EMPLOYEES WHO ENGAGE IN REAL ESTATE BROKERAGE TRANSACTIONS

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1 EMPLOYEES WHO ENGAGE IN REAL ESTATE BROKERAGE TRANSACTIONS By: Paul Mayer of the law firm of Fasken Martineau In the past several issues of espace Montreal, we looked at the powers given to real estate agents and brokers by the Quebec Real Estate Brokerage Act (the Act ). The Act grants them a quasi-exclusive right to engage in real estate brokerage transactions on behalf of others for remuneration. We also looked at certain types of persons who are not subject to the Act, such as lawyers, notaries and chartered administrators, who can carry out real estate transactions without being members of the Association des courtiers et agents immobiliers du Québec (the ACAIQ ) and without being subject to the rules and duties imposed by the Act, provided they qualify for the exemptions stipulated in the Act. In this issue, we will examine another type of person who can engage in real estate brokerage transactions for remuneration without being a member of the ACAIQ, namely any employee who, in the course of his principal occupation, engages in [a real estate] transaction [ ] on behalf of his employer when the latter is not a broker. The Objective of the Act This exemption can only be understood by looking at the objective of the Act, which is to protect the public. A real estate broker or agent, in his capacity as an intermediary, enters into a relationship of trust and confidence with his clients. Individuals with no experience in real estate transactions will hire real estate agents and brokers for their superior skills. This relationship between client and broker can be characterized as one of trust and dependence on one side, and superior knowledge on the other. But one side can easily take advantage of the other, hence the need for the rules and duties imposed by the Act. In order to achieve that objective, the Act created the ACAIQ, whose primary goal is to protect the public. The Act and the regulations

2 Page 2 enacted thereunder provide for the enforcement of numerous rules, including a code of ethics and the professional inspection of its members. These rules include the duty to take certain professional courses and to possess certain qualifications in order to become a real estate broker or agent. Furthermore, there are rules concerning compulsory disclosure that apply when a broker holds an interest in a property being purchased, sold or exchanged. Other rules govern the sharing of compensation, advertising and representation, minimum requirements of certain real estate brokerage contracts, trust accounts and the creation of the Fonds d indemnisation du courtage immobilier. The Act provides for a syndic whose duty it is to investigate offences under the Act. The Act also provides for a disciplinary committee whose mandate it is to hear complaints filed against members of the ACAIQ for offences under the Act or its regulations. Not the Same Need for Protection This being the objective of the Act, employees in the course of their principal occupation are exempted from the requirement of being a broker because the need to protect is not the same. An employer knows that he is dealing with a subordinate. The employee looks up to his employer as a superior and will strive to serve the employer s best interests and thus earn his remuneration. In such circumstances, the Act treats both employer and employee as one. When the public deals with the employee, they know they are dealing with the employer. Common examples of the application of this exemption include: a person who is employed by a builder or developer to sell or lease his product; a janitor or caretaker who oversees the maintenance and leasing of a building on behalf of the owner; an employee who, in the course of his duties for a real estate developer, develops, sells, purchases or leases real estate property.

3 Page 3 In all these cases, the employee is engaging in a real estate transaction on behalf of his employer. He is not required to hold a certificate issued by the ACAIQ and is not subject to the rules and duties imposed by the Act in the course of employment. Need to Demonstrate Status as an Employee To qualify for this exemption, it is necessary to demonstrate one s status as an employee. This should be done in accordance with the meaning of the word employee as defined in the Civil Code of Québec, namely a person who undertakes for a limited period to do work for remuneration, according to the instructions and under the direction or control of another person, the employer. Jurisprudence on this issue is abundant. Naturally, an employee is a physical person and not a company. A legal person is not entitled to the status of employee, and is not eligible for the exemption provided by the Act. Am I Making Myself Clear? Only one decision dealing with this provision of the Act, Association des courtiers et agents immobiliers du Québec v. Robert Lemay, was handed down by the Court of Quebec in 1999, and it is not very useful seeing as the employee defence lacked credibility. The case began to turn sour for Mr. Lemay when, upon closing the sale of a property on Masson Street, he was confronted by one of the parties to the transaction with the accusation that he was not a broker: This is illegal brokerage. If you re involved in the transaction and I don t get a permit number, I won t give you any compensation. Am I making myself clear? Clever fellow that Mr. Lemay was, he alluded to the fact that lawyers and notaries are not subject to the Act when engaging in a brokerage transaction in the course of their practice and replied: No problem. When the time comes, I ll have the commission paid to my lawyer. The offer to purchase contained the following clause: The purchaser promises to purchase through the intermediary of Société Immobilière Inverteck, real estate broker,

4 Page 4 represented by Robert Lemay, the property. It also stipulated that the commission would be split with Société Immobilière Inverteck. At trial, Mr. Lemay was befuddled by his own numerous illogical and contradictory arguments. He simultaneously argued that he had not acted as a broker, that he was a broker, or that at least he would have been a broker had the ACAIQ issued him a permit. His other novel ground of defence was that he was not subject to the Act because he was an employee of the purchaser. The court politely pointed out that he had failed to overcome the burden of proof necessary to establish his link of employment to either the seller or the purchaser. Finding him guilty of the accusation that he acted as a broker without a certificate, the court concluded as follows: I accept that you have the right to change your mind with respect to your defence but this raises the question of credibility. In other terms, you say at first: I acted as a broker and I had a permit; then since I do not have any proof of a permit, I argue the opposite, namely, I did not act as a broker. OUCH! In the Course of His Principal Occupation The second element to prove in order to qualify for the exemption is that an employee must engage in a brokerage transaction in the course of his principal occupation. Some would suggest this phrase means that an employee who carries out real estate transactions for several owners may have difficulty identifying the principal occupation under which he is entitled to exemption from the application of the Act. While in Quebec no case law deals directly with this issue, leaving little indication on how this expression should be interpreted, the Ontario courts have examined the corresponding provision of the Ontario Real Estate and Business Brokers Act (the Ontario Act ). The Ontario Act stipulates that full-time salaried employees do not have to be real estate agents or brokers in Ontario. The Ontario High Court of Justice was called upon to consider the meaning of the phrase full-time salaried employee in 1974 in Simpson v. Toronto Factory Properties Ltd.

5 Page 5 Simpson the Employee In this case, Stanley George Simpson (no relation to Homer) was a chartered accountant and a business management consultant. In July 1961, he was approached by a personal friend, Walter Watt, who proposed that he take care of the daily affairs of his real estate development company, Toronto Factory Properties Ltd., until his health was restored. Assuming it to be of short duration, Simpson accepted and entered upon his new duties at once. Eleven days later, his friend Watt died. Shortly after, he was hired by the Board of Directors of the company to assist Mrs. Watt in the day-to-day management of the eight properties owned by the company. It was agreed that he would be paid a salary of $ a week. For any sales and/or leases effected by him, he would also receive additional remuneration equal to that of a real estate agent s commission. Simpson established a daily routine. Each morning, he would go to the company offices, answer the mail and report over the telephone to Mrs. Watt. His activities included dealing with tenants complaints, collecting certain rents, maintaining the buildings and negotiating with potential tenants and purchasers of the properties in question. He had three handymen under him who were subject to his orders. He also needed to placate creditors until the company acquired a more liquid position. Alongside these responsibilities, Simpson maintained his own accountant s office. In 1963, 40% of his income derived from the company. That source of income steadily declined so that, by 1967, Simpson derived 96% of his income as an accountant from sources other than the company. In short, he was able to create a growing business of his own in the course of his employment with the company. Simpson claimed a commission in connection with the sale of two properties and the lease of a third. The company refused to pay because they claimed that Simpson was not entitled to receive a commission, as he was not a registered broker under the Ontario Act. Simpson claimed that he was entitled to the remuneration because he was not subject to the Act, being an employee of the company.

6 Page 6 The court held that there was no difficulty in ascertaining that Simpson was a salaried employee of the company. It needed to determine, however, whether he could be considered full-time. After a review of several dictionary definitions of the term, the court held that the popular and ordinary construction of that expression would be that full, normal and customary working hours must be spent on the job each day. The court held that Simpson had performed every service demanded to which the company was entitled under the employment agreement. This did not require or imply a full working day for five days in every week of the year, it meant standing by to assist when the exigencies of the occasion required his helping hand. The court held that Simpson could be considered full-time despite the fact that he was carrying on his own accountancy practice during normal working hours. As a result, Simpson was qualified under the exemption and was entitled to receive the commission he claimed from the company. UDI Questions the Scope of the Exemption As we have seen, the exemption the Act provides for employees is fairly narrow. The following are some examples of persons who do not qualify for the exemption: a janitor who provides his services through a corporation, as an employee cannot be a corporation; an employee of a real estate broker, who is not himself a real estate agent; a person who acts as a broker or agent for a builder to sell his product but cannot prove that he is an employee as defined by the law; a leasing agent who is employed by a management company that administers a property on behalf of the owner; and an employee of an owner who owns only a portion of the property.

7 Page 7 In April of this year, Pierre Cléroux, President and Director General of the Urban Development Institute of Quebec ( U.D.I. ), which acts as spokesperson for the non-residential real estate industry in Quebec, wrote to the Ministry of Finance at the request of some of its members with respect to proposed changes to the Act. The brief questioned the intended purpose of the exemption applicable to employees and whether the goal of protecting the public was in fact being achieved. U.D.I. criticized the narrow scope of the exemption applicable to employees and argued that it does not reflect current real estate practices; it maintained that there are numerous persons who carry on real estate transactions in contravention of the strict wording of the exemption without risk to the public. U.D.I. pointed out, moreover, that: it is rare that a property owner carries on business through a single company. In many cases, these owners act through a number of companies. For example, Société immobilière Trans-Québec (SITQ), an affiliate of the Caisse de dépôt et placement du Québec, owns several buildings in Montreal through a number of companies. Not all of these companies have leasing agents. A leasing agent can be employed by the parent company and work for different affiliates; many property owners hire management companies to administer their buildings. These management companies act exclusively for property owners. They employ leasing agents who act for owners who have retained their services; in the real estate industry, specific buildings often belong to several owners, in various proportions. U.D.I. argues that the employees of property managers who carry out real estate transactions should not be subject to the Act. U.D.I. requests that the Act be amended to provide that all leasing agents, whether they are employed by an owner of only a portion of the property or by a management company, should not be subject to the Act.

8 Page 8 Conclusion It is true that laws need to adapt and be responsive to current practices and realties. It should be noted, as an example of recent changes, that the Act was amended in December 2002 (although these amendments are not yet in force) to exclude real estate mortgage brokers and agents from the application of the Act so that they may be governed in future by the Agence nationale d encadrement du secteur financier. The public benefit of requiring that leasing agents employed by a professional and wellrecognized real estate management company be members of the ACAIQ is not evident given that owners who select such management companies do not require the same level of protection as the public. However, it is worth remembering, whenever contemplating a legislative amendment, that the Act is for the benefit of the public, without discrimination. It applies to the rich and to the poor, to bungalows and to premises in Place-Ville-Marie. Not all parties to commercial real estate transactions are familiar with its customs and forms. However sophisticated they may be in their own fields, large or small companies require as much protection from unlicensed brokers and agents as the average citizen. The Act has numerous advantages and benefits, which cannot be discarded without reflection. For these reasons, exemptions to the Act need to be carefully considered.

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