25 Jun Disciplinary action against a real estate agent
Disciplinary action against a real estate agent
by George Coucounis
Real estate agents, as well as other professionals, whose profession is regulated by law, in the exercise of their profession must show conduct that is not incompatible with their profession, otherwise they commit a disciplinary offence and they may be prosecuted by the Council of Real Estate Agents. The Council, when examining a complaint or when it becomes aware in any way that a registered real estate agent may have committed any of the disciplinary offences mentioned in the law, shall immediately ensure that an investigation is carried out. When the investigation proves at first sight the commission of a disciplinary offence, the affected real estate agent is informed in writing of the case against him and is given the opportunity to be heard either in person or through a lawyer. The hearing of the case shall be conducted in proportion of what is established in the Public Service sector and the Council with its decision may either find the real estate agent guilty of all or any of the disciplinary offences for which he is accused and impose on him 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 a real estate agent and provides that a registered real estate agent commits a disciplinary offence and is subject to disciplinary proceedings before the Council if – (a) commit any penal offense involving lack of honesty or moral obscenity; or (b) has succeeded in registering with the Real Estate Registry or has secured an annual permit using fraud or fraudulent representations or statements; or (c) has acted or omitted anything in a manner which amounts to a breach of any of the duties or obligations of a real estate agent; or (d) in the exercise of his profession exhibits dishonest conduct or any other conduct or conduct inappropriate or incompatible with his 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.
Such a decision of the Council may be appealed through a recourse before the Administrative Court, which shall review its legality. The Administrative Court in a judgment issued on 8.6.2021 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 decided to launch 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; if the Council found her guilty, it would impose on her one of the disciplinary sanctions prescribed in the law. The Council, after hearing the applicant, imposed a pecuniary penalty on her.
The applicant claimed before the Administrative Court the annulment of the decision of the Council and the sanction imposed on her, raising various issues, especially that the republishing of an article on her personal account could not be considered as being done in the exercise of the real estate agent profession. The Administrative Court focused its attention on the issue of whether the specific action of the applicant falls within the exercise of the profession of the real estate agent and for this reason it referred to a similar judgment issued by another judge of the Administrative Court on 31.7.2020. There, the Court did not agree with the Council’s suggestion that the interpretation of the phrase “in the exercise of his profession” is broad and that is how it should be interpreted 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 of the other judge and held that article 28(1)(d) of the Law presupposes and requires that any alleged misconduct by a real estate agent (or proportionally by an assistant real estate agent as the Council rightly or wrongly claims) must have been demonstrated in the exercise of the profession of the real estate agent. It further held that the applicant’s posts were not made in the exercise of the profession of an assistant real estate agent and therefore, the specific legislative provision was erroneously applied and annulled the decision of the Council and consequently the sanction against the applicant.