonable time, the deposit which he or alternatively his unlicensed company had received from the buyers and thereby committed an act of professional misconduct;
3. contravened section 3-2(a) of the Council Rules by failing to turn in the contract to his brokerage in a timely manner; and
4. contravened section 3-2(b) and (d) of the Council Rules by failing to keep the managing broker informed of his failure to comply with the Real Estate Services Act.

Results

Smrat (Sam) Sharma 's licence was cancelled and the Council will not consider any application for licensing for a period of five years commencing April 15, 2005, to and including April 14, 2010 for misconduct and 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 Smrat (Sam) Sharma, and a Consent Order was issued. In addition, as a condition of continued licensing, he is required to pay enforcement expenses to the Council in the amount of $5,000.00 and to pay a discipline penalty to the Council in the amount of $10,000.00 as a condition of future licensing under the Real Estate Services Act.

P:May 23, 2006 R: No