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C.C.S.M. c. R20

The Real Estate Brokers Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1           In this Act,

"advertise" includes to place an advertisement in a newspaper or other publication or medium of communication to the public, but does not include the publication or dissemination of an advertisement so placed by the publisher or owner of the newspaper, publication or medium, unless it is a publication whose primary purpose is the advertising of real estate; (« faire de la publicité »)

"association" means The Manitoba Real Estate Association Inc., a corporate body duly incorporated under the laws of Manitoba; (« association »).

"authorized official" means an official named in the certificate of registration of a registered broker; (« représentant officiel »)

"branch office" means an office, other than the principal place of business of a broker, that is used on a regular basis by the broker, or by an authorized official or salesperson employed by the broker, as an office for the purpose of engaging in trades or transactions; (« succursale »)

"broker" means a person, other than an authorized official or a registered real estate salesman, who, in Manitoba,

(a) for a reward, or hope or promise thereof, negotiates, or attempts or offers to negotiate, for another or others any trade in real estate wherever situated, or

(b) for a reward, or hope or promise thereof, advertises the real estate of others for sale, lease or other disposition by any method of advertising, or

(c) subject to section 41, sells or leases, or attempts or offers to sell or lease, otherwise than through a registered broker, any real estate, wherever situated, or any estate or interest therein, or

(d) for a reward, or hope or promise thereof, acts as an agent to manage property or collect rents, or

(e) holds himself out as doing any of the things mentioned in clauses (a) to (d); (« courtier »)

"change or amendment of registration" includes any change in the register by reason of any change in the members in a partnership or firm, or in the authorized officials of any registered broker or any change of address of any registered broker or salesman; (« changement ou modification d'inscription »)

"commission" means the Manitoba Securities Commission; (« Commission »)

"corporation" means a body corporate, whether with or without capital stock, and includes a company, a society and an association; (« corporation »)

"deputy registrar" means the person appointed by the commission to act as deputy registrar; (« sous-registraire »)

"exclusive listing" means an agreement in writing between a broker and a vendor of real estate, under which the broker has the exclusive right to negotiate a sale or lease of the real estate described therein; (« mandat exclusif »)

"employer" means

(a) when used in reference to an authorized official, a broker in whose certificate of registration the authorized official is named, and

(b) when used in reference to a salesman, the broker in whose employ the salesman is recorded in the register; (« employeur »)

"fraud", "fraudulent", and "fraudulent act", in addition to their ordinary meaning, include, in connection with a trade or transaction in real estate,

(a) any intentional misrepresentation by word, conduct or manner of a material fact, present or past, and an intentional omission to disclose such a material fact,

(b) a promise or representation as to the future that is beyond reasonable expectation and that is not made in good faith,

(c) the failure, within a reasonable time, to account properly for, or pay over to the person entitled thereto, any moneys received,

(d) the failure on the part of a registered broker or salesman to disclose to all parties concerned therein his true relationship to them, that is to say, whether he is acting as an agent or principal, and, when acting as a broker or salesman for a broker, the failure to disclose accurately, to persons entitled to know, the price asked by the vendor of the real estate,

(e) any course of conduct or business calculated or put forward with intent to deceive the public or the purchaser or the vendor as to the value of any real estate,

(f) the making of any false statement of a material fact in any application, information, material or evidence submitted or given to the commission, its representative or the registrar under this Act,

(g) the failure on the part of a broker or salesman to disclose to a vendor of any real estate for whom he acts directly or indirectly any offer to purchase the real estate, received by the broker or salesman,

(h) the gaining of or the attempt to gain, a commission, fee or gross profit, so large and so exorbitant as to be unconscionable and unreasonable, and

(i) generally, any artifice, agreement, device, scheme, course of conduct or business, to obtain money, profit, or property, by any of the means hereinbefore set forth or otherwise contrary to law, or by wrongful or dishonest dealing; (« fraude », « frauduleux », ou « acte frauduleux »)

"fund" means the Real Estate Reimbursement Fund established under section 39.1; (« fonds »)

"listing agreement" means any agreement or arrangement, whether written or oral, authorizing a person, for a reward or hope or promise thereof, to negotiate a sale, lease or other disposition of real estate; (« entente immobilière »)

"money" means all coins, bullion, government or bank notes, cheques, drafts, post office and express and bank money orders, and all negotiable instruments in which a bank can or does deal; (« argent »)

"office money" means money received by and for the benefit and use of a broker whether before or after services have been rendered; (« rétribution »)

"official" means, as the case may require,

(a) an individual who is the president, vice-president, secretary or treasurer of a broker, or

(b) an individual who is the managing director, general manager or department manager of a broker responsible, directly or indirectly, for real estate transactions or trades of the broker in Manitoba, or

(c) an individual who is the manager of an office of a broker in Manitoba, or

(d) an individual acting in a capacity similar to that of any of the foregoing, although not so designated, or

(d.1) in the case of an individual registered as a broker, the individual, or

(e) in the case of a partnership, an individual who is a partner therein, or

(f) in the case of a limited partnership, a general partner therein who is an individual or, where the general partner is not an individual, an individual acting for the general partner in a capacity similar to that of any of the individuals mentioned in clauses (a), (b) and (c) whether or not so designated; (« représentant »)

"person" includes an individual, and a corporation, firm, partnership, association and syndicate, and any unincorporated organization; (« personne »)

"real estate" means

(a) real property, and

(b) leasehold; (« biens immeubles »)

"real estate salesman" or "salesman" or "salesperson" means an individual, other than an authorized official, who is employed or engaged by a broker (whether registered or not) to take part on behalf of the broker in any of the activities mentioned in the definition of broker; (« vendeur immobilier »)

"register" means the record maintained by the registrar for the purpose of recording all registrations, renewals, changes or amendments of registrations, suspensions, cancellations and reinstatements of registrations, made under this Act or the regulations; (« registre du courtage immobilier »)

"registered" means registered under this Act; (« inscrit »)

"registrant" means any person registered under this Act; (« personne inscrite »)

"registrar" means the person appointed by the Lieutenant Governor in Council to act as registrar under this Act and the regulations, and includes the deputy registrar; (« registraire »)

"regulations" means regulations made under this Act; (« règlements »)

"sale" includes exchange, and "to sell" includes to exchange; (« vente »)

"surety" means an assurance or bonding company authorized to carry on business in Manitoba; (« compagnie d'assurance spécialisée dans les cautionnements »)

"temporary registration" means a registration granted for a period not exceeding 90 days; (« inscription temporaire »)

"trade" as a noun means, except in Part VI, any sale, purchase, lease or other acquisition or disposition for value of real estate or any estate or interest therein, whether completed or only attempted and "trade" as a verb has a corresponding meaning; (« commerce », « opération commerciale »)

"transaction", "transaction in real estate" or "real estate transaction" means

(a) the negotiation for another or others of any trade in real estate wherever situated, or

(b) any advertising by a broker, authorized official or salesman, whether of real estate for sale or lease or for real estate to purchase or take on lease, or

(c) the showing of real estate for sale or lease to potential purchasers or tenants, or

(d) the collection by a broker, authorized official or salesman of rent, mortgage payments or instalments of purchase money payable under a lease, mortgage or agreement for sale of real estate, except real estate of which he is himself the owner, mortgagee or vendor, as the case may be, or

(e) the solicitation or obtaining of a listing agreement,

and includes any conduct, act or negotiation, directly or indirectly, in the furtherance or attempted furtherance of any one or more of the things mentioned in this clause; (« transaction », « transaction de biens immeubles » et « transaction immobilière »)

"trust money" means all moneys received by a broker other than office money, and, without limiting the generality of the foregoing, includes money that belongs to a client in whole or in part or is to be held on his behalf or to his or another's order or direction; (« sommes en fiducie »)

"trust records" means the books and records of a broker in which are or ought to be recorded receipts and disbursements of trust money and all relevant data respecting the circumstances in which, the purposes for which, and the grounds on which, the money is received or disbursed. (« registres des dépots »)

S.M. 1988-89, c. 13, s. 37; S.M. 1989-90, c. 90, s. 37; S.M. 1989-90, c. 22, s. 2; S.M. 1994, c. 12, s. 2; S.M. 2002, c. 47, s. 30.

PART I

REGISTRATION

Registration

2           The registrar may, and when directed by the commission shall, grant registration or temporary registration or any renewal thereof under this Act to brokers and salesmen.

Application

3(1)        An applicant for registration or temporary registration under this Act shall apply upon forms supplied by the registrar and shall submit with the application the fee prescribed by the regulations.

Address for service

3(2)        Every applicant shall state in the application an address for service in Manitoba; and a notice under this Act or the regulations shall for all purposes be conclusively deemed to have been served if posted by registered mail addressed to the applicant at the address for service so stated.

Further information

3(3)        The registrar may, and when directed by the commission shall, require or order further information or material to be submitted within a specified time by an applicant or registrant, and may require verification by affidavit or otherwise of any matter then or previously submitted; and, except where an application is withdrawn, the applicant or registrant shall comply with the requirement or order.

Trades and transactions by authorized official and others on behalf of broker

3(4)        Subject to subsection (5), a person that is registered or applying for registration as a broker may appoint any of the person's officials to be recorded in the register and named in the certificate of registration as an authorized official, and any individual so recorded and named may engage in trades and transactions on behalf of the person without being separately registered under this Act, but any other individual who engages in trades or transactions on behalf of the person shall be registered as a salesperson.

Qualifications of authorized officials

3(5)        No individual shall be recorded in the register or named in a certificate of registration as an authorized official unless the individual is eligible to be registered as a broker.

Authorized officials required

3(6)        The registrar shall refuse registration to, and may suspend the registration of,

(a) any company or partnership that does not have at least one authorized official; or

(b) any broker that does not have an authorized official in charge of each of the broker's offices in Manitoba at or from which it engages in trades or transactions.

Branch office to be registered

3(7)        No broker shall operate a branch office unless the office is registered under this Act.

Registration of branch office

3(8)        A broker may register a branch office by providing the registrar with the address of the office and the name of the authorized official in charge of the office, and paying any fee prescribed by regulation.

Authorized official in charge of one office only

3(9)        A broker shall not appoint an authorized official to be in charge of more than one office.

Broker to designate Manitoba representative

3(10)       Where a broker appoints more than one authorized official under subsection (4), the broker shall ensure that at all times one of them is designated by the broker as the broker's Manitoba representative for the purpose of this Act and shall, immediately after making or changing the designation, give the registrar written notice of the name of the designated individual.

S.M. 1994, c. 12, s. 3.

Broker registration requirements

4(1)        Subject to subsection (2), no registration shall be granted to a person as a broker, unless that person has filed with the registrar

(a) a surety bond of indefinite duration in the amount and form prescribed by the regulations; or

(b) subject to section 39.1, a valid certificate of membership in The Manitoba Real Estate Association Inc., issued by the association, in a form and containing information prescribed by the commission.

Additional bonding requirements

4(2)        The Commission may, at any time, where it is satisfied that it is in the public interest, take either or both of the following actions:

(a) Increase the required amount of any surety bond to be filed and maintained by a broker or specified class or classes of brokers.

(b) Require a broker of a specified class or classes of brokers to carry, for the duration of the period of registration, professional liability insurance, fidelity bonding for employees or such other insurance or bonding as the commission prescribes.

Change of partnership

4(3)        Where a broker registered under this Act is a partnership and any change occurs in the membership thereof, the broker shall forthwith file with the registrar, a new surety bond with the appropriate changes and the registrar may suspend the broker's registration until the new bond has been filed but this subsection does not apply in the case of a change in the membership of the limited partners of a limited partnership.

Cancellation of broker's bond

4(4)        When a surety bond filed by a broker under this Act has been cancelled, the registration of the broker is automatically suspended, and remains so suspended and shall not be renewed until he has filed with the registrar a new surety bond as required under this Act.

Registrar may refuse renewal

4(5)        If, at the time a registration expires

(a) the registrar has received notice of intention to cancel the surety bond filed by the broker; or

(b) the registrar has determined that the surety bond previously filed by the broker does not comply with the regulations hereunder;

the registrar may refuse to renew the registration of the broker until a surety bond complying with this Act and the regulations has been filed.

Collateral guarantee to be disclosed by bonding company

4(6)        Where an assurance or bonding company issuing a bond takes any collateral guarantee in support of the bond, the assurance or bonding company, unless otherwise directed by the commission, shall disclose to the commission the details of any such guarantee.

Non-application of subsection (1)

4(7)        Subject to subsection (2), subsection (1) does not apply to a bank or trust company.

S.M. 1989-90, c. 22, s. 3.

Application of The Business Names Registration Act

5           Where the applicant for registration is a firm or partnership within the meaning of The Partnership Act, a registration or any change or amendment of registration or renewal of registration, shall not be granted unless

(a) the applicant; or

(b) any change in the membership of the applicant, as the case may be;

is registered under The Business Names Registration Act and the applicant files with the registrar proof of the registration by the applicant.

Application for change of registration

6           Where a change occurs

(a) in the membership or authorized officials of a registrant; or

(b) in the address for service of a registrant or partner or authorized official or salesman thereof;

the registrant shall immediately apply in writing to the registrar for a change or amendment of the registration.

Written examinations

7(1)        The commission may at any time require a registrant or applicant for registration or temporary registration or renewal of registration, as a broker, authorized official or salesman to sit and pass a written examination set by the commission or the registrar or by any other person selected by the commission for the purpose, in such subjects as the commission may decide.

Different examination

7(2)        The examination that a broker or authorized official may be required to pass may differ from the examination that a salesman may be required to pass.

Examination where applicant is partnership or company

7(3)        Where the registrant or applicant for registration is a partnership or company, the commission may require the members or officers and directors thereof, as the case may be, to sit and pass the examination set under subsection (1) or (2).

Discretion of commission as to examination

7(4)        The commission may, in its absolute discretion, exempt certain persons or certain classes of persons from writing the examination required under this Act.

Conduct of examinations

7(5)        The commission may appoint a person for the purpose of conducting examinations under this Act, and shall stipulate the remuneration to be paid to the person.

Filing of examination

7(6)        A person appointed under subsection (5) shall, immediately following the completion of the examination conducted by him, file the examination with the registrar.

Course of instruction

7(7)        The commission may, at any time, require a registrant or applicant for registration or for temporary registration or renewal of registration as a broker, authorized official or salesman, to take and pass a course prescribed by the commission in real estate and subjects related thereto, and may make such arrangements as may be expedient for the provision of such courses.

Experience requirement

7(8)        The commission may, in its absolute discretion, prescribe the previous experience in real estate transactions that a person or any of a class of persons is required to possess in order to be eligible for registration as a broker or an authorized official.

Refusal of registration

7(9)        The registrar may, and when directed by the commission shall, refuse to grant registration or temporary registration or renewal of registration to a broker or an authorized official who fails to satisfy a requirement imposed by the commission under this section.

Issuing certificate of registration

8(1)        Subject as herein provided, where the registrar is satisfied that an applicant is suitable for registration and the proposed registration is not objectionable, he shall register the applicant by entering in the appropriate place in the register, the name of the applicant and his address for service in Manitoba; and, he shall issue a certificate of registration to the applicant, signed by him.

Refusal of registration for certain reasons

8(2)        A proposed registration is objectionable if the applicant proposes to use, or is using, a trade name other than his own, or that of his partner, if that trade name is apt to mislead the public as to the identity of the applicant, or is for any other reason affecting the public interest, considered objectionable.

Refusal of registration

8(3)        The registrar shall not refuse to grant or refuse to renew a registration without giving the applicant an opportunity to be heard.

Notice of refusal

8(4)        Notice of the refusal of an application shall be given to the applicant by the registrar forthwith upon the event.

Inspection of register

8(5)        The register is open to inspection by any person without charge at all reasonable times.

Review by commission

9           Section 29 of The Securities Act applies to this Act and to the registrar and for that purpose each reference in that section to the director shall be construed as a reference to the registrar.

S.M. 1988-89, c. 13, s. 37; S.M. 1994, c. 12, s. 4.

Applicant may re-apply

10          An applicant whose application has been refused or rejected may re-apply to the registrar for registration if

(a) he has new or additional material in support of his application; or

(b) he shows that circumstances have changed materially since his last application.

Suspension and cancellation

11(1)       The commission for cause may, by order, suspend for any stated term, or until a condition has been met, any registration under this Act, and after notice and hearing cancel the registration if in the opinion of the commission it is in the public interest to do so.

Automatic suspension of salesman's registration

11(2)       When any registered broker ceases to be registered or his registration is suspended, the registration of every salesman in his employ is automatically suspended and shall remain suspended until either

(a) his employer again becomes registered or his employer's registration, if suspended, is reinstated, as the case may be; or

(b) his registration is transferred to a new employer.

Recording of suspension

11(3)       Every suspension or cancellation shall be recorded in the register by the registrar at once; and thereupon or upon such date as the order of the commission may provide, the suspension or cancellation shall become effective.

Effect of suspension on registration

11(4)       A registration that is suspended continues to exist but, while it remains suspended, is inoperative and confers no rights or privileges and, for all purposes connected with any trade or transaction in real estate or with any other activity mentioned in the definition of broker in section 1, a registrant whose registration is suspended shall be deemed not to be registered.

Renewal of registration

12(1)       Every registrant who wishes to renew his registration shall, not later than 30 days before the date on which his registration will expire, make application to the registrar in writing for renewal of his registration, furnishing such information as the registrar may require in connection therewith.

Change in registration

12(2)       A broker registered under this Act shall immediately notify the registrar in writing of any change that takes place

(a) in the membership or officials of the partnership or in the directors or officials of the company, as the case may be; or

(b) in the residential address of the broker, if an individual, or of a member or authorized official of the broker, if a partnership, or of an authorized official of the broker, if a company, as the case may be, or of a salesman registered in the employ of the broker; or

(c) in any material particular as disclosed in the last application for registration or renewal thereof filed with the registrar.

Reason for termination of appointment of authorized official

12(3)       When a broker notifies the registrar pursuant to clause 12(2)(a) of a change in the authorized officials of the broker which involves the termination of the appointment of any authorized official, the notice shall include the reason for the termination of his appointment.

Effect of termination of employment on salesman's registration

13(1)       Upon the termination of the employment of a registered salesman by a broker, the registration of the salesman is automatically suspended and shall remain suspended until his registration is transferred under section 14 to another broker or until he is re-employed by the first mentioned broker.

Notification of termination to registrar

13(2)       Every registered broker shall notify the registrar in writing immediately any salesman in his employ ceases to be so employed, and the notice shall state

(a) the date on which the salesman ceased to be so employed; and

(b) the reason for the termination of employment.

Transfer of salesman to new employer

14(1)       A broker wishing to employ a salesman formerly employed by another broker and holding a registration which is suspended under subsection 13(1) shall apply in writing to the registrar for the transfer to him of the salesman's registration, and the registrar, if he is satisfied that the transfer is not objectionable, shall approve the transfer and record it in the register.

Refusal of approval by registrar

14(2)       Subsections 8(3) and (4) apply with such modifications as the circumstances require to an application for transfer of registration.

Reasons for termination of former employment may be required

14(3)       If the registrar receives an application for a transfer of registration before he has received written notice of the termination of employment from the salesman's former employer, the registrar may withhold approval of the transfer until he obtains such information as he deems appropriate in respect to the date of and the reason for the termination of the employment; but he is not bound to await receipt of the notice from the former employer.

Former employer not excused from giving notice

14(4)       The approval by the registrar of a transfer of registration under this section before receipt by him of the notice from the former employer of the salesman required under subsection 13(2) does not excuse the former employer from giving that notice.

Dealing by officials and salesmen prohibited

15(1)       Notwithstanding any other provision of this Act, an authorized official or salesman shall not deal in real estate for his own account or on behalf of any one other than his employer.

Dealing defined

15(2)       In this section "to deal in real estate" means to buy real estate with a view to reselling it at a profit but does not include to buy real estate as an investment.

Permitted trading by officials and salesmen

15(3)       Subject to subsection (1), an authorized official or salesman may trade in real estate as a principal or on behalf of a company of which he is a director and may place advertisements for the purpose of effecting any such trade if

(a) any sale or lease, not of a type exempted by subsection 41(1), is made through a registered broker;

(b) he notifies his employer of each proposed trade before entering into it;

(c) his advertisements comply with subsections 44(3) or (4) and are approved in advance by his employer;

(d) as soon as the trade is completed, he reports it in writing to his employer, specifying the nature and date of the trade, the names of the parties and identity of the property and verifying that he has made to the other party or parties whatever disclosure may, in the circumstances, be required under section 19; and

(e) he provides any further information that his employer may reasonably require to satisfy himself that the disclosure required under section 19 has been made.

Prohibition of other trading by officials and salesmen

15(4)       Except as permitted under subsection (3), and except for a transaction exempted under clause 41(1)(h), an authorized official or a salesman shall not engage in real estate transactions or trade in real estate for his own account or on behalf of any one other than his employer.

Report to employer

15(5)       Every authorized official and salesman shall report to his employer every transaction or trade effected or made by him on behalf of his employer as soon as he enters into it, and the employer shall record it in his books.

Officials and salesmen to be paid by employer only

15(6)       No authorized official or salesman shall collect or attempt or be entitled to collect any remuneration or reward in respect of a transaction in real estate from any person other than his employer.

Conditional registration

16          The registrar may, and when so directed by the commission shall, include as a part of any certificate of registration under this Act, such reasonable terms, conditions or restrictions, as may be deemed necessary, and the commission may vary, add to, or revoke any such terms, conditions and restrictions.

Expiry of registration

17(1)       Subject to subsection (2), unless previously cancelled, every registration under this Act, except a temporary registration, expires at the end of one year from its commencement, but may be renewed for a further year upon application made under subsection 12(1).

Extension of registration

17(2)       In order to spread the issuing of renewals of registration over the calendar year, the registrar may, on the direction of the commission, extend the duration of a registration for any period not exceeding four months.

18          Repealed.

S.M. 1994, c. 12, s. 5.

PART II

REGULATION OF BROKERS AND SALESMEN

Definition

19(1)       In this section "associate" when used to refer to an associate of a broker, means

(a) if the broker is a partnership, any partner therein;

(b) if the broker is a corporation, any director or officer of, or person who has a material interest in, the corporation;

(c) any authorized official or salesman of the broker;

(d) the spouse of the broker or of any individual included in clause (a), (b) or (c); and

(e) any corporation, firm, partnership, association, syndicate or other unincorporated organization in which the broker or any person included in clauses (a) to (d), inclusive, has a material interest;

and, for the purposes of this section,

(f) a person has a material interest in a corporation if he holds not less than 5%, in market value, of its capital stock; and

(g) a person has a material interest in a firm, partnership, association, syndicate, or other unincorporated organization if he holds not less than 5% of its capital or is entitled to receive not less than 5% of its profits.

Purchase by broker, etc., of property listed

19(2)       Where any real estate which is listed with a broker for sale, or any interest therein, is purchased by that broker or by an associate of that broker or by any nominee for that broker or for any associate of that broker, the vendor is not liable to pay any commission on the sale.

Purchase by selling broker, etc., on co-operative listing

19(3)       Where any real estate is listed with a broker for sale under any system or arrangement whereby another broker who obtained an acceptable offer would be entitled to receive a share of the commission, if any such other broker, or any associate of any such other broker, or any nominee for any such other broker or associate thereof, purchases the real estate or any interest therein

(a) that other broker is not entitled to receive any share of the commission; and

(b) the commission that would otherwise be payable by the vendor shall be reduced by the amount that would normally be payable under that system or arrangement to the broker who obtained the offer.

Disclosure required

19(4)       Where any broker or associate of a broker, or any nominee for a broker or for an associate of a broker, makes or offers to make a purchase to which subsection (2) or (3) applies, the broker or the associate, as the case may be, shall disclose to the vendor or owner in writing

(a) the identity of the purchaser or the offeror;

(b) the circumstances that make subsection (2) or (3) applicable; and

(c) the fact that no commission, or a reduced commission, as the case may be, is payable;

and the disclosure shall be made, or, if previously made, shall be repeated, in the offer to purchase or other written agreement for the sale of the property.

Commission not payable may be recovered

19(5)       If the disclosure required by subsection (4) is duly made, and the vendor, after the completion of the sale, voluntarily pays any commission which he is not liable to pay, he cannot thereafter recover it; but in any other case a vendor who has paid any commission for which he is not liable under subsection (2), or has paid a commission of a larger amount than is payable under subsection (3), shall be entitled to recover that commission or the excess, as the case may be, whether the required disclosure has been made or not.

Consequences of non-disclosure

19(6)       Where subsection (2) or (3) applies, if disclosure is not made as and when required under subsection (4),

(a) the vendor may rescind the sale within 30 days after he becomes aware of the circumstances that make subsection (2) or (3) applicable, and, if the purchaser has parted with title to the real estate, or is otherwise unable to restore it to the vendor, may recover from the purchaser any loss he thereby suffers; and

(b) if the vendor rescinds the sale under this subsection, and the case falls within subsection (3), the vendor is not liable to pay, and may recover if he has already paid, the share of commission otherwise payable to the broker with whom the real estate was listed, unless that broker can establish that neither he nor any of his authorized officials or salesmen knew, or ought reasonably to have suspected, the existence of the circumstances that made subsection (3) applicable.

Broker not to submit contravening offer

19(7)       No broker, authorized official or salesman shall submit to a vendor or owner, or forward or transmit for submission to a vendor or owner, an offer or agreement to purchase which contravenes subsection (4) unless he is unaware that it contravenes subsection (4).

"Sale" to include "lease"

19(8)       In subsections (2) to (7),

"purchase" includes taking on lease; (« achat »)

"purchaser" includes a tenant; (« acheteur »)

"sale" includes lease; (« vente ») and

"vendor" includes a landlord. (« vendeur »)

Disclosure of interest by broker, etc., on sale

19(9)       No broker shall show to a prospective purchaser or otherwise solicit an offer to purchase any real estate owned by him or by his associate without disclosing that it is so owned, and no authorized official or salesman shall show to a prospective purchaser or otherwise solicit an offer to purchase any real estate owned by the broker by whom he is recorded in the register to be employed, or by an associate of that broker, without disclosing that it is so owned.

Consequences of non-disclosure

19(10)      Where subsection (9) applies, a purchaser to whom disclosure required under subsection (9) has not been made may rescind his purchase within 30 days after he becomes aware of the circumstances that make subsection (9) applicable.

Exceptions

19(11)      Subsections (9) and (10) do not apply to new buildings, whether completed, under construction, or to be constructed, which are being marketed by the builder himself or by his usual sales agent, if the name of the builder and of the sales agent, if any, is disclosed in advertisements thereof.

Indemnity on rescission

19(12)      On the rescission of any sale, lease or purchase under this section, the party rescinding is entitled to be indemnified by the other party thereto against any obligations which he has incurred under the sale, lease or purchase so rescinded.

Disclosure by all registrants when purchasing

19(13)      No broker, authorized official or salesman shall purchase or offer to purchase any real estate whatsoever without disclosing in the offer or agreement that he is a broker, authorized official or salesman, but it is sufficient disclosure to describe himself by any words which fairly convey that he is engaged in the real estate business.

Exclusive listing to be in duplicate, etc.

20          Two or more copies of each exclusive listing shall be completed and executed, and shall clearly show

(a) the date on which it was executed;

(b) the date on which it expires;

and an executed copy thereof, immediately upon execution shall be furnished by the broker, salesman or authorized official to the person granting the listing.

Offer to purchase to be in writing

21(1)       Every offer to purchase real estate, obtained by a broker, salesman or authorized official, shall be in writing, completed in not less than quadruplicate if there is only one broker involved in the transaction, and otherwise in not less than quintuplicate, executed by the offeror in the presence of a witness, and the broker, salesman or authorized official as the case may be shall deliver the duplicate copy thereof immediately upon execution to the offeror.

Acceptance of offer to purchase to be in writing

21(2)       Where a broker, authorized official or salesman presents an offer to purchase real estate to a vendor for his acceptance and the vendor accepts the offer, the broker, authorized official or salesman, as the case may be, shall obtain the acceptance in writing signed by the vendor and duly witnessed, in not less than duplicate, leave one copy thereof with the vendor and immediately notify the purchaser of the acceptance by delivering a copy of the acceptance to the purchaser.

Use of printed form

21(3)       Every offer obtained by a broker, authorized official or salesman to purchase real estate consisting of a single family residential house or a single family residential unit in a condominium shall be on a printed form as prescribed by the regulations and shall have appended thereto a printed form of acceptance as prescribed by the regulations.

Exception

21(4)       Subsection (3) does not apply

(a) where the offer is prepared for use in respect of the trade in respect of which it is used, by a solicitor entitled to practise in the Province of Manitoba and acting on behalf of the offerer or the offeree; or

(b) where the offer is an offer to purchase real estate from Canada Mortgage and Housing Corporation; or

(c) where the offer includes an offer respecting the construction of a building on the real estate in respect of which the offer is made and provides that the deposit, if any, shall be paid either to a registered real estate broker or to a member of the Law Society of Manitoba entitled to practise as a solicitor in the province; or

(d) where the offer is an offer to purchase real estate on which a building is under construction and provides that the deposit, if any, shall be paid either to a registered real estate broker or to a member of the Law Society of Manitoba entitled to practise as a solicitor in the province.

S.M. 1988-89, c. 13, s. 37.

Contents of offer to purchase

22(1)       Every offer under section 21 shall, before execution by either a vendor or a purchaser, clearly show the following particulars:

(a) the date on which the offer is made;

(b) the names and addresses of the offerer and offeree;

(c) the street address or legal description of the real estate concerned;

(d) the price offered by the offerer and the terms and conditions of the purchase;

(e) the amount of deposit, if any, made by the offerer at the time of the offer and whether or not the deposit is to form part of the purchase price;

(f) any promise, undertaking or guarantee made or given by the broker, authorized official or salesman that he will

(i) arrange for the offerer the resale of the real estate that he is offering to purchase, or

(ii) purchase or obtain a purchaser for any real estate owned by the offerer, or

(iii) procure or arrange a mortgage or an extension or renewal of a mortgage or lease for the offerer, or

(iv) purchase or obtain a purchaser for a mortgage or in any other way obtain a loan for the offerer;

(g) a brief description and list of any chattels that are to be included in the sale price;

(h) the date of possession by the offerer and whether possession shall be vacant or otherwise;

(i) the date of adjustments;

(j) the date by which the offer must be accepted by the offeree;

(k) the name of the broker by whom, or by whose authorized official or salesman, the offer was obtained.

Accepted offer to show commission payable

22(2)       Where an offer to purchase real estate submitted through a broker, authorized official or salesman, is accepted by the offeree the acceptance shall show

(a) the date of the acceptance; and

(b) the total amount of commission, if any, to be paid to the broker, by the offeree, stated either as a lump sum or as a percentage of the sale price.

Non-compliance to invalidate offer and acceptance

23          Non-compliance with section 22 does not of itself render an offer to purchase real estate and the acceptance thereof invalid; but where the non-compliance is by a broker, authorized official or salesman, as the case may be, acting in bad faith, he thereby forfeits his right to any commission which might otherwise be payable to him.

Employment of unregistered salesman prohibited

24(1)       No broker shall retain in his employ as a salesman a person who is not duly registered as such under this Act, or directly or indirectly, pay to any person a commission, salary or other remuneration in connection with a trade or transaction in real estate unless that person is duly registered as a salesman in the employ of the broker concerned or is an authorized official of that broker.

Where subsec. (1) not applicable

24(2)       Subsection (1) does not apply

(a) to office staff or persons engaged in clerical, accounting or caretaking duties in the employ of the broker, and not otherwise engaged in the transaction of real estate business; or

(b) to the division of commissions among brokers duly registered under this Act, or under an Act of any province of Canada; or

(c) to the payment of a commission, salary or other remuneration in connection with a trade or transaction in real estate to a broker engaged in brokerage activity under the laws of a jurisdiction outside of Canada, if the broker is not in violation of any applicable law of Manitoba.

Moneys to be turned over to broker

25          Every authorized official and every salesman registered under this Act shall immediately, upon receipt, pay over to his employer all moneys he receives in connection with any transaction in real estate or otherwise on his employer's behalf.

Trust money and trust accounts

26(1)       Every broker shall maintain in a bank an account designated as a trust account and shall deposit in the account any trust money received in connection with a trade or transaction, and shall at all times keep trust money separate and apart from other money and shall disburse trust money only in accordance with the terms upon which it is received.

Interest on trust money

26(1.1)     Subject to subsection (1.4), all trust moneys received by a broker from or for any person in respect of a transaction or trade in real estate shall be deposited in an interest-bearing bank account kept by the broker.

Broker as trustee to remit to commission

26(1.2)     A broker making a deposit pursuant to subsection (1.1) is deemed to hold any interest earnings resulting therefrom as trustee for the commission and the broker shall direct the bank to remit such earnings, less charges pertaining directly to the calculation and remittance of the interest, to the commission at such times and in such manner as the commission may direct.

Broker need not account

26(1.3)     A broker is not required to account to any person other than the commission for interest remitted to the commission under subsection (1.2).

Exemption

26(1.4)     Notwithstanding subsection (1.1), trust money received by a broker from or for any person in respect of a transaction or trade in real estate may be deposited in an interest-bearing account separate from any other account kept by the broker or be invested in a term plan or a guaranteed term plan of a bank, where the broker has written instructions to do so from all persons having an interest in the money at the time of the deposit or the investment.

Broker as trustee

26(1.5)     A broker acting under subsection (1.4) is deemed to hold the money and the interest earned thereon as trustee for the persons on whose behalf the money is held and the broker shall account to such persons.

Standard of Care

26(1.6)     A broker acting under subsection (1.4) shall exercise the judgment and care that a person of prudence, discretion and intelligence would exercise in administering the property of others and receipt of the written instructions mentioned in subsection (1.4) does not relieve the broker of the duty to exercise such judgment and care.

Use of interest

26(1.7)     Interest received by the commission under subsection (1.2) shall be held by the commission in an interest-bearing account and may be used in such proportions as the commission may determine

(a) repealed, S.M. 1997, c. 52, s. 17;

(b) to provide funding for educational programs relating to the real estate industry and the objectives of the Act;

(c) to provide funding for not-for-profit initiatives to promote affordable home ownership and area revitalization; and

(d) to provide funding for other programs that the commission may authorize in furtherance of the objectives of the Act.

Consolidated Revenue Fund

26(1.8)     The balance, if any, remaining in the account established by the commission pursuant to subsection (1.7), after the expenditures made pursuant to the subsection, shall be paid into the Consolidated Revenue Fund on March 31 each year.

Existing programs

26(1.9)     For the purposes of subsection (1.8), the commission may withhold the balance in the account, or a portion thereof, as may be required to meet the future costs of existing programs commissioned or undertaken under subsection (1.7) as of March 31 each year.

Inspection of books, etc

26(2)       The registrar or any other person nominated by the commission for the purpose, may, at any time, inspect or examine the books, records, vouchers, cash, documents and accounts including the trust accounts of any broker.

Access to books, etc.

26(3)       For the purpose of subsection (2) the registrar or any other person nominated by the commission shall be granted free access to all books, accounts, correspondence, documents, records, and bank accounts and any other records of a broker concerning real estate transactions and trades.

Refusal to produce books, etc.

26(4)       Any person who refuses, withholds, conceals, falsifies or refuses to produce any document, book, record or any other matter or thing mentioned in subsection (3) is guilty of an offence and is liable, upon summary conviction, to the penalties prescribed under section 42.

Definition of "bank"

26(5)       In this section "bank" includes a trust company or credit union.

Freezing of trust account if broker loses registration

26(6)       When the registration of a person who is registered as a broker expires or is cancelled or suspended, the commission may, in writing or by telegram, direct any bank at which the person maintains a trust account to hold the balance then standing to the credit of that account, and any funds subsequently deposited in it, in accordance with subsection (7), and the failure without reasonable excuse by a bank to comply with any such direction constitutes an offence.

Effect of freezing

26(7)       When a direction has been given under subsection (6) with respect to an account of any person

(a) while the direction remains in force, no withdrawal shall be made from the account without the written consent of the registrar or of some other person named for the purpose by the commission in the direction;

(b) the direction remains in force until

(i) the registration of that person as a broker has been renewed or reinstated and the registrar has notified the bank in writing that the direction is thereby terminated, or

(ii) the commission revokes the direction, or

(iii) the commission makes an order under subsection (11); and

(c) subsection 35(2) applies to the direction as if it were a direction given under subsection 35(1).

Revocation of freezing

26(8)       The commission may revoke a direction under subsection (6) at any time and shall do so when it is satisfied that the balance remaining in the account is no longer subject to any trust and that there are no remaining uncompleted trades or transactions which will require trust money to be deposited in it.

Payment of trust money to commission

26(9)       Where a broker holds trust money in a trust account for a period of at least two years and

(a) where two or more persons have an interest in the money and have failed to agree as to its disposition and no action has been commenced in court to resolve the matter;

(b) the person or persons having an interest in the money have failed to submit a claim or give instructions to the broker for payment of the trust money;

(c) the person or persons having an interest in the money cannot be located by the broker; or

(d) the person or persons entitled to the money have not cashed the broker's cheque in payment of the money for a period of at least one year since the day the cheque was issued by the broker;

and the person or persons entitled to the money have not given written authorization for the broker to continue holding the money in trust, the broker may apply to the commission for permission to pay the money to the commission and the commission may direct that the money remain in the broker's trust account or be paid to the commission.

Commission may require particulars

26(10)      Where an application is made by a broker under subsection (9), the commission may require the broker to furnish such information and documents as it requires to make a determination.

Commission may order bank to pay over trust money

26(11)      Where the commission has given a direction to a bank under subsection (6), the commission may order the bank to pay all or part of the money in the trust account to the commission if the commission has reasonable grounds to believe that

(a) the broker cannot be located;

(b) in the case of a broker who is not an individual, the broker is bankrupt or no longer exists; or

(c) in the case of a broker who is an individual, the broker is deceased.

Commission to hold money in account

26(12)     Money received by the commission under subsection (9) or (11) shall be held in an interest-bearing account in the name of the commission.

Annual payment to Consolidated Fund

26(13)      On March 31 of each year, any money in the account established by the commission under subsection (12), less any amount that the commission considers could be required within one year for the purpose of a payment under subsection (14), shall be paid into the Consolidated Fund.

Refund of trust money

26(14)      Where a person establishes to the satisfaction of the commission that the person is entitled to money paid into the account referred to in subsection (12) or into the Consolidated Fund under subsection (13), the commission or the Minister of Finance shall pay the money to the person out of the account into which the money was last paid, without interest.

R.S.M. 1987 Supp., c. 27, s. 1; S.M. 1994, c. 12, s. 6; S.M. 1996, c. 5, s. 2; S.M. 1997, c. 52, s. 17.

Broker to hold deposits as trustee and not as agent

27(1)       Subject to subsection (2), a broker who receives a deposit on any trade in real estate shall hold it as a trustee on behalf of all the parties to the trade in accordance with their respective rights under the offer or contract, and not as agent for any one of them, and shall have the responsibility to pay or account for it to the proper party and, in the event of any dispute between the parties in respect of the deposit, may pay the deposit into court on an interpleader.

Exception

27(2)       Notwithstanding subsection (1), a broker may receive a deposit as agent for one party to a trade in real estate under an offer or contract which so provides if the offer or contract has been prepared or approved for use in that trade by a solicitor entitled to practise in the province who is acting on behalf of the other party or parties.

27(3)       Repealed, R.S.M. 1987 Supp., c. 27, s. 2.

R.S.M. 1987 Supp., c. 27, s. 2; S.M. 1994, c. 12, s. 7.

Records to be kept by broker for five years

28(1)       Unless otherwise provided by this Act, every broker shall retain in his office, the following matters, for a period of not less than five years:

(a) one copy of each offer to purchase real estate obtained by him, his authorized official or a salesman registered in his employ;

(b) a record showing in respect of each transaction or trade

(i) the date thereof,

(ii) the street address or legal description of the property concerned,

(iii) the names and addresses of the vendor and purchaser,

(iv) the sale price, and

(v) the amount and manner of computation of the commission received by the broker.

Books and records to be open for examination by the registrar

28(2)       All records and books of account required to be kept by a broker under this Act shall be open to examination at all times by the registrar or any other person appointed by the commission for the purpose.

Inducement by broker etc., prohibited

29(1)       No broker, authorized official or salesman shall, as an inducement to procure a trade or transaction in real estate, make or give any promise, undertaking or guarantee that he will

(a) arrange a resale of any real estate for a person who offers to purchase it; or

(b) purchase, or obtain a purchaser for, any real estate; or

(c) procure or arrange a mortgage, or an extension or renewal of a mortgage or lease; or

(d) purchase, or obtain a purchaser for, a mortgage, or in any other way obtain a loan for any person;

unless the promise, undertaking or guarantee is made or given in writing, signed by the broker, authorized official or salesman, and delivered to the person induced, or intended to be induced, thereby.

Failure to comply with subsec. (1) not to affect other rights

29(2)       Nothing in subsection (1) affects the right of a person to whom a verbal promise, undertaking or guarantee has been made or given to enforce the same.

No commission where another broker holds exclusive listing

30(1)       Where a broker, authorized official or salesman negotiates a trade in real estate which he knows is listed with another broker under an unexpired exclusive listing agreement, neither he nor his employer is, unless otherwise agreed to in writing by the vendor, entitled to a commission or other remuneration from the vendor.

Inducement of breach of contract prohibited

30(2)       No broker, authorized official or salesman shall, directly or indirectly, induce any person to break or procure a breach of any contract for sale, purchase, rental or lease or other contract concerning real estate.

Listing agreements

31(1)       Where any person enters into a written listing agreement with a broker, a signed copy thereof shall be delivered at the time of execution to that person by the broker, or by the authorized official or salesman of the broker who obtained it, as the case may be.

Invalidity

31(2)       Every agreement under subsection (1)

(a) which does not contain an expiry date therein, or a method of terminating the agreement; or

(b) which contains more than one expiry date; or

(c) a true copy whereof has not been delivered as provided under subsection (1);

is invalid.

Amount of commission

32(1)       Any commission or remuneration payable to a broker in respect of the negotiation of a sale or lease of real estate shall be an agreed sum or a sum based on a percentage of the sale price or rental value of the real estate.

No commission payable on difference between list and actual sale price

32(2)       No broker, authorized official or salesman shall

(a) request or demand from any person, or enter into any arrangement with any person, for the payment of a commission or remuneration based on the difference between the price at which the real estate concerned was listed with the broker for sale or otherwise and the actual sale price thereof; or

(b) retain any commission or remuneration computed in a manner described in clause (a).

PART III

INVESTIGATION AND ACTION

Power to investigate

33          The commission of its own motion may, and upon complaint in writing shall, inquire into, hear, and determine, any matter or thing within its jurisdiction arising out of this Act; and in particular it may make, or authorize the making, of an inquiry to ascertain whether any fraudulent act or any offence against this Act or the regulations has been, is being, or is about to be, committed.

Costs of an investigation

34(1)       Where the conduct of a registrant or authorized official has been the subject of an investigation under this Part and, as a result of the information obtained in the investigation,

(a) the registrant or authorized official is convicted of any offence created by this Act or of an offence under the Criminal Code (Canada) in connection with a trade or transaction in real estate; or

(b) the registrant's registration is suspended or cancelled or the name of the authorized official has been deleted from the register; or

(c) the commission is satisfied that the registrant or authorized official has not adequately discharged his responsibilities to the commission, his customers or the public;

the commission may order the registrant or authorized official to pay the whole or part of the costs of the investigation and of any hearing convened as a result thereof, calculated on the basis of the fees prescribed under The Securities Act.

Recovery of costs

34(2)       Any costs ordered to be paid by a registrant or authorized official under this section are recoverable by the commission as a debt in court, and the commission may suspend the registration of the registrant, or of the employer of the authorized official, until the costs are paid.

Freezing of funds

35(1)       Where

(a) criminal proceedings in connection with, or arising out of, any trade or transaction in real estate or proceedings in respect of an offence created by this Act are about to be, or have been, instituted against any person; or

(b) it appears to the commission, either at the time it decides to make, or to authorize the making of, an inquiry under section 33 or during the course of or upon the completion of any such inquiry, that any person

(i) has committed, or is committing, or is about to commit, a fraudulent act or any offence created by this Act, or

(ii) has received any money under circumstances that involve a contravention of section 26,

the commission may, in writing or by telegram, direct any bank, or trust or loan company or any other person having in Manitoba on deposit, or under control, or in safekeeping, any funds or securities of, or moneys owing to, that person to hold those funds, securities or moneys until the commission in writing revokes the direction or consents to release any particular fund, security or sum from the direction; and failure without reasonable excuse to comply with any direction constitutes an offence but, unless the direction expressly so states, the direction shall not apply to funds or securities in a stock exchange clearing house or to securities in process of transfer by a transfer agent and, in the case of a bank, loan company or trust company, the direction shall only apply to the offices, branches, or agencies thereof named in the direction.

Application for directions

35(2)       Any person in respect of a direction given under subsection (1), if in doubt as to the application of the direction in respect of any funds, securities or moneys, or in case of a claim being made thereto by any person not named in the direction, may apply to a judge of the Court of Queen's Bench who may direct the disposition of the funds, securities or moneys and may make such order as to costs as may seem just.

Filing of certificate in L.T.O.

35(3)       In any of the circumstances mentioned in subsection (1), the commission may make and file in the office of any land titles district in which is situated land belonging to a person referred to in clause (1)(a) or (1)(b), a certificate stating that proceedings which might affect the land belonging to the person referred to in the certificate are being or are about to be taken.

Effect of certificate

35(4)       A certificate filed under subsection (3)

(a) binds the interest of the person referred to therein (other than an interest as mortgagee) in all lands which are not exempt from proceedings under a certificate of judgment situate in the land titles district in the Land Titles Office in which the certificate has been filed, whether or not the lands are under The Real Property Act, in the same manner as a certificate of attachment registered pursuant to the Queen's Bench Rules;

(b) may be revoked or modified by the commission at any time; and

(c) unless it is sooner revoked, expires after two years from the date of filing.

Setting aside direction or certificate

35(5)       Upon the application of any person interested, the Court of Queen's Bench may set aside a direction given under subsection (1) or order that a certificate filed under subsection (3) be vacated

(a) in a case referred to in clause (1)(a), if no proceedings have been instituted either before or within a reasonable time after the giving of the direction or filing of the certificate, or if the proceedings instituted have been dismissed; or

(b) in a case referred to in clause (1)(b), if the judge is satisfied that the circumstances described in sub-clauses (1)(b)(i) and (ii) did not in fact exist either when the direction was given or a certificate filed, or at any subsequent time.

Failure to give information, etc.

36          The failure without reasonable excuse of any person to furnish information required by the registrar under Part I, or required by the commission or any other person appointed by the commission under this Act, or the failure without reasonable excuse of any person summoned for examination under this Act to appear, or his refusal to give evidence, or to answer any question, or the failure without reasonable excuse or refusal of any person to produce anything where the evidence, answer, or production would be required in an action, is an offence and is also admissible in evidence as prima facie proof upon which

(a) the commission or its authorized representative may make an affirmative finding concerning a fraudulent act to which the commission or its representative may deem it relevant; or

(b) a justice may convict for an offence against this Act or the regulations.

S.M. 2005, c. 8, s. 12.

Acting upon finding fraud

37          Where the commission or its authorized representative, upon investigation, finds that any fraudulent act, or any offence against this Act or the regulations, has been, is being, or is about to be, committed, the commission may,

(a) if a registered broker or an authorized official or salesman thereof is, in its opinion, concerned, order the registration of that broker, or official, or salesman, to be suspended for a period not exceeding 30 days or, after notice and hearing, cancelled; or

(b) give public notice of the fraudulent act by advertisement or otherwise or advice to any person by letter or otherwise.

Evidence

38          Any information, evidence, exhibit, or thing, obtained by the commission or its authorized representative or the registrar under this Act or the regulations, or copies thereof, or statement that a person or company is or is not registered, or other data concerning registration, certified by the registrar without proof of his office or signature is, so far as relevant, receivable in evidence for all purposes in any action, proceedings or prosecution.

Forfeiture of bond

39(1)       A bond filed with the registrar under section 4 is forfeited and the sum named therein is due and owing by every person bound thereby as a debt to Her Majesty in right of Manitoba if there has been filed with the registrar an order of the commission that a person in respect of whose conduct the bond is conditioned, or any authorized official, employee or salesman of such person, in connection with a trade or transaction in real estate, has been

(a) found upon investigation by the commission or its representative to have committed a fraudulent act; or

(b) convicted of an offence under the Criminal Code (Canada) or of an offence created by this Act; or

(c) a party to civil proceedings in a court as a result of which final judgment, based upon a finding of fraud, has been given against the person, authorized official, employee or salesman.

Forfeiture upon bankruptcy or winding-up proceedings

39(2)       A bond filed with the registrar under section 4 is forfeited, and the sum named therein is due and owing by every person bound thereby as a debt to Her Majesty in right of Manitoba if there has been filed with the registrar an order of the commission that a person in respect of whose conduct the bond is conditioned is a bankrupt as defined in the Bankruptcy Act (Canada) or has made a proposal under that Act or, in the case of a corporation, that a winding-up order has been made against it.

Assignment of bond or payment of moneys to creditors

39(3)       The commission may, by order, assign the proceeds of any bond forfeited under subsection (1) or (2) or may pay over the moneys recovered thereunder to any person, or into the Court of Queen's Bench in trust for such persons and companies as may become judgment creditors of the person or company bonded, or to any trustee, custodian, interim receiver, receiver, or liquidator, of the person or company, as the case may be; and the assignment or payment over shall be in accordance with, and upon conditions set forth in, the regulations, or in any order of the Lieutenant Governor in Council.

Establishment of Reimbursement Fund

39.1(1)     The Manitoba Real Estate Association Inc. may establish a fund to be known as the Real Estate Reimbursement Fund.

Payment out of fund - fraud or conviction

39.1(2)     Where, in connection with a trade or transaction in real estate, a broker registered on the basis of membership in the association, or an authorized official, employee or salesperson of such a broker,

(a) is found, upon investigation by the commission or the commission's representative, to have committed a fraudulent act; or

(b) is a party to civil proceedings in a court resulting in final judgment, based upon a finding of fraud, being given against the broker, authorized official, employee or salesperson; or

(c) is convicted of an offence under the Criminal Code (Canada) or this Act;

the commission may order the association to pay out of the fund such amount to such person or the commission as the order may require, and the association shall comply with the order forthwith.

Payment out of fund - bankruptcy

39.1(3)     Where a broker registered on the basis of membership in the association, or an authorized official, employee or salesperson of such a broker,

(a) has become a bankrupt as defined in the Bankruptcy Act (Canada), or has made a proposal under that Act; or

(b) in the case of a corporation, has had a winding-up order made against it;

the commission may order the association to pay out of the fund such amount to such person or the commission as the order may require, and the association shall comply with the order forthwith.

Association is subrogated

39.1(4)     The association is subrogated to the rights and remedies to which any person or the commission receiving payment out of the fund under subsection (2) or (3) would have been entitled as against the affected broker, authorized official, employee or salesperson, and the association may pursue those rights and remedies in its own name, and any amount so recovered by the association shall be credited to the fund.

S.M. 1989-90, c. 22, s. 4.

PART IV

OFFENCES AND PENALTIES

Registration

40(1)       Except where permitted by this Act, no person shall act as a broker or salesman or otherwise engage in any transaction in real estate unless such person is duly registered under this Act.

Additional penalty

40(2)       No person who is required to be, and is not, registered as a broker, authorized official, or salesman under this Act shall collect, or attempt or be entitled to collect, commission, compensation, or other remuneration, for any act or expenditure in respect of a transaction in real estate.

Exemptions

41(1)       Section 40 and subsection 44(1) do not apply

(a) to an isolated trade in real estate by or on behalf of a person who is the owner or a potential purchaser or tenant thereof and for that person's account, or to any transaction involved in that trade, where the trade is not made in the course of continued and successive trades of a like nature and no commission or other remuneration is paid or agreed to be paid in respect of any transaction involved in it other than to an auctioneer for the performance of the services mentioned in clause (j); or

(b) to any liquidator, receiver, trustee in bankruptcy, or other person similarly acting under any statute or by order of a court; or

(c) to a trustee acting under the terms of any will, marriage settlement, or deed of trust, or to an administrator of the estate of a deceased person; or

(d) to a bank, loan company, trust company, credit union or insurance company dealing in real estate which it owns or administers; or

(e) to any person acting for Her Majesty or an agency of the Crown or a municipality or a local government district or a corporation having power of expropriation; or

(f) to the leasing of real estate by the owner thereof if no commission or other remuneration, other than salaries of officers and employees, is paid by the owner to any person in respect thereof; or

(g) to any showing of real estate by the owner or his representatives to a potential purchaser or tenant introduced by a registered broker acting for the owner or for the potential purchaser or tenant; or

(h) to the management of property or the collection of rents

(i) by a company for its subsidiary, or

(ii) by a company for its parent company or any other subsidiary of its parent company, or

(iii) by a company for an individual who has voting control of it or for a group of individuals who all own voting shares in it and together have voting control of it, or

(iv) by any director, officer or servant of the owner; or

(i) to any person selling subdivision or building lots or other bare land of which he is, and has been for at least one year, the owner, or one of the owners, if

(i) the form of offer or contract used by him is prepared for use in the sale of that real estate by a solicitor entitled to practise in the province,

(ii) all deposits and other money that is required to be held in trust are paid to and held by a solicitor entitled to practise in the province, and

(iii) all negotiations with purchasers are conducted by the owner himself, or by an employee of the owner, or if the owner is a corporation an officer of the corporation or by the owner's solicitor, and no such person is remunerated for these negotiations on a commission basis; or

(j) to the performance by an auctioneer of his duties as such at an auction sale.

Exemption for solicitors

41(2)       This Act, except Part VI, and section 1 and subsection 42(5) so far as they relate to Part VI and the regulations pertaining to Part VI, does not apply to a member of The Law Society of Manitoba entitled to practise as a solicitor in the province where a transaction is made or a trade negotiated on behalf of a client in the course of, and as a part of, his practice.

Exemption for mineral interest brokers

41(3)       This Act does not apply to a person who is registered as a mineral interest broker under The Securities Act where a transaction in respect of which he acts is

(a) the purchase or acquisition on his own behalf of; or

(b) the negotiation, on behalf of another person, of the purchase or acquisition of; or

(c) a trade in;

a mineral interest as that expression is defined in The Securities Act.

Conflicts with The Securities Act

41(4)       When an interest in real estate is also a security as defined in The Securities Act, the following rules shall apply for the purpose of resolving any conflict or duplication between that Act and this Act:

(a) if interests in real estate are being distributed to the public under a prospectus duly filed with the commission under The Securities Act by persons duly registered under that Act, this Act does not apply to any trade or transaction involved in that distribution;

(b) if application is made to the commission under The Securities Act for an order that would permit interests in real estate to be distributed to the public without a prospectus, or by persons who are not registered under that Act, or both, the commission may exempt that distribution and those persons from all or any of the provisions of this Act;

(c) if a prospectus is accepted by the registrar under Part VI of this Act, the interests offered under it are exempt from The Securities Act;

(d) in any trade or proposed trade which does not require a prospectus under either Act, the vendor may, unless the commission has otherwise ordered, elect either to treat the interest as an interest in real estate and comply with this Act, in which case The Securities Act does not apply, or to treat it as a security and comply with The Securities Act, in which case this Act does not apply;

(e) the commission may declare any such interest to be exclusively a security, in which case this Act does not apply to it, or to be exclusively an interest in real estate, in which case The Securities Act does not apply to it.

R.S.M. 1987 Corr.; .S.M. 1988-89, c. 13, s. 37.

False statements made to commission, etc.

42(1)       Any person who, in any application, information, material or evidence submitted or given under this Act or the regulations to the commission, its representatives or the registrar or to any person appointed under this Act to make an inquiry, makes a false statement which is not punishable under the Criminal Code (Canada) is guilty of an offence.

False statement defined

42(2)       In this section "false statement" means a statement which, at the time, and in the light of the circumstances under which it was made, is false or misleading with respect to any material fact or that omits to state any material fact, the omission of which makes the statement false or misleading.

General offences

42(3)       Any person who violates any provision of this Act or of the regulations or who, in connection with any transaction or trade in real estate, commits any fraudulent act not punishable under the Criminal Code (Canada) or who fails to observe or comply with any order or direction of the commission made under this Act or the regulations, is guilty of an offence.

Offences by corporations

42(4)       Where a corporation is guilty of an offence created by this Act, every director or officer of the corporation who authorized, permitted or acquiesced in the offence is guilty of an offence.

Penalties

42(5)       In addition to any other penalties under this Act, every person who is guilty of an offence created by this Act is liable, on summary conviction, to a fine of not less than $100. and not more, for a first offence, than $2,000. and not more, for a second or subsequent offence, than $4,000.; and in case of either a first, second or subsequent offence, either in default of payment of any fine imposed or in addition to such a fine, is liable to imprisonment for a term not exceeding six months.

Application of subsection (5)

42(6)       Subsection (5) applies, with such modifications as the circumstances require, to any corporation save that the money penalties may be increased to a sum not exceeding $10,000.

Violation of The Mortgage Brokers Act

42(7)       A registrant who violates any provision of The Mortgage Brokers Act or of the regulations made thereunder shall be deemed to have violated the provisions of this Act and to have committed a fraud under this Act.

S.M. 2009, c. 16, s. 23.

PART V

GENERAL PROVISIONS

No action, etc., against persons administering Act

43          No action lies, or shall be instituted, against any person whether in his public or private capacity, or against any company in respect of any act or omission in connection with the administration or carrying out of this Act or the regulations, if that person is the Attorney-General or his representative, the commission or a member thereof, or its authorized representative, or the registrar, or if the person or company was proceeding under the written or oral direction or consent of any of them, or under an order of a judge made under this Act.

Advertising real estate by unregistered person prohibited

44(1)       Except as otherwise permitted by this Act no person shall, through any medium, directly or indirectly, advertise or cause to be advertised, in any manner, in Manitoba, any real estate for sale, lease or other disposition, unless that person is duly registered under this Act or the advertisement has first been approved by the registrar.

Disclosure by broker

44(2)       Every broker shall, when advertising for the purchase, sale, or lease of any real estate clearly indicate in the advertisement that he is a broker; and compliance with this subsection may be made by inserting in the advertisement, the word "broker".

Disclosure by authorized official

44(3)       No advertisement for the purchase, sale or lease of real estate shall contain the name of an authorized official unless

(a) the advertisement also contains the name of his employer and indicates, in a manner sufficient to comply with subsection (2), that the employer is a broker; or

(b) the advertisement clearly indicates that the authorized official is a representative of a broker which may be done by inserting in the advertisement the word "broker".

Disclosure by salesman

44(4)       No advertisement for the purchase, sale or lease of real estate shall contain the name of a registered salesman unless

(a) the advertisement also contains the name of his employer and indicates, in a manner sufficient to comply with subsection (2), that the employer is a broker; or

(b) the advertisement clearly indicates that the salesman is employed by a broker, which may be done by inserting in the advertisement the word "salesman".

Salesman not to be described as broker

44(5)       A registered salesman shall not be described in any advertisement as a broker.

Registration not to be advertised

45         No registrant shall print or advertise in a pamphlet, advertisement, letter, business card or telegram, or on stationery or in any other way, the fact that the registrant is registered under this Act.

S.M. 1994, c. 12, s. 8.

Complaint within two years

46          Where an offence is committed under this Act or the regulations, a complaint shall be made or information laid within two years from the time when the offence was committed.

Exemptions by commission

47          The commission may, by order, subject to such terms and conditions as it may impose, exempt any person from any or all of the provisions of this Act or the regulations, where it is satisfied

(a) that compliance with the provision or provisions would cause undue hardship or would not advance the purposes of this Act; and

(b) that the exemption would not be contrary to the public interest.

Costs

48          The costs of administering this Act shall be paid out of the Consolidated Fund with moneys appropriated by an Act of the Legislature to be so paid and applied.

Regulations

49          For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation or order made pursuant to, and in accordance with, the authority granted by this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations and orders,

(a) for the prevention of fraud in connection with transactions in real estate;

(b) for the disposition of moneys paid or payable to Her Majesty under a bond that is forfeited under section 39, and that are not assigned or paid by the commission under subsection 39(3);

(c) prescribing the conditions under which moneys to which clause (b) refers may be assigned or paid over by the commission;

(d) respecting the use of and prescribing printed forms of offers to purchase real estate and acceptances obtained by a broker, salesman, or authorized official;

(e) prescribing the form of prospectuses and the forms of other documents to be used in connection with transactions in real estate which is located outside Manitoba;

(f) prescribing the types of records, accounts and books of account to be kept by brokers, salesmen or authorized officials;

(g) prescribing the amount, form and terms and conditions of any surety bond to be furnished under this Act;

(h) respecting the remittance of interest earnings;

(i) respecting the establishment of an advisory body authorized to make recommendations to the commission on the disposition of the interest earnings received pursuant to subsection 26(1.2);

(j) respecting the establishment and maintenance of, the payment of claims from, and administrative guidelines for, the fund;

(k) respecting fees payable under this Act.

R.S.M. 1987 Supp., c. 27, s. 3; S.M. 1988-89, c. 11, s. 20; S.M. 1989-90, c. 22, s. 5; S.M. 1994, c. 12, s. 9.

PART VI

REGULATION OF TRADING IN SUBDIVISION LOTS LOCATED OUTSIDE MANITOBA

Definitions

50          In this Part,

"subdivision" means improved or unimproved land divided or proposed to be divided into five or more lots or other units for the purpose of sale or lease and includes land divided or proposed to be divided into condominium units; (« subdivision »), and

"trade" means to sell or let real estate or to endeavour by negotiation, promotion, advertising or other means to bring about or further a sale or lease of or to stimulate interest in any real estate which is, or is to be, available to purchase or rent. (« faire le commerce »)

Prospectus required for subdivision outside Manitoba

51(1)       Subject to section 61, no person shall, in any capacity, trade in any real estate which is or comprises, one or more lots or units in a subdivision outside Manitoba, unless

(a) a prospectus relating thereto containing the information prescribed by the regulations has been filed with the registrar; and

(b) a certificate of acceptance of the prospectus has been granted by the registrar and is still in force.

Certain representations prohibited

51(2)       No person shall make any representation, written or oral, that the registrar or the commission has passed upon the financial standing, fitness or conduct of any person in connection with any prospectus required to be filed under subsection (1) or upon the merits of any such prospectus.

Right of rescission

51(3)       Any contract for the sale or lease of a lot or unit of land in a subdivision located outside Manitoba made in contravention of this section may be rescinded by the purchaser or tenant at any time before taking possession thereof unless he has been given a clear statement in writing of his right to rescind the contract and has thereafter unequivocally affirmed it.

Other rights preserved

51(4)       The right of rescission provided in this section is in addition to any other rights that the purchaser or tenant may have in respect of the contract.

Prospectus to be delivered

52(1)       No person shall, either as a vendor, or as a broker, authorized official or salesman, enter into or negotiate any contract for the sale or lease of a lot or unit of land in a subdivision located outside Manitoba unless,

(a) a copy of the prospectus referred to in section 51 or such shorter form of the prospectus as the registrar may have approved for distribution to the public has been delivered to the prospective purchaser or tenant, as the case may be;

(b) the prospective purchaser or tenant has in writing acknowledged receipt of a copy of the prospectus or the shorter form of the prospectus and that he has been afforded the opportunity to read it; and

(c) he is registered as a broker or the contract is negotiated by a registered broker or by an authorized official or salesman of a registered broker acting in the course of his employment as such.

Acknowledgment to be retained

52(2)       Every acknowledgment referred to in subsection (1) shall be retained by the vendor or by the broker involved and be available for inspection by the registrar for a period of not less than five years.

When purchaser entitled to rescission

52(3)       A purchaser or tenant who has entered into a contract where subsection (1) applies is entitled to rescission of the contract if,

(a) subsection (1) has not been complied with; and

(b) written notice of exercising the right of rescission is served on the vendor or broker within 90 days of the signing of the contract.

Onus of proof

52(4)       In an action for rescission under subsection (3), the onus of proving compliance with subsection (1) rests upon the vendor.

Other rights preserved

52(5)       The right of rescission provided in this section is in addition to any other rights that the purchaser or tenant may have in respect of the contract.

Disclosure required in prospectus

53(1)       A prospectus shall contain full, true and plain disclosure of all material facts relating to the land offered thereby which are relevant to its value to a person proposing to use it for any purpose indicated or suggested by the prospectus.

By whom prospectus to be filed

53(2)       A prospectus shall be filed by or on behalf of the owner of the subdivision to which it relates.

Material in support of prospectus

53(3)       Each prospectus filed with the registrar shall be accompanied by

(a) an affidavit of the owner of the subdivision or, where the owner is a corporation, of all or any three of the directors thereof, verifying that every matter of fact stated in the prospectus is correct and that the prospectus contains all the information known to the owner which is required by subsection (1);

(b) a copy of every plan referred to in the prospectus;

(c) a copy of every form of contract referred to in the prospectus;

(d) such documents as the registrar may require to support any statement of fact, proposal or estimate set out in the prospectus;

(e) such financial particulars of the owner as the registrar may require;

(f) a statement of the name of the registered broker or brokers with whom the land is or is to be listed for sale or lease in Manitoba and a copy of every listing agreement or other contract between the owner and such broker or brokers; and

(g) the fees prescribed by the regulations.

Further requirements

53(4)       Where a prospectus is filed with the registrar

(a) the owner of the subdivision shall file with the registrar a surety bond in such amount and in such form and subject to such terms and conditions as the commission may require, issued by an assurance or bonding company authorized to carry on business in Manitoba, and the provisions of sections 4 and 39 shall apply, with such modifications as the circumstances require, to any such bond as if the owner were a registered broker;

(b) the owner of the subdivision shall, in the prospectus, designate an address for service, and a notice under this Act or the regulations shall for all purposes be conclusively deemed to have been served if posted by registered mail addressed to the owner at his last address for service so designated; and

(c) the owner of the subdivision shall submit any further information or material that may from time to time be required by the registrar, and, if so required by the registrar, shall furnish verification by affidavit or otherwise of any matter then or previously submitted.

Non-resident owner

53(5)       Where a prospectus is filed by or on behalf of an owner who is not resident in Manitoba,

(a) the owner shall, before the certificate of acceptance is granted, file with the registrar a duly executed power of attorney under seal in a form acceptable to the registrar empowering the person therein named, who shall be a resident of Manitoba, to act as his attorney for the purpose of accepting service of any process or being served therewith in any suit or proceedings against the owner within the province, and of receiving all lawful notices, and declaring that service of process in respect of such suits and proceedings and of such notices on the attorney are legal and binding on the owner;

(b) an owner may revoke a power of attorney by filing with the registrar a new power of attorney nominating a new attorney resident in Manitoba in place of the former one, but, except with the prior consent in writing of the registrar, an owner may not revoke a power of attorney filed under this subsection in any other way, and any purported revocation thereof not permitted by this subsection is null and void; and

(c) every form of contract for the sale or lease of lots in the subdivision used in Manitoba shall contain a provision whereby the parties submit to the jurisdiction of the courts of Manitoba and agree that the courts of Manitoba shall have jurisdiction to entertain any action that may be brought on that contract.

Conditions precedent to grant of certificate

54          The registrar shall not grant a certificate of acceptance where it appears that,

(a) the prospectus contains any statement, promise or forecast that is misleading, false or deceptive, or has the effect of concealing material facts; or

(b) adequate provision has not been made for the protection of deposits or other funds of purchasers or for assurance of title or other interest contracted for; or

(c) the prospectus fails to comply in any substantial respect with any of the requirements prescribed; or

(d) the requirements of section 53 have not been complied with in any substantial respect; or

(e) the proposed methods of offering do not accord with standard real estate practices in Manitoba.

Inquiries, etc.

55(1)       The registrar may make such inquiries in respect of a prospectus as he considers necessary, including,

(a) an examination of the subdivision and any of the surrounding circumstances; and

(b) the obtaining of reports from public authorities or others within or outside Manitoba.

Costs

55(2)       The reasonable and proper costs of such inquiries or reports shall be borne by the owner by whom, or on whose behalf, the prospectus was filed.

Powers of registrar

56          The registrar shall grant the certificate of acceptance in respect of a prospectus where the requirements of this Act and the regulations have been complied with and in his opinion the granting of the certificate is in the public interest; but he shall not refuse to grant a certificate of acceptance without giving the owner of the subdivision an opportunity to be heard.

Time for appeal by non-residents

57          Where an owner resides or, in the case of a corporation, has its head office, outside Manitoba, his time for giving notice of appeal from the registrar to the commission pursuant to section 9 is 60 days from the mailing of the direction, decision, order or ruling of the registrar.

Change in circumstances

58(1)       If a change occurs with regard to any of the matters set out in any prospectus,

(a) that would have the effect of rendering a statement in the prospectus false or misleading; or

(b) that brings into being a fact or proposal that should have been disclosed in the prospectus if the fact or proposal had existed at the time of filing;

the owner of the subdivision shall, within 20 days of the change occurring, notify the registrar in writing of the change and shall file an amendment to the prospectus or a new prospectus as the registrar may direct.

New prospectus annually

58(2)       Where trading in real estate mentioned in section 51 is still continuing 12 months after the date of the certificate of acceptance for the last prospectus filed, a new prospectus shall be filed with the registrar and a certificate of acceptance thereof obtained before the expiration of 20 days from the end of such 12 month period.

Failure to file new prospectus

58(3)       If the certificate of acceptance of a new prospectus has not been obtained before the expiration of the period of 20 days referred to in subsection (2), all trading in the real estate concerned shall cease until a new prospectus has been filed and a certificate of acceptance thereof obtained.

Application of sections 50 to 56

58(4)       Sections 50 to 56 apply with such modifications as the circumstances require where a prospectus is amended or a new prospectus is filed under subsection (1) or (2).

Stop orders

59(1)       Where it appears to the registrar, subsequent to the filing of a prospectus and the granting of a certificate of acceptance therefor, that any of the conditions referred to in section 54 exist or where in his opinion such action is necessary in the public interest, he may, after giving the owner of the subdivision and the broker or brokers named pursuant to sub-clause 53(3)(f) an opportunity to be heard, revoke the certificate of acceptance and order that all trading in the real estate to which the prospectus refers shall cease forthwith.

Temporary order

59(2)       Where the holding of a hearing under subsection (1) would cause a delay which, in the opinion of the registrar, would be prejudicial to the public interest, he may revoke the certificate of acceptance and order that all trading in the real estate to which the prospectus refers shall cease forthwith; but in that case the registrar shall forthwith notify the owner of the subdivision and the broker or brokers named pursuant to sub-clause 53(3)(f) of his order and of the fact that a hearing before the registrar will be conducted on a specified date not more than 15 days after the date of the revocation order.

No appeal from temporary order

59(3)       No appeal lies from a temporary order made by the registrar without a hearing under subsection (2).

Approval of advertisements

60(1)       No person shall within Manitoba use any advertising material for the sale of a lot or unit in a subdivision located outside Manitoba until its use has been authorized by the registrar.

Changes of circumstances

60(2)       If, subsequently to his authorizing the use of any advertising material under subsection (1) the registrar is appraised of facts or a change of circumstances which, in his opinion, render the advertisement inaccurate or potentially misleading, he may revoke his authorization of its use and thereafter no person shall use it.

Exemption of certain trading

61          Sections 50 to 60 do not apply in respect of

(a) a sale of a lot or unit in a subdivision in which the vendor has not, within the previous five years, owned directly or indirectly five or more lots or units;

(b) a lease for not more than one year; or

(c) any sale or lease of Crown land anywhere in Canada which is offered by or on behalf of the Crown.

Power of commission to exempt

62          Notwithstanding sections 51, 52 and 53, where it is satisfied that it is not contrary to the public interest to do so, the commission may, upon application, exempt a proposed vendor either wholly or partially from the requirements of sections 51, 52 and 53, or any of them, upon such conditions as the commission sees fit to impose, where

(a) the circumstances of the proposed transaction are such as to make strict compliance with the Act unduly onerous; or

(b) the prospective parties do not require the protection afforded by this Part; or

(c) a prospectus or other disclosure document satisfactory to the commission and approved by another jurisdiction is available for distribution.

 

 


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