Posted the: 2013-08-22 Numac: 2013011368 SERVICE PUBLIC FÉDÉRAL ÉCONOMIE, P.M.E., CLASSES averages and energy 11 February 2013. -Law organizing the profession of estate agent (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Chapter 1. -Disposition introductory Article 1.
This Act regulates a matter referred to in article 78 of the Constitution.
CHAPTER 2. -Definitions art.
2. for the purposes of this Act, shall mean: 1 ° Minister: the Minister having the Middle Classes in his or her attributions;
2 ° the Council superior: the Board of Governors the self-employed and small and medium-sized enterprises, set up by article 13 of the statutes relating to the Organization of the Middle Classes coordinated may 28, 1979;
3 ° Member State: country to which applies the Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications as amended by Directive 2006/100/EC of the Council of 20 November 2006 adapting certain directives in the field of the free movement of persons, consequent upon the accession of the Bulgaria and the Romania;
4 ° real estate agent: one who carries out one or more activities referred to in 5 °, 6 ° and 7 °.
5 ° intermediate: one who, on behalf of third parties, lends a decisive assistance to achieve a contract of sale, purchase, Exchange, rental or sale of real estate, real estate rights or goodwill;
6 ° trustee: one who is in the administration and conservation of the common parts of buildings or groups of forced condominiums, according to sections 577-2 and following of the civil Code;
7 ° Manager: one who performs on behalf of third party management of immovable property or rights, other than those of trustee;
8 ° the framework: the framework law for the intellectual professions service providers, codified by the royal decree of August 3, 2007;
9 ° the Institute: Professional Institute of Real Estate Agents, created by the royal decree of 6 September 1993.
CHAPTER 3. -The profession of estate agent Section 1st. -For the exercise and protection of the title of estate agent s. 3 it is established, within the Institute, an array of real estate agents and a list of trainees split into two columns, one containing the intermediate real estate agents, the other containing agents real estate Trustees.
Intermediate Realtors, agents real estate trustee and estate agents directors are subject to training requirements and specific controls, whose modalities are determined by the King.
When exercising their activity within a legal person, the intermediate Realtors, agents real estate Trustees and estate agents directors are also subject to requirements in terms of minimum capital, whose modalities are determined by the King.
S. 4. any person physical or person legal entity authorized to exercise the profession of REALTOR in accordance with this Act and which may be liable due to acts she performs on a professional basis or due to the acts of its employees must be covered by insurance.
The King sets the terms and conditions of insurance which should allow an adequate coverage of the risk incurred by the recipient of the services provided by the real estate agent, including:-the minimum ceiling to ensure;
-the extent of the warranty at the time;
-the risks to be covered.
When the real estate profession is exercised by a corporation under this Act, all managers, partners acifs, administrators and members of the Executive Committee are jointly and severally responsible for the payment of insurance premiums.
S. 5 § 1. No person shall practise as a self-employed, title main or accessory, the profession of estate agent intermediate or trustee, or carry the title, if it is registered with the column of the profession exercised Panel holders or in the column of the profession exercised by it in the list of trainees.
No person shall practise as agent real estate manager if he is enrolled in at least one of the two columns of the said table.
§ 2. REALTORS are subject to the following obligations, which the King determines the terms and conditions: 1. a) for natural persons have a degree;
(b) for legal persons meet the conditions referred to in article 10.
2. respect the rules of ethics.
§ 3. The King may exempt the holders of liberal professions of the prohibitions referred to the § 1.
In such cases, orders and institutes in charge of control of the activities of these people integrate into their ethics a component specific to the activities of real estate agents.
People who do that manage their family patrimony or heritage which they are joint owners, or the heritage of the society of which they are shareholders or associated, are not subject to the prohibitions referred to the § 1.
§ 4. Real estate agents and persons referred to in § 3, paragraph 1, must transmit to the Institute on 1 January of each year no later than list of condominiums which they are trustees.
S. 6. no person shall bear a title or add to that under which he is enrolled in the table referred to in article 3, a statement that may cause confusion with the professional title of estate agent intermediate, of agent real estate trustee or agent real estate manager.
S. 7. any natural person registered in one of the columns of the table to real estate agents or the list of trainees is required to use the professional title under which it is listed in the column of the table of REALTORS or the list of trainees in the exercise of his professional activities.
S. 8. for the purposes of this Act, estate agents are suspected, irrevocably, this activity in a self-employed capacity.
Do not meet the obligations referred to in article 5 for practising the profession in the bonds of a contract of employment and those who benefit from this faculty are not allowed to use the professional title.
Section 2. -Freedom to provide services article 9. service providers who move from one Member State to Belgium for the first time in order to practise the profession of estate agent are licensed to practice temporarily and occasionally real estate agent activity, without having to meet the conditions of article 5 if they are legally established in a Member State to exercise the same profession. If the profession of estate agent, or training which gives access to this profession is not regulated in that State, they must have exercised it for at least two years during the ten years preceding their free provision of services.
The temporary and occasional provision of services nature is appreciated on a case by case by the executive board, especially depending on the duration, frequency, periodicity and continuity of the provision of services.
The persons referred to in paragraph 1 must, in the first provision of services or in the event of a material change in the situation established by the documents, send a declaration prior to the Institute, whereby they provide the following: 1 ° proof of nationality;
2 ° a) a certificate showing that they are regularly established in another Member State to exercise the activities concerned, and that at the time of the issuance of this certificate, it only is imposed on them no ban, even a temporary;
(b) or the evidence that for at least two years during the ten years preceding the provision of services in Belgium, they have carried out this activity in that Member State;
(c) or evidence that they have been trained, regulated in the Member State of establishment.
3 ° information about insurance coverage or other means of personal or collective protection concerning professional liability. This statement is renewed once a year if the service provider intends to provide more temporary or occasional services in this State during the year concerned. The claimant can provide this declaration by any means.
Certificates issued by other Member States insurance agencies are accepted as equivalent. These certificates must specify that the insurer has complied with the legal and regulatory requirements in force in Belgium with regard to the modalities and scope of the guarantee. They must not, when their production back to more than 3 months.
Section 3. -Exercise in the context of a legal person article 10 § 1. Corporations may practise the profession of real estate agent if they meet the following conditions: 1 ° all managers, administrators, members of the Committee of management and more generally, independent agents involved in the name and on behalf of the legal person, are natural persons authorized to exercise the profession of REALTOR in accordance with article 5;
2 ° its object and its activity must be limited to the provision of services in the exercise of the profession of estate agent and cannot be inconsistent therewith;
3 ° if it is constituted in the form of a limited liability company or a limited partnership by shares, its actions must be registered;
4 ° at least 60% of the shares or shares so that voting rights must be owned, directly or indirectly, by individuals authorized to practise Realtor in accordance with article 5; all other units or shares may only be held by natural or legal persons reported to the Institute, practising a profession which is not inconsistent;
5 ° the Corporation may hold participations in other companies or legal persons to that exclusively professional character. The purpose and activities of these companies may not be incompatible with the function of real estate agent;
6 ° the legal person is registered in one of the columns of the table to the Institute.
If the Corporation is not listed in the table, administrators, managers or active partners assume full liability of acts performed in the exercise of the profession within the legal person.
The legal person referred to in the preceding paragraph must meet the following conditions: 1 ° its directors, managers or active partners who perform the regulated activity and have the actual direction of the departments in which the activity is exercised, must be entered in the corresponding table column or list.
2 ° the absence of these persons, the obligation referred to in 1 ° applies to a Director or a Manager or an active partner of the legal person designated for this purpose. For the purposes of this Act, such persons are alleged, irrevocably, this activity in a self-employed capacity.
11. If due to the death of a natural person referred to in article 10, § 2, 1 ° or 4 °, the entity no longer meets the requirements for practising the profession of estate agent, has six months to come into compliance with these conditions. During this period, the Corporation may continue to exercise the profession of estate agent.
S. 12. the student cannot constitute a legal person within the meaning of this Act or be associated, Manager, administrator or member of the Executive Committee unless it is a corporation in which he practiced the profession with his master's course or a natural person included in the table of real estate agents.
CHAPTER 4. -Disciplinary Section 1. -Obligations ethical art.
13. the members of the Institute to comply with ethical standards established by the Institute and made mandatory by the King.
These ethical standards determine at least the following obligations on licensees of the profession: 1 ° comply with the duties of loyalty, independence, integrity, diligence and dignity which are at the base of the profession;
2 ° observe a duty of discretion, namely that any information obtained by the professional track should be used within a professional framework, taking into account the right to respect for the privacy of the persons concerned;
3 ° have completed the training organized or recognized by the Institute; account is taken of the column of the table to which the holder is given or the column of the list to which the trainee is taken;
4 ° exercise sufficient supervision over employees who assist holders of the profession in the execution of their profession. Using an ethical standard, the Institute may impose a minimum number of holders approved by headquarters of operation or number of employees;
5 ° immediately inform the client and the Institute of any situation of conflict of interest.
Section 2. -Sanctions disciplinary arts 14 § 1.
Real estate agents, it is proven that they missed on their homework, are liable to one or more of the following disciplinary penalties: a) warning;
§ 2. The suspension consists of prohibition for a fixed term, it cannot exceed two years, the profession regulated in Belgium and to bear the professional title.
Radiation causes the prohibition to exercise a regulated profession in Belgium and to bear the professional title and concerns all the activities listed in article 2, 4 ° to 7 °.
Pursuant to the same decision, a Realtor who is liable for the second time of suspension can be wiped off the table or the list of trainees.
§ 3. When a disciplinary punishment is imposed on a legal person, a disciplinary penalty may also be imposed on the individual or the person authorized to exercise the profession regulated, whose intervention is at the origin of the acts committed by the legal person which leads to disciplinary action.
§ 4. The rooms are competent to adjudicate disciplinary proceedings because of acts committed before the decision which failed real estate agent list, or the table referred to in article 3 If the instruction has been initiated by the legal assessor no later than one year after this decision.
§ 5. The King stops the manner in which these disciplinary penalties may be imposed. It also lays down rules according to which the rehabilitation may be granted.
S. 15. the disciplinary authority may at each time to order the publication complete or partial delivered. It may also require the Member or holder of the profession of additional professional training within a specified time.
16. by way of derogation from article 9, § 4, of the framework law, each executive room, the Minister shall appoint a legal assessor for six years, among the lawyers listed in a table, and one or more legal assessors alternates, including legal assistance missions, training and recommendations laid down by the King.
The Minister may terminate advance the mandate of the legal assessor under the conditions determined by the King.
Without prejudice to the tasks assigned to them by or under this Act, it is forbidden the legal assessors and their alternates, otherwise be stripped of office of their duties by the Minister:-to plead before the Executive Boards and appeal of the Institute and Advisor to the members or candidates members in cases dealt with by these rooms or likely to be.
-to advise a person and plead in favour of it in a dispute with Institute;
-to advise and advocate for the Institute;
-Advisor or advocate members staff or alternates of the executive Chamber and appeal or condominiums including these members would be trustees.
S. 17. any conviction for breach of trust within the meaning of article 491 of the penal Code result in the cancellation of the real estate agent by the Chamber office.
Any prior conviction on the basis of article 491 of the penal Code prevents the exercise of the activity of real estate agent.
In the event of misuse, the House may suspend or de-list the REALTOR.
S. 18. the decisions by which imposed a suspension or a cancellation is sent to the Attorney general.
S. 19. the disciplinary authority may decide that there are reasons to suspend delivery of the disciplinary sanction to charge, within the period determined by it, which may not however exceed five years. The suspension may depend on the completion of a number of conditions, including the requirement to undergo specific training endeans within a specified period. In the event of failure to comply with conditions imposed, disciplinary authority convenes the Member or holder of the profession at a hearing of the disciplinary authority in sight, either pronounce a disciplinary sanction, or to revoke the suspension of the delivery.
The disciplinary authority may impose by reasoned decision to postpone the execution of the disciplinary punishment.
The duration of the stay may not be less than one year and may not exceed five years from the date of the decision. The relief may depend on the completion of a number of conditions, including the obligatory specific training endeans within a specified period. In the event of failure to comply with conditions imposed disciplinary authority convenes the Member or holder of the profession at a hearing of the disciplinary authority in order to pronounce a disciplinary sanction is to revoke the suspension. The relief may also be revoked when a new disciplinary sanction is imposed.
S. 20 § 1. When the facts alleged against a member or licensee of the profession have raised fears that the subsequent exercise of his profession is likely to cause harm to others or to the honour of the Institute, the legal assessor of the executive Chamber can take any precautionary measures that prudence requires, such as the temporary prohibition to practise. These measures may not exceed a duration of three months.
At the request of the legal assessor, the duration of such measures may be extended by award motivated of the executive Chamber, for a period of maximum six months after the person concerned has been heard or convened at least eight days prior to the hearing.
§ 2. The person concerned can make appeal of provisional measures and the extension of the duration of precautionary, enforceable measures by provision, with the Appeals Chamber.
This call is notified within eight days of the notification of the decision of the executive board by registered mail to the Secretary of the Appeals Chamber which shall convene without delay Chamber.
It shall take a decision after the person concerned has been heard or convened at least eight days prior to the hearing.
S. 21. at the express request of the complainant, operative decisions based on its complaint is communicated to him. The Chamber may decide that his request also the reasons for the decision will be communicated to it. The Chamber may decide justified way and on the basis of grounds that the consultation of the disciplinary record will be granted.
The Chamber may decide to reasoned way operative decisions will be communicated to third parties. A unanimous vote, the Chamber may decide justified way and on the basis of grounds that the reasons for the decision will be communicated to third parties or the consultation of the disciplinary file will be given to them.
CHAPTER 5. -Provisions criminal art.
22. without prejudice to the application of the penalties provided by the penal Code, shall be punished by a term of imprisonment from eight days to three months and a fine of 500 euros to 5,000 euros or one of those penalties only: 1 ° those who, without being authorized, is will be awarded publicly the professional title of real estate agent and one who will have carried a title or will be added to that which it bears mention that may cause confusion with the professional title of estate agent;
2 ° who will have practised this profession without being authorized, or without being registered in the table to the holders or the list of trainees;
3 ° that it will be practiced while he was the subject of a measure of suspension.
In addition, the Court may order temporary or definitively, the partial or total closure of the premises used by the person who is guilty of one or more offences referred to above.
Legal persons who exercise the profession of estate agent under this Act is civilly liable for the payment of fines and the enforcement of the compensation to which their bodies and servants were convicted.
S. 23. all provisions of book 1 of the penal Code, including Chapter VII and article 85, shall apply to offences under this Act.
S. 24. without prejudice to the duties of judicial police officers, the staff of the federal police, civil servants and officers of the local police, as well as officials and officers designated for this purpose by the King on the proposal of the Minister, are responsible for search and noted in the minutes the offences under this Act.
These minutes are prima facie evidence to the contrary. They are transmitted without delay to the competent officers of the public prosecutor; a copy in sent to the author of the offence, as well as to the Minister referred to in paragraph 1 within seven working days of the determination of offences, all on pain of nullity.
S. 25. the persons to which the Act applies are required to provide all information and documents necessary to verify the application.
Shall be punished by a prison term of eight to fifteen days and a fine of 500 euros to 5,000 euros or one of those penalties only, who will refuse to provide the information and documents referred to in the preceding paragraph or who oppose controls.
S. 26. the time limits referred to in this Act shall be calculated in accordance with articles 48 to 57 of the Judicial Code.
CHAPTER 6. -Disposition transitional art. 27. the orders for the implementation of the framework law which apply to the Institute and which are not contrary to this Act, continue in force until repealed or replaced by orders made pursuant to this Act.
Promulgate this Act, order that it self under the seal of the State and published by le Moniteur.
Given at Chateauneuf-de-Grasse, February 11, 2013.
ALBERT by the King: the Minister of the Middle Classes, SMEs and the self-employed, Ms. S. LARUELLE sealed with the seal of the State: the Minister of Justice, Ms. A. TURTELBOOM _ Note (1) see: records of the House of representatives: 53-2517-2012-2013: No. 1: Bill.
No. 2: amendments.
No. 3: report.
No. 4: Text adopted by the commission.
No. 5: Text adopted in plenary meeting and transmitted to the Senate.
Full report: January 10, 2013.
The Senate documents: 5-1925-2012-2013: No. 1: project not referred by the Senate.