Property Services (Regulation) Act 2011

2.

Interpretation.

2.— (1) In this Act, unless the context otherwise requires—

“act” includes an omission;

“accounting records”, in relation to a licensee, mean the books of account and all other documents required to be kept by the licensee in accordance with regulations made under section 46 ;

“advised letting value”, in relation to land valued for letting by a licensee, means the licensee’s reasonable estimate, at the time of such valuation—

( a) of the amount that would be paid by a willing tenant on appropriate letting terms in an arm’s length transaction after proper marketing where both parties act knowledgeably, prudently and without compulsion, or

( b) of the relevant price range within which would fall the amount that would be paid by a willing tenant on appropriate letting terms in an arm’s length transaction after proper marketing where both parties act knowledgeably, prudently and without compulsion;

“advised market value”, in relation to land valued for sale by a licensee, means the licensee’s reasonable estimate, at the time of such valuation—

( a) of the amount that would be paid by a willing buyer in an arm’s length transaction after proper marketing where both parties act knowledgeably, prudently and without compulsion, or

( b) of the relevant price range within which would fall the amount that would be paid by a willing buyer in an arm’s length transaction after proper marketing where both parties act knowledgeably, prudently and without compulsion;

“advisory committee” means an advisory committee appointed by the Authority under section 14(1) (a) ;

“Appeal Board” means the Property Services Appeal Board established by section 74 ;

“appropriate contribution”, in relation to the Fund and an application for a licence or the renewal of a licence, means the amount of the contribution (if any) prescribed in regulations made under section 95 in respect of such application;

“appropriate fee”, in relation to a provision of this Act, means—

( a) subject to paragraph (b), the fee prescribed in regulations made under section 25 in respect of that provision, and

( b) in the case of paragraph 14(1) of Schedule 5 , the fee prescribed in regulations made under section 74(4) in respect of that paragraph;

“approved housing body” means a body which has been approved under section 6(6) of the Housing (Miscellaneous Provisions) Act 1992;

“assets” include moneys;

“auction” includes a Dutch auction;

“Authority” means the Property Services Regulatory Authority established by section 9 ;

“bank”, in relation to a client account of a licensee, means a credit institution authorised by a competent authority in an EEA Member State, within the meaning of Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast) 1;

“business”, in relation to a licensee, means the licensee’s business as a licensee;

“Chairperson” means the chairperson of the Authority designated under section 10(2) ;

“Chief Executive” has the meaning given to it by section 19(1) ;

“client” includes—

( a) a person for whom a property service is provided by a licensee,

( b) a person to whom a refund of a deposit is due in relation to a property service provided to that person or another person, and

( c) in the event of the death, insolvency or other incapacity of a person who falls within paragraph (a) or (b) (in this definition referred to as the “person concerned”)—

(i) any person having authority to administer the estate of the person concerned,

(ii) any beneficiary under a will, intestacy or trust of the person concerned, or

(iii) any other personal representative of the person concerned;

“client account” means a current or deposit account in the name of a licensee in the title of which the word “client” appears and which is kept with a bank;

“client moneys” means moneys received by a licensee, in the course of the provision of a property service, from, for or on the account of a client other than moneys owed to the licensee by the client in respect of the provision of such property service;

“code of practice” means a code of practice published or approved of under section 18 as it is in effect from time to time;

“Commercial Leases Database” means the Commercial Leases Database established under section 87(1) ;

“commercial property” means property that is used for the purposes of business within the meaning of section 3 of the Landlord and Tenant (Amendment) Act 1980;

“commercial property lease” means an instrument creating a tenancy in respect of commercial property;

“company” means a company registered under the Companies Acts;

“complaint” means a complaint under section 63 ;

“complainant”, in relation to a complaint, means the person who made the complaint;

“connected relative”, in relation to a person, means—

F1 [ Data Protection Regulation means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 43 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation); ]

( a) the person’s spouse or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, or

( b) a parent, brother, sister or child of—

(i) the person, or

(ii) the person’s spouse or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

“Directive 2006/123/EC” means Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market 2;

“director”, in relation to a body corporate, includes—

( a) any person occupying the position of director, by whatever name called,

( b) any person who effectively directs or has a material influence over the business of the body corporate,

( c) any person in accordance with whose directions or instructions the directors of the body corporate are accustomed to act, unless the directors are accustomed so to act by reason only that they do so on advice given by the person in a professional capacity, and

( d) where the affairs of the body corporate are managed by its members, any of the members who exercises the functions of such management;

“duplicate”, in relation to a licence, means a copy of the licence issued by the Authority and with the word “duplicate” stamped on it;

“establishment day” means the day appointed under section 8 ;

“financial services”, in relation to a licensee, means any, or any combination, of the following:

( a) the provision by or on behalf of the licensee of advice to a purchaser in respect of his or her capacity to secure a loan in respect of the purchase of land and the amount of any such loan;

( b) the offering by or on behalf of the licensee to provide a service referred to in paragraph (a);

( c) the arranging by or on behalf of the licensee for a lender to provide a purchaser with a loan in respect of the purchase of land;

( d) the offering by or on behalf of the licensee to provide a service referred to in paragraph (c);

( e) the provision by the licensee of any service in the licensee’s capacity (if any) as a mortgage intermediary within the meaning of section 2 (as amended by item 1 of Part 12 of Schedule 3 to the Central Bank and Financial Services Authority of Ireland Act 2004) of the Consumer Credit Act 1995;

( f) the offering by the licensee to provide a service referred to in paragraph (e);

( g) the provision of any other service which would result in the licensee knowing the financial situation of the purchaser which could influence the price he or she might be willing to pay to purchase land;

“Fund” has the meaning given to it by section 77 ;

“grant” means a grant out of the Fund made pursuant to section 78(1) to a client in respect of a loss sustained by the client as a result of dishonesty on the part of a licensee, or as a result of dishonesty on the part of any principal officer, employee or agent or former principal officer, employee or agent of the licensee, arising from the provision of property services by or on behalf of the licensee to the client;

“improper conduct”, in relation to a licensee, means—

( a) the commission by the licensee of an act which renders the licensee no longer a fit and proper person to provide property services or a particular class of property service,

( b) the commission by the licensee of a contravention of—

(i) section 28(1) , 29(9) , 31(5) , 37(1) , (2), (4), (5), (6) or (7), 41(1) , 43(1) , (2) or (3), 44 , 45(1) or (2), 55(1) or (2), 56(1) , 57(1) , 58(3) , 59(1), 60(1) , 61 , or 81(1) or (2), or

(ii) a provision of regulations made under section 46 , 62 or 95 ,

or

( c) the giving by the licensee of a statement of advised market value or advised letting value of land which is clearly unreasonable;

“independent contractor” means an individual who provides a property service where—

( a) no employee of the individual provides such service on behalf of the individual, and

( b) in the case of an individual who is a partner in a partnership, no other principal officer provides such service on behalf of the individual,

and whether or not the individual engages in any other business;

“inspector” means a person appointed under section 27(1) to be an inspector;

“investigation” means an investigation under section 65(1) ;

“investigation report”, in relation to an investigation, means a report in writing prepared, following the completion of the investigation, by the inspector appointed under section 65(1)(b) to carry out the investigation—

( a) stating that the inspector—

(i) is satisfied that improper conduct by the licensee to whom the investigation relates has occurred or is occurring, or

(ii) is not so satisfied,

as appropriate,

( b) if paragraph (a)(i) is applicable, stating the grounds on which the inspector is so satisfied, and

( c) if paragraph (a)(ii) is applicable, stating—

(i) the basis on which the inspector is not so satisfied, and

(ii) the inspector’s opinion, in view of such basis, on whether or not a further investigation of the licensee is warranted and, if warranted, the inspector’s opinion on the principal matters to which the further investigation should relate;

“land” has the meaning assigned to it by the Land and Conveyancing Law Reform Act 2009;

“landlord” means the person, including a sublandlord, entitled to the legal estate immediately superior to a tenancy;

“lessor”, in relation to land, includes a prospective lessor of the land;

“licence” means a licence in the specified form issued under section 31 ;

“licensee”, in relation to a licence, means the holder of the licence;

“local authority” has the same meaning as it has in the Local Government Act 2001;

“maintain”, in relation to a record, includes keep;

“major sanction”, in relation to a licensee, means—

( a) the revocation of the licence of the licensee and a prohibition (which may be a permanent prohibition, a prohibition for a specified period or a prohibition subject to specified conditions) against the former licensee applying for a new licence or a particular class of licence,

( b) the suspension for a specified period of the licence of the licensee or, in any case where the period of such suspension (in this paragraph referred to as “the relevant period”) sought to be imposed is longer than the period of validity of the licence left to run, the suspension of the licence during that period and a prohibition for a specified period against the former licensee applying for a new licence or a particular class of new licence, which periods, added together, are equivalent to the relevant period,

( c) a direction to the licensee that the licensee pay a sum, as specified in the direction but not exceeding €50,000, into the Fund,

( d) a direction to the licensee that the licensee pay a sum, as specified in the direction but not exceeding €50,000, to the Authority, being the whole or part of the cost to the Authority of an investigation of the licensee,

( e) a direction to the licensee that the licensee pay a sum, as specified in the direction but not exceeding €250,000, to the Authority by way of a financial penalty for an act of the licensee specified in the direction, or

( f) any combination of any of the sanctions specified in paragraphs (a) to (e);

“management body”, in relation to a multi-unit development, means—

( a) that company or unincorporated body—

(i) which is formed for the purposes of becoming the owner of all or some of the common areas of the development, and

(ii) which manages all or some of the common areas of the development,

and

( b) any person who manages the common areas referred to in paragraph (a) at any time before the company or unincorporated body referred to in that paragraph starts to manage such common areas;

“Minister” means the Minister for Justice and Equality;

“minor sanction”, in relation to a licensee, means—

( a) the issue, to the licensee, of—

(i) advice (including advice relating to participation in a professional competence scheme),

(ii) a caution,

(iii) a warning, or

(iv) a reprimand,

or

( b) any combination of any of the sanctions specified in paragraph (a);

“multi-unit development” means an apartment complex, housing estate, or any other complex or estate containing residential units within the meaning of the Multi-Unit Developments Act 2011;

“Official Assignee” has the meaning assigned to it by section 3 of the Bankruptcy Act 1988;

“personal representative”, in relation to the estate of a deceased person, means that person’s personal representative within the meaning of section 3(1) of the Succession Act 1965, and includes any person having, in respect of the deceased, under the law of another state any functions corresponding to the functions for administration purposes under the law of the State of a personal representative within the meaning of that section, and references to personal representatives as such shall be construed as references to personal representatives in their capacity as having such functions;

“principal officer”—

( a) in relation to a body corporate, means any person who is—

(i) a director, manager, secretary or other similar officer of the body corporate, or

(ii) a person purporting to act in any such capacity,

( b) in relation to a partnership—

(i) means any person who is—

(I) a partner in, or a manager or other similar officer of, the partnership, or

(II) a person purporting to act in any such capacity, and

(ii) if any partner in the partnership is both a body corporate and a licensee or an applicant for a licence, includes any person who is—

(I) a director, manager, secretary or other similar officer of such partner, and

(II) a person purporting to act in any such capacity;

“professional competence scheme” means a scheme of education and training provided for in regulations made under section 79 ;

“professional indemnity insurance” means a policy of indemnity insurance against losses arising from claims in respect of any description of civil liability incurred—

( a) by a licensee arising from the provision of property services, or

( b) by a principal officer, employee or agent or former principal officer, employee or agent of the licensee arising from such provision;

“property management services” means services in respect of the management of a multi-unit development carried out on behalf of a management body, and such services include—

( a) administrative services, and

( b) the procurement of or any combination of the maintenance, servicing, repair, improvement or insurance of the development or any part of the development;

“property service” means the provision, for consideration, in the State, in respect of property located within or outside the State, of any of the following—

( a) the auction of property other than land,

( b) the purchase or sale, by whatever means, of land,

( c) the letting of land (including a letting in conacre or for the purposes of agistment), or

( d) property management services,

by—

(i) a property services employer,

(ii) an employee of a property services employer,

(iii) a principal officer of a property services employer, or

(iv) an independent contractor;

“property services agreement” means a letter of engagement referred to in section 43(1) which has not ceased to have any force and effect by virtue of the operation of section 43(2) ;

“property services employer” means a person (referred to in this definition as “the employer”)—

( a) who is an individual who provides a property service where an employee of the employer may also provide such service on behalf of the employer, or

( b) whose employees or principal officers provide a property service on behalf of the employer,

and whether or not the employer engages in any other business;

“purchaser”, in relation to land, includes a prospective purchaser of the land;

“Register” means the Property Services Register established under section 29(1) ;

“relevant commercial lease” means a commercial property lease entered into on or after the commencement of section 87 ;

“relevant price range”, in relation to land valued for sale or letting by a licensee, means a price range where the difference between the upper limit of such valuation and the lower limit of such valuation is not more than 10 per cent of such lower limit;

“residential property” means a property that is used as a self-contained residential unit and includes any land appurtenant to it or usually enjoyed with it;

“satisfied” means satisfied on reasonable grounds;

“specified”—

( a) in relation to a form of document, means specified under section 97 ,

( b) in relation to a period, means a period which is reasonable in the circumstances concerned,

( c) in relation to a time, date or place, means a time, date or place, as the case may be, which is reasonable in the circumstances concerned;

“tenancy” means the estate or interest which arises from the relationship of landlord and tenant however created;

“tenant” means the person, including subtenant, in whom a tenancy is vested;

“terms” include conditions;

“vendor”, in relation to land, includes a prospective vendor of the land.

(2) For the purposes of this Act, a property service shall be regarded as being provided in the State if the property service is provided by a person established in the State and whether or not—

( a) the client concerned is ordinarily resident in the State, or

( b) the property concerned is located in the State.

(3) For the purposes of subsection (2), a client is ordinarily resident in the State if the client is—

( a) an individual who has had his or her principal residence in the State for the period of 12 months immediately preceding the provision of the property service concerned referred to in that subsection,

( b) a company, or

( c) any other body corporate established under a law of the State.

(4) References in this Act (excluding subsection (5) but including sections 48 and 54 and regulations made under this Act) to a former licensee also include a person—

( a) who was lawfully providing a property service immediately before the commencement of section 28 in so far as such commencement relates to such property service, and

( b) in respect of whom the Authority refuses to issue a licence in respect of such property service.

(5) References in Part 7 (including sections 69, 70 and 71 ) to a licensee include a former licensee and the other provisions of this Act (including the definitions of “investigation report”, “major sanction” and “minor sanction” in section 2(1) , section 11(2)(h) , (i) and (j), Part 8 and Schedule 5 ) shall, with all necessary modifications, be construed accordingly.

(6) References in the definition of “financial services” in section 2(1) to “on behalf of the licensee” include references to the service concerned being provided through a subsidiary or associated body of the licensee.

(7) Where a provision of this Act confers a discretion on the Authority, the Appeal Board or a court to revoke or suspend the licence of a licensee and the licensee holds 2 or more licences, that discretion may be exercised so as to revoke or suspend, as the case may be, one, some or all of those licences as the Authority, the Appeal Board or the court, as the case may be, thinks fit in the circumstances of the case, and the other provisions of this Act shall, with all necessary modifications, be construed accordingly.

Annotations:

Amendments:

F1

Inserted (25.05.2018) by Data Protection Act 2018 (7/2018), s. 218(a), S.I. No. 174 of 2018.

Modifications (not altering text):

C1

References to “Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006” construed (31.03.2014) by European Union (Capital Requirements) Regulations 2014 (S.I. No. 158 of 2014), reg. 160.

References to repealed Directives

160. A reference in any enactment to a Directive repealed by the Capital Requirements Directive shall be construed in accordance with Article 163 of the second-mentioned Directive.

1 OJ No. L177, 30.06.2006, p.1.

2 OJ No. L376, 27.12.2006, p.36.

43 OJ No. L 119, 4.5.2016, p.1