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11 FEBRUARY 2013. - An Act to Organize the Real Estate Agent Profession (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - Introductory provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - Definitions
Art. 2. For the purposes of this Act, it shall be understood by:
1st Minister: Minister with the Average Class in his or her duties;
2° the Conseil Supérieur : the Conseil Supérieur des Indépendants et des Petites et Moyennes Entreprises, established by article 13 of the laws relating to the organization of the Average Classes, coordinated on 28 May 1979;
3° Member State: country to which Directive 2005/36/EC of the European Parliament and Council of 7 September 2005 on recognition of professional qualifications as amended by Council Directive 2006/100/EC of 20 November 2006 on the adaptation of certain guidelines in the field of free movement of persons, due to the accession of Bulgaria and Romania;
4° real estate agent: the one who carries one or more activities mentioned in 5°, 6° and 7°;
5° intermediate: the person who, on behalf of third parties, lends decisive assistance to carry out a contract for the sale, purchase, exchange, lease or disposal of real property, real property rights or trade funds;
6° syndic: the one that acts within the framework of the administration and conservation of common parts of buildings or groups of buildings in forced condominium, according to articles 577-2 et seq. of the Civil Code;
7° governs: the person who performs real property or real estate activities on behalf of third parties, other than those of the trustee;
8° the Framework Law: the Framework Law on Intellectual Professions Service Providers, codified by the Royal Decree of 3 August 2007;
9° the Institute: the Professional Institute of Real Estate Agents, created by the Royal Decree of 6 September 1993.
CHAPTER 3. - The real estate agent profession
Section 1^re. - Exercise and protection of real estate agent title
Art. 3. It is established, within the Institute, a table of real estate agents and a list of interns split into two columns, one re-entering the intermediate real estate agents, the other re-entering the union real estate agents.
Intermediate real estate agents, trade union real estate agents and real estate agents are subject to training obligations and special controls, the terms of which are determined by the King.
When they operate within a legal entity, intermediate real estate agents, trade union real estate agents and real estate agents are also subject to minimum capital requirements, the terms of which are determined by the King.
Art. 4. Any natural person or legal person authorized to practise the real estate agent profession in accordance with this Act and whose liability may be incurred as a result of the acts that it performs in a professional capacity or because of the acts of its employees shall be covered by insurance.
The King sets out the terms and conditions of insurance that must allow adequate coverage of the risk incurred by the recipient of the services presetsed by the real estate agent, including:
- the minimum ceiling to be guaranteed;
- the extent of the warranty in time;
- the risks that must be covered.
When the real estate agent profession is exercised by a legal entity in accordance with this Act, all managers, acifs associates, administrators and members of the management committee are jointly responsible for the payment of insurance premiums.
Art. 5. § 1^er. No one may exercise as an independent, principal or an accessory, the occupation of an intermediate real estate agent or trustee, or bear the title thereof, if he is not registered in the column of the profession that he exercises from the table of the holders or in the column of the profession that he exercises from the list of interns.
No person may exercise as a governing real estate agent if he or she is registered at least one of the two columns of that table.
§ 2. Real estate agents are subject to the following obligations, the King determines the terms and conditions:
1. (a) for natural persons who hold a degree;
(b) for legal persons to meet the requirements of Article 10.
2. Respect the rules of ethics.
§ 3. The King may exempt the holders of liberal professions from the prohibitions referred to in § 1^er.
In such cases, the Orders and Institutes responsible for the control of the activities of these persons incorporate in their ethics a specific component of the activities of real estate agents.
Persons who only manage their family heritage, or the property of which they are co-owners, or the heritage of the society of which they are shareholders or associates, are not subject to the prohibitions referred to in § 1^er.
§ 4. Real estate agents and persons referred to in § 3, paragraph 1^er, must transmit to the Institute on 1^er January of each year no later than the list of condominiums of which they are the trustees.
Art. 6. No person may bear a title or add to the one under which he is listed in the table referred to in section 3, a statement that may be confusing with the professional title of intermediate real estate agent, trustee real estate agent or registrar real estate agent.
Art. 7. Any natural person registered in one of the columns in the Real Estate Agents table or the list of trainees is required to carry, in the course of its professional activities, the professional title under which it is listed in the column of the Real Property Officers table or the list of trainees.
Art. 8. For the purposes of this Act, real estate agents are presumed to operate independently.
The obligations referred to in Article 5 must not be met to practise the profession in the bonds of a labour contract and persons who benefit from that faculty are not allowed to carry the professional title.
Section 2. - Free service delivery
Art. 9. Service providers who move from a Member State to Belgium for the first time in order to practise the real estate agent profession are allowed to temporarily and occasionally exercise the activity of a real estate agent, without having to meet the requirements of Article 5 if they are legally established in a Member State to practise the same occupation. If the real estate agent profession, or the training that gives access to this profession, is not regulated in this State, they must have exercised it for at least two years in the ten years preceding their free service delivery. The temporary and occasional nature of service delivery is assessed on a case-by-case basis by the Executive Chamber, including the duration, frequency, periodicity and continuity of service delivery.
Persons referred to in paragraph 1^er must, at the first service delivery or in the event of material change in the situation established by the documents, forward a pre-report to the Institute, by which they provide the following:
1° proof of nationality;
2° (a) an attestation from which it appears that they are regularly established in another Member State to carry out the activities concerned, and that at the time of issuance of the certificate, they are not subject to any occupational prohibition, even temporary;
(b) or evidence that for at least two years in the ten years preceding this service in Belgium, they have carried out this activity in that Member State;
(c) or evidence that they have followed regulated training in the Member State of Institution.
3° information relating to insurance coverage or other means of personal or collective protection regarding professional liability. This declaration is renewed once a year if the service provider intends to provide services in a temporary or occasional manner in that Member State during the year concerned. The provider may provide this statement by any means.
Certificates issued by insurance organizations of other Member States are accepted as equivalent. These certificates must state that the insurer has complied with the legal and regulatory requirements in force in Belgium with respect to the terms and scope of the warranty. They should not go back to more than 3 months during their production.
Section 3. - Exercise as part of a corporation
Art. 10. § 1^er. Legal persons may practise the real estate agent profession if they meet the following conditions:
1° all managers, administrators, members of the steering committee and more generally, independent agents who intervene on behalf of and on behalf of the legal person are natural persons authorized to practise the real estate agent profession in accordance with section 5;
2° its object and activity shall be limited to the provision of services under the practice of the real estate agent profession and may not be incompatible with it;
3° if it is constituted in the form of an anonymous corporation or a partnership sponsored by shares, its shares shall be nominal;
4° at least 60% of the shares or shares and voting rights shall be held, directly or indirectly, by natural persons authorized to practise the real estate agent profession in accordance with Article 5; all other shares or shares may only be held by natural or legal persons reported to the Institute, exercising a profession that is not incompatible;
5° the legal person may not hold any interest in other companies or legal persons of a non-exclusively professional nature. The social object and activities of these companies cannot be incompatible with the function of a real estate agent;
6° the legal person is listed in one of the columns of the Institute's table.
§ 2. If the corporation is not listed in the table, the directors, managers and/or active associates are fully responsible for the civil liability of the acts committed in the exercise of the profession within the legal entity.
The corporation referred to in the preceding paragraph must meet the following conditions:
1° its directors, managers or active associates who exercise the regulated activity and who have the effective direction of the departments within which the activity is carried out, shall be registered in the corresponding column of the table or list.
2° In the absence of such persons, the obligation referred to in 1° applies to a director or manager or an active partner of the corporation designated for that purpose. For the purposes of this Act, these persons are presumed, in an irrefragable manner, to exercise this activity independently.
Art. 11. If due to the death of a natural person referred to in Article 10, § 2, 1°, or 4°, the legal person no longer meets the requirements for the occupation of a real estate agent, the legal person shall have a period of six months to comply with these conditions. During this period, the corporation may continue to practise the real estate agent profession.
Art. 12. The intern may not constitute a legal entity within the meaning of this Act or be associated with it, manager, administrator, or member of the steering committee unless it is a legal entity in which he or she practises the profession with his or her internship teacher or with a natural person registered in the real estate agent board.
CHAPTER 4. - Disciplinary
Section 1^er. - Ethics obligations
Art. 13. The members of the Institute comply with the ethical standards established by the Institute and made mandatory by the King.
These ethical standards determine at least the following obligations for professionals:
1st respect the duties of loyalty, independence, probity, diligence and dignity that are at the basis of the profession;
2° respect an obligation of discretion, i.e. that any information obtained through the work is used only in a professional setting, taking into account the right to privacy of all concerned;
3° having followed the training organized or recognized by the Institute; shall be taken into account the column in the table to which the holder or column of the list to which the trainee is registered;
4° exercise sufficient supervision over employees who assist the holders of the profession in the performance of their profession. By means of a deontological standard, the Institute may impose a minimum number of registered holders by operating seat or number of employees;
5° immediately inform the client and the Institute of any conflict of interest situation.
Section 2. - Disciplinary sanctions
Art. 14. § 1^er. Real estate agents, who have been proven to have failed in their duties, are liable to one or more of the following disciplinary penalties:
(a) warning;
(b) blame;
(c) suspension;
(d) radiation.
§ 2. The suspension consists of the prohibition of exercising for a fixed term, which may not exceed two years, the regulated profession in Belgium and the professional title.
Radiation leads to the prohibition to practise in Belgium the regulated profession and to carry its professional title and concerns all the activities repeated in article 2, 4° to 7°.
A real estate agent who incurs for the second time a suspension sentence may, under the same decision, be removed from the table or list of trainees.
§ 3. When a disciplinary penalty is imposed on a legal person, a disciplinary penalty may also be imposed on the natural person or the person authorized to practise the regulated profession, whose intervention is the cause of the acts committed by the legal person who is disciplined.
§ 4. The Chambers are competent to rule on disciplinary proceedings brought in pursuance of facts committed before the decision that omitted the real estate agent from the list or table referred to in Article 3 if the investigation was initiated by the legal assailant no later than one year after that decision.
§ 5. The King stops how these disciplinary penalties can be imposed. It also sets out the rules whereby rehabilitation may be granted.
Art. 15. Disciplinary authority may, at any time, order the full or partial publication of the statement. It may also impose on the member or the holder of the profession the obligation to undergo additional vocational training within a specified period of time.
Art. 16. By derogation from Article 9, § 4, of the Framework Law, for each Executive Chamber, the Minister shall appoint for six years, among the lawyers listed in a board of the Order, a legal assessor and one or more alternate legal assessors, whose duties of legal assistance, instruction and recommendations are fixed by the King.
The Minister may anticipate the termination of the legal assailant's mandate under the conditions that the King determines.
Without prejudice to the missions which are assigned to them by or under this Act, legal assessors and their substitutes are prohibited, under penalty of being demitted from office by the Minister:
- to plead before the Institute's Executive Chambers and Appeals Chambers and to advise members or candidates members on matters dealt with by or likely to be dealt with by these Chambers;
- advising a person and advocating for the person in a dispute with the Institute;
- advising and advocating for the Institute;
- advising or advocating for the effective or alternate members of the Executive Chamber and for appeal or co-ownership of which these members would be trustees.
Art. 17. Any conviction for abuse of trust within the meaning of section 491 of the Criminal Code results in the deletion of the real estate agent by the Chamber.
Any prior conviction on the basis of section 491 of the Criminal Code precludes the exercise of real estate activity.
In the event of a finding of diversion, the Board may suspend or remove the real estate agent from the list.
Art. 18. Decisions by which suspension or radiation is imposed are transmitted to the Attorney General.
Art. 19. The Disciplinary Authority may decide that there are reasons for suspending the delivery of the dependant disciplinary penalty, without the time limit set by it, which may not exceed five years. The suspension may depend on the fulfilment of a number of conditions, including the obligation to follow a specified training within a specified period of time. In the event of non-compliance with the conditions imposed, the Disciplinary Authority shall summon the member or the holder of the profession to a hearing of the Disciplinary Authority in order to impose a disciplinary penalty or to revoke the suspension of the decision.
Disciplinary authority may impose a reasoned decision to suspend the execution of the disciplinary penalty. 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 stay may depend on the completion of a number of conditions, including the requirement to follow a specified training within a specified period of time. In the event of non-compliance with the conditions imposed, the Disciplinary Authority shall summon the member or the holder of the profession to a hearing of the Disciplinary Authority with a view to disciplining or revoking the stay. The stay may also be revoked when a new disciplinary penalty is imposed.
Art. 20. § 1^er. Where the facts referred to a member or holder of the profession are concerned that the subsequent exercise of his or her professional activity is likely to cause harm to third parties or to the honour of the Institute, the legal assailant of the Executive Chamber may take the precautionary measures that are imposed by caution, such as the temporary prohibition to practise the profession. These interim measures cannot exceed three months.
At the request of the legal assailant, the duration of the interim measures may be extended by a reasoned sentence of the Executive Chamber, for a period of not more than six months after the person was heard or summoned at least eight days before the hearing.
§ 2. The person concerned may appeal to the Appeals Chamber for interim measures and the extension of the duration of the interim measures, enforceable by provision.
This appeal shall be notified within eight days of the notification of the Executive Chamber's decision by registered letter to the Secretary of the Appeals Chamber, who shall promptly summon the Chamber.
The decision shall be taken after the person concerned has been heard or summoned at least eight days before the hearing.
Art. 21. Upon the complainant's express request, the decision-making system based on his complaint is communicated to him. The Board may decide that, at its request, the reasons for the decision will also be communicated to it. The Board may decide on a reasoned basis and on the basis of serious grounds that the consultation of the disciplinary record will be granted to it.
The Board may decide on a reasoned basis that the decision will be communicated to third parties. Unanimous in the vote, the Chamber may decide on a reasoned basis and on the basis of serious grounds that the reasons for the decision will be communicated to third parties or that the consultation of the disciplinary record will be granted to them.
CHAPTER 5. - Criminal provisions
Art. 22. Without prejudice to the application of the penalties provided for in the Penal Code, shall be punished by imprisonment from eight days to three months and a fine of 500 euros to 5,000 euros or only one of these penalties:
1° the person who, without being authorized to do so, will be publicly assigned the professional title of a real estate agent and the person who has filed a title or added to the title that he bears a mention that may be confusing with the professional title of a real estate agent;
2° the person who has exercised this profession without being authorized to do so, or without being registered in the holders' table or in the list of interns;
3° he who practiced it, while he was subject to a suspension measure.
The court may also order, on a temporary or final basis, the partial or total closure of the premises used by the person who has been convicted of any of the above offences.
The legal persons who practise the real estate profession in accordance with this Act are civilly responsible for the payment of fines and the enforcement of compensation measures to which their organs and agents have been convicted.
Art. 23. All provisions of Book 1^er the Criminal Code, including Chapter VII and Article 85, shall apply to offences provided for in this Act.
Art. 24. Without prejudice to the duties of judicial police officers, federal police personnel, local police officers and officials, as well as officials and agents designated by the King on the proposal of the Minister, are responsible for the investigation and examination by minutes of the offences under this Act.
These minutes are believed to the contrary. They shall be transmitted promptly to the relevant officers of the Public Prosecutor ' s Office; a copy is sent to the offender, and to the Minister referred to in paragraph 1^er within seven working days of the finding of the offences, the penalty of nullity.
Art. 25. The persons to whom this Act applies are required to provide all the information and documents necessary to verify its application.
Will be punished by imprisonment for eight to fifteen days and a fine of 500 euros to 5,000 euros or only one of these penalties, the person who refuses to provide the information and documents referred to in the preceding paragraph or will oppose the control measures.
Art. 26. The time limits mentioned in this Act are calculated in accordance with sections 48 to 57 of the Judicial Code.
CHAPTER 6. - Transitional provision
Art. 27. The enforcement orders of the Framework Law that apply to the Institute and are not contrary to this Act, shall remain in force until they are repealed or replaced by orders made under this Act.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given at Châteauneuf-de-Grasse, February 11, 2013.
ALBERT
By the King:
Minister of Average Classes, EMPs and Independents,
Mrs. S. LARUELLE
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) See:
Documents of the House of Representatives:
53-2517 - 2012-2013:
Number 1: Bill.
No. 2: Amendments.
Number three: Report.
No. 4: Text adopted by the commission.
No. 5: Text adopted in plenary and transmitted to the Senate.
Full report: 10 January 2013.
Documents of the Senate:
5-1925 - 2012-2013:
No. 1: Project not referred to by the Senate.