Consent Order

Published on
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Licensee
Alan Cavin, Alan Gordon Cavin
Brokerage at Time of Sanctioned Activity
McKinnon & Associates Real Estate Services Ltd.
Current Brokerage
Mckinnon & Associates Real Estate Services, Nanaimo
Consent Order Date
17 March 2009

Summary

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 - contravention of Act or Rules] and 35(1)(d) [professional misconduct - incompetence], 6 [managing broker responsibilities], 7(5) [must not allow unlicensed person to provide services], 25 [brokerage records], and 27 [payment into trust] of the Real Estate Services Act, and sections 3-1 [managing broker responsibilities], 3-3(1 [duties to clients], 3-4 [duty to act honestly and with reasonable care and skill], 5-3(??) [signing agreements on behalf of clients], 5-7 [definition of associate], 5-8 [disclosure], 5-9 [disclosure of interest in trade], 5-10 [disclosure], 5-11 [disclosure of remuneration], 6-1 [payment to unlicensed persons prohibited], 8-4 [general records], and 8-5 [trading records] of the Council Rules

Issue: Alan Gordon Cavin, associate broker, Neil Realty Services Inc. dba Realty Executives Mid-Island, Nanaimo, while licensed as managing broker for Roger McKinnon & Associates Ltd. dba McKinnon & Associates Real Estate Services, Nanaimo, committed professional misconduct within the meaning of section 35(1)(d) of the Real Estate Services Act in that he demonstrated incompetence by failing to fulfill his responsibilities as managing broker for the performance of the duties imposed on the brokerage by its licence within the meaning of section 6 of the Real Estate Services Act and section 3-1 of the Council Rules and without restricting the generality of the foregoing he:

  1. when acting as limited dual agent, failed to promptly and fully disclose to the buyers of a property located on Jesters Way, Nanaimo, under a Contract of Purchase and Sale dated September 6, 2006, that he was acting in a conflict of interest in that the seller of the property, was an officer and director of McKinnon & Associates and he failed to take reasonable steps to avoid the conflict of interest, contrary to sections 3-3(1)(i) and 3-3(1)(j) of the Council Rules and section 35(1)(d) of the Act;
  2. failed to disclose to the buyers and sellers of a property on Jesters Way, Nanaimo, under a Contract of Purchase and Sale dated September 6, 2006, prior to providing any trading services, that he was acting as a limited dual agent and the nature of that representation, contrary to sections 5-8 and 5-10 of the Council Rules;
  3. failed to disclose to the buyer and seller of a property on Riverside Lane, Courtenay, under a Contract of Purchase and Sale dated September 9, 2006, prior to providing any trading services, that he was acting as a limited dual agent and the nature of that representation or, in alternative, if he was not acting as a limited dual agent, he failed to sufficiently disclose to the parties the nature of his representation, contrary to sections 5-8 and 5-10 of the Council Rules;
  4. failed to provide to the buyer of a property on Riverside Lane, Courtenay, under a Contract of Purchase and Sale dated September 9, 2006, with a Notice of Interest in Trade in circumstances where an officer and director of the brokerage was also an officer and director of the seller of the property, such that the seller was an associate of the brokerage as defined under section 5-7 of the Council Rules, and trading services were provided by the brokerage to the seller, contrary to sections 5-8 and 5-9 of the Council Rules;
  5. failed to disclose to the buyer and seller of a property on Riverside Lane, Courtenay, under a Contract of Purchase and Sale dated August 30, 2006, prior to providing any trading services, the nature of his representation, contrary to sections 5-8 and 5-10 of the Council Rules;
  6. failed to provide to the buyer of a property on Riverside Lane, Courtenay, under a Contract of Purchase and Sale dated August 30, 2006, with a Notice of Interest in Trade in circumstances where an officer and director of the brokerage was also an officer and director of the seller, such that the seller was an associate of the brokerage as defined under section 5-7 of the Council Rules, and trading services were provided by the brokerage through the said licensee to the seller, contrary to sections 5-8 and 5-9 of the Council Rules,
  7. failed to promptly disclose to the buyers, under a Contract of Purchase and Sale dated October 18, 2006 with respect to a property on Riverside Lane, Courtenay, when acting in the capacity of agent for the buyers, the source and amount of remuneration received other than that paid directly by the buyers, in that the said licensee received commission from the sellers of the property as a result of the sale, contrary to sections 5-8 and 5-11 of the Council Rules;
  8. when acting as agent for the buyers, failed to ensure that the parties to the Contract of Purchase and Sale dated October 18, 2006 with respect to a property on Riverside Lane, Courtenay, entered into a separate written agreement with respect to the deposit being paid to the vendor 's solicitor and failed to advise the purchasers to obtain independent legal advice with respect to the deposit arrangements, contrary to sections 3-3(1)(a), 3-3(1)(d) and 3-4 of the Council Rules, and sections 27 and 35(1)(d) of the Act;
  9. in his capacity as managing broker, failed to ensure that the brokerage maintained a register of trades for each fiscal year and trade record sheets in a form required by the Council, contrary to sections 3-1(1), 3-4, 8-4 and 8-5 of the Council Rules, and sections 25 and 6(2) of the Act;
  10. in his capacity as managing broker, failed to provide immediate notice in writing or notice confirmed in writing, to the parties to the Contract of Purchase and Sale dated September 6, 2006 with respect to a property located on Jesters Way, Nanaimo, that the purchasers had not paid the $5,000.00 deposit due to the brokerage within 24 hours of the contract being accepted on or about September 9, 2006 as required, in that the deposit was not paid to the brokerage until October 27, 2006, contrary to sections 3-1(4), 3-1(5) and 3-4 of the Council Rules, and section 35(1)(d) of the Act;
  11. in his capacity as managing broker, failed to provide a notice confirmed in writing, to the parties to the Contract of Purchase and Sale dated July 17, 2006 and accepted on or about July 18, 2006 with respect to a property located on Ross Road, Nanaimo, that the purchaser had not paid the $20,000.00 deposit due to the brokerage within 24 hours of acceptance in that $10,000.00 of the deposit was not paid to the brokerage until August 14, 2006, contrary to sections 3-1(4), 3-1(5) and 3-4 of the Council Rules, and section 35(1)(d) of the Act;
  12. in his capacity as managing broker, failed to ensure that a $10,000.00 deposit under a Contract of Purchase and Sale dated September 9, 2006 with respect to a property on Riverside Lane, Courtenay, required under the terms of the Contract of Purchase and Sale to be held in trust by the brokerage, was paid into the brokerage trust account, in that the deposit was paid to the seller 's solicitors, contrary to sections 3-1(1) and 3-4 of the Council Rules, and sections 6(2) and 27 of the Act;
  13. in his capacity as managing broker, failed to ensure that the deposit under the Contract of Purchase and Sale dated August 4, 2006 for a property on Riverside Lane, Courtenay, was paid to the vendor 's solicitor, as required under the Contract of Purchase and Sale, but permitted that deposit to be paid into the brokerage 's trust account, contrary to sections 3-1(1) and 3-4 of the Council Rules, and sections 6(2), 27 and 35(1)(d) of the Act;
  14. in his capacity as managing broker, failed to ensure with respect to services provided by an unlicensed individual on behalf of the brokerage, that he obtained written authorization as required by section 5-3 of the Council Rules when he signed acceptance on behalf of the seller under the Contract of Purchase and Sale dated August 4, 2006 with respect to aproperty on Riverside Lane, Courtenay, contrary to sections 3-1(1) and 3-4 of the Council Rules, and sections 6(2) and 35(1)(d) of the Act; and
  15. failed to ensure that an unlicensed representative was properly licensed to provide real estate services on behalf of the brokerage, in accordance with section 7(5)(a) of the Act(?) from on or about March 1, 2006 until on or about June 18, 2007, contrary to sections 3-1(1) and 3-4 of the Council Rules, and sections 6(2) and 35(1)(d) of the Act.

Issue: Roger McKinnon & Associates Ltd. dba McKinnon & Associates Real Estate Services, Nanaimo, brokerage, currently unlicensed, committed professional misconduct within the meaning of section 35(1)(a) of the Real Estate Services Act in that it permitted an unlicensed representative to provide real estate services on its behalf from on or about March 1, 2006 until on or about February 16, 2007, contrary to section 7(5) of the Act and section 6-1 of the Council Rules.

Results

Alan Gordon Cavin 's licence as a managing broker was suspended for three (3) years from February 16, 2007 to February 15, 2010 (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 Alan Gordon Cavin, and a Consent Order was issued, although during the suspension period he is eligible to be licensed as an associate broker. In addition, as a condition of relicensing as a managing broker, he was ordered to successfully complete the Broker 's Licensing Course. Further, Alan Gordon Cavin and McKinnon & Associates Real Estate Services are jointly and severally liable to pay enforcement expenses to the Council in the amount of $750.00.

McKinnon & Associates Real Estate Services was ordered to pay a discipline penalty to the Council in the amount of $1,000.00 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 McKinnon & Associates Real Estate Services, and a Consent Order was issued. Further, McKinnon & Associates Real Estate Services and Alan Gordon Cavin are jointly and severally liable to pay enforcement expenses to the Council in the amount of $750.00.