Property Services (Regulation) Act 2011

78.

Compensation for loss due to dishonesty.

78.— (1) Where the Authority is satisfied that a client of a licensee has sustained a loss as a result of dishonesty on the part of that 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 that licensee, arising from the provision of property services by or on behalf of the licensee, then, subject to the provisions of this section, the Authority shall make a grant to that client out of the Fund.

(2) The amount of a grant shall be such as represents, in the opinion of the Authority, the reimbursement of the amount or value of the loss sustained by the client concerned and the reasonable costs incurred by the client in seeking to recover it with, where the Authority thinks fit, interest at the rate for the time being standing specified under section 26 of the Debtors (Ireland) Act 1840 on the whole or any part of the amount or value of such loss in respect of the whole or any part of the period between the date when the loss was sustained and the date of the making of the grant, but excluding damages or any other form of loss consequent on the client being deprived of the amount or value of the loss sustained.

(3) The Authority shall have a discretion to make or refuse to make a grant to a client in respect of a loss in any case in which it considers that—

( a) the licensee concerned did not, at the time when the loss was sustained, have a licence in force in respect of the property service to which the loss relates,

( b) there has been dishonesty or negligence on the part of the client or of any person for whom that client is responsible which has contributed to the loss, or

( c) the client has contributed (including by omission) to improper conduct by the licensee which falls within paragraph (a) or (b) of the definition of “improper conduct” in section 2(1) ,

and, where the Authority decides to make a grant in any such case, it shall have a discretion to make it only to a limited extent.

(4) A grant may be made notwithstanding that the licensee concerned has, after the act of dishonesty, died or ceased to be a licensee.

(5) No grant may be made in respect of a loss made good otherwise.

(6) ( a) On the making of any grant to any client of a licensee in respect of any loss—

(i) the Authority shall, to the amount of the grant, be subrogated—

(I) to any rights or remedies to which that client was entitled on account of the loss against the licensee or any other person or against the estate of such licensee or other person,

(II) to any rights or remedies to which the licensee or any principal officer, employee or agent or former principal officer, employee or agent of the licensee was entitled on account of the loss against any other person or against the estate of such other person, and

(III) to all other rights and remedies (if any) of that client or such licensee or any principal officer, employee or agent or former principal officer, employee or agent of the licensee in respect of the loss,

and

(ii) the client shall have no right under bankruptcy or other legal proceedings or otherwise to receive any sum out of the assets of the licensee or of any principal officer, employee or agent or former principal officer, employee or agent of the licensee in respect of the loss until the full amount of the grant has been reimbursed to the Authority.

( b) In paragraph (a), references to the licensee or any principal officer, employee or agent or former principal officer, employee or agent of the licensee include, in the event of the death, insolvency or other disability of such licensee, principal officer, employee or agent or former principal officer, employee or agent, references to the personal representative of such licensee, principal officer, employee or agent or former principal officer, employee or agent or any other person having authority to administer the estate of such licensee, principal officer, employee or agent or former principal officer, employee or agent.

(7) No grant shall be made unless a notice in writing of the loss is received by the Authority—

( a) in the specified form, and

( b) within 12 months after the loss comes to the knowledge of the client concerned.

(8) The Authority, for the purposes of inquiring into any matters which may affect the making or refusal of a grant, may take evidence on oath, and the administration of such an oath by any member of the Authority or the Chief Executive is hereby authorised.

(9) ( a) A grant may, at the discretion of the Authority, be paid either in one sum or in such instalments as the Authority may determine.

( b) The Authority, if satisfied that the financial stability of the Fund so requires, may postpone payment of any grant or any instalment of any grant.

(10) For the purposes of this section, a licensee, a partnership in which the licensee is a partner, or a body corporate beneficially owned or controlled by that licensee, shall not be a client of—

( a) the licensee,

( b) a partnership in which the licensee is a partner,

( c) a body corporate beneficially owned or controlled by that licensee.

(11) The Authority may, for the purposes of satisfying itself as referred to in subsection (1) or for the purposes of protecting its rights under subsection (6), or for both such purposes, require any person to answer all questions, execute all documents and take all steps as may, in the opinion of the Authority, be necessary for any of those purposes, and may require a client of a licensee who claims he or she has sustained a loss referred to in subsection (1) to verify any document by affidavit.