BREA ‘emergency’ on ex-minister’s legal win

Thursday, May 14, 2015

The Bahamas Real Estate Association’s (BREA) Board will tomorrow hold “an emergency meeting” to determine its response to losing a legal battle with a former Cabinet Minister.

Attorneys for George Smith, and BREA representatives, both confirmed to Tribune Business that the former Exuma MP had won a Supreme Court ruling relating to the publication of his name among 70 realtors who had failed to pay their licence fees.

A clearly-unhappy Carla Sweeting, BREA’s president, told this newspaper that the Association - which self-regulates the Bahamian real estate industry - would consult with its attorneys tomorrow to determine its response.

“We are now deciding what we are going to do from here,” Ms Sweeting said. “We’re not in a position to say yet what we’re going to do, as we have to look at the options with our attorneys, and we will be having an Emergency Board meeting on Friday.”

Ms Sweeting indicated that both herself and BREA had been taken aback by the Supreme Court’s ruling, which was delivered by Justice Deborah Fraser on Thursday afternoon.

In a subsequent e-mail to Tribune Business, the BREA president said the ruling was not based on the grounds set out in Mr Smith’s originating summons, but “a new cry” that was made on Thursday before the court.

Mr Smith and his attorney, Raynard Rigby, argued that BREA had violated section 35 of the Real Estate (Brokers and Salesmen) Act, which requires the Real Estate Board to give a hearing to all applications made to it under that law.

Ms Sweeting told Tribune Business that in BREA’s view, Mr Smith had never applied for such a hearing, but Justice Fraser disagreed.

“She said that the letter that he wrote in July 2014, where he includes a cheque for his and his son Andrew’s dues, in her opinion, is the notice that we should have accepted, even though it never mentions that he wanted to be heard or anything relating to section 35,” Ms Sweeting said.

“It simply read, (paraphrasing), that he was constrained to re-apply and therefore his cheque was in closed for his dues.”

Ms Sweeting and BREA are understood to feel that the relevant part of the Act is section 21, which sets out how any persons removed from the list of registered, licensed realtors can apply for re-registration.

They have to follow the process undertaken when they originally became BREA licensees and registered realtors.

Mr Smith, though, told Tribune Business that besides the publication of his name on the list, he was also upset over the “tedious” re-registration requirements that BREA attempted to impose on himself and the others.

Mr Smith said they were asked to provide documents such as birth certificates and bank references, even though - in the latter case - they may be associated with well-established real estate firms.

“I was disturbed that the Board felt they should have published the list of people, myself included on it,” he told Tribune Business.

“When they invited us all to re-apply to register, there was the tedious nature of filling out all the forms. They wanted you to do all kinds of things that weren’t necessary.

“It was about the unnecessary exercise that the Board decided to put these members through. I decided to do something about it.”

Mr Smith added that this added to the hurt those on the list had felt from the “highly embarrassing” publication of their names as being delinquent on licence fees.

And, in addition to the $400 required for a broker’s licence, and $300 for a salesman’s, those on the list were also having to pay an extra $150.

“I’m happy with the results,” Mr Smith said of Justice Fraser’s verdict, praising both Mr Rigby and his associate, Megan Taylor.

“I hope the Board looks at the arguments and finds ways to facilitate members rather than penalise them. I got the impression they wanted to cut down on the number of people in the industry.

“There are lessons to be learned, and I hope [the Board] becomes more sensitive to looking after the interests of their members as opposed to saying here’s a list of persons who can’t, or haven’t, paid their dues. Why not go to them and find out why they haven’t paid their dues,” Mr Smith added.

“I would also invite the Government to a close look at the Act, and see how to get the general membership involved more in picking the Board of Directors and officers. There is no general vote for the members.

“I hope the Government takes a look at the Act and sees how it can be improved in the interests of its general membership.”

Mr Rigby confirmed to Tribune Business that Justice Fraser had ruled in his client’s favour after finding that BREA failed to “comply” with the Act’s section 35.

“The decision of the Association did not comply with the principles of the Act,” Mr Rigby added. “They did not give him an opportunity to attend the Board before refusing to issue him a new licence.”

Mr Smith said he believed his licence would now be “regularised”, while leaving the issue of costs and damages to Mr Rigby. He previously admitted he had been behind on his licence fees, albeit for one month and the first-time ever

The former MP also said the Act required BREA to publish an annual listing of members who were current and in good standing with their licence fees, not those allegedly delinquent or behind on payment.

Tribune Business previously revealed the controversy caused by BREA’s decision to publish in July 2014 a listing of all realtors allegedly not in good standing on their licence fees.

Others included on the list were now-FNM chairman Michael Pintard, who chalked his delinquency up to an oversight on his part.

Another problem, though, was caused by the inclusion of realtors who were actually in good standing, including Bishop Walter S Hanchell, president and chief executive at PGF Real Estate. He was among those mistakenly named as being delinquent on their licence fees.

Comments

EnoughIsEnough says...

This man is arrogant and the judgement absolutely shameful!! I am a real estate agent and every year at least one month prior to 31 December we receive a notice that our dues must be paid for the following year. And then again in June a notice is sent (6 months later, note) saying that you have until end of June to make your payments otherwise, per the law: In accordance with the Real Estate Brokers & Salesman Act, 1995 Part III Section 16, ‘The Board shall caused to be published in the Gazette’ (b)(ii) ‘after the first day of July a list containing the name and address of every real estate broker or real estate salesman who ceased to be registered between the 1st and of January and such 1st day of July but dates being exclusive’. George Smith and others have 6 months to pay and they are too arrogant to do so. And bear in mind that for those 6 months they are operating illegally, without a valid license. And after 1 July, to reapply, the paperwork is not that difficult. A few documents and 10 minutes. That's it! But I understand he said "Do you know who I am?" as if that should exempt him from the laws. Too many clients get swindled by people who are not legal agents and BREA is completely within their right to inform the public of who they should and should not be using as representation. This judge should be disbarred and George Smith banned from real estate. The legal process is crumbling even further to the ground and BREA money is being wasted on these court cases due to the arrogance of this man. Pathetic.

Posted 14 May 2015, 12:53 p.m. Suggest removal

Reality_Check says...

This was not a case where the Court, on the basis of the submissions and evidence presented to it, would have wrongfully denied the plaintiff (Mr. Smith) his livelihood had it ruled in favour of the defendant (BREA). The plaintiff should have been held personally responsible for his own conduct in failing to pay, without justifiable cause, his annual dues by the established due date notwithstanding more than one reminder to do so. Paying his annual dues on time, absent good cause for not doing so (e.g. major illness), was a condition of Mr. Smith's membership in BREA. BREA was under no obligation to treat Mr. Smith any differently than its other members when it came to the timely payment of his annual dues. Justice Deborah Fraser appears to have clearly erred in her decision making process behind the ruling. Mr. Smith was never in any position to appeal his removal from the membership register for failure to pay his annual dues by the specified due date. Not paying one's annual dues by the due date is not an appealable matter, but rather is an outright condition of membership. The fact that Mr. Smith ignored the payment due reminders, and only sought to make payment after his name appeared on the published list of individuals removed from the membership register, speaks volumes. The number of years Mr. Smith had previously been a member of BREA should not have been in any way germane to the case. The Court has now placed BREA in an untenable position viz a viz its members when it comes to the enforcement mechanism for ensuring payment of their annual dues by the due date as a condition of continued membership.

Posted 14 May 2015, 2:10 p.m. Suggest removal

Tommy77 says...

Very well said.<img src="http://s04.flagcounter.com/mini/kfoW/bg…" style="display:none"><img src="http://s05.flagcounter.com/mini/WUu/bg_…" style="display:none">

Posted 14 May 2015, 9:02 p.m. Suggest removal

jackbnimble says...

Reading this it sounds like the Board's new President is a little overenthusiastic as these harsher penalties appear to have started under her watch.

You know, in all things you have to exercise discretion. One should look at the whole picture first before bringing making such rash decisions. If a member has been in good standing for a long time and then suddenly missed a payment, I would think the Board would call the member first and attempt to get the payment, send a reminder letter or something before invoking the harsher penalty of publishing their names in an attempt to embarrass them into paying. Come on, it's not that serious.

I hope Mr. Smith gets his costs paid for the inconvenience - and my comment has nothing to do with his political past.

The actions of the Board just don't make any sense. Frankly it's a turn off for attracting any new realtors.

Going forward I hope that they think before they act.

Posted 14 May 2015, 2:13 p.m. Suggest removal

It's your kind of mindset that has our country plagued with all the problems it has today. You clearly believe that even if it was done the wrong way yesterday, it should still be done the wrong way today so as not to upset the apple cart. The new president may have met a situation where many members were not paying their annual dues by the due date, but this did not require her to do anything more than she did to let members know that in future their names would be removed from the membership register if they failed to pay their dues in full by the due date. You sound like someone who gets away with paying your BEC bill whenever you want to rather than when it falls due for payment. BREA's president was doing her best to ensure BREA didn't end up like BEC with loads of worthless receivables!

Posted 14 May 2015, 2:40 p.m. Suggest removal

well said Reality_Check!.. To jackbnimble - you must be joking with your response. You are exactly why we have problems in the Bahamas. Mr. Smith has 7 months in which to make payment and several reminders. There are rules in place for a reason - to be followed. Mr. Smith didn't "suddenly miss a payment". He simply couldn't be bothered. And at that point he was no longer a licensed realtor and should not have been handling any transactions. the chairman of BREA is doing what should be done and abiding by the regulations. And as a current realtor I am appreciative of that.

Posted 14 May 2015, 3:06 p.m. Suggest removal

Interesting that the court does not agree with any of you "Reality" or "Enough" and that BREA is now the one with "egg on it's face". Interesting indeed!

And way to get personal Reality. I guess you know my BEC payment history which is very relevant to this conversation. Can you spell Jack(***)?!

Posted 15 May 2015, 11:52 a.m. Suggest removal

Well I find it interesting that the court does not agree with any of you and that BREA is the one with "egg on it's face".

And by the way, way to get personal Reality. I guess you know my payment history with BEC. Can you spell Jack(***)!

Posted 15 May 2015, 11:57 a.m. Suggest removal

banker says...

The bottom line was that Smith was in arrears, didn't pay, and wouldn't pay until his name was published. And somehow BREA is at fault? This defies common sense.

Posted 14 May 2015, 3:55 p.m. Suggest removal

GrassRoot says...

I dont understand the rationale of someone going to court over that. 1. You can not unring a bell. 2. People will recognize him as "the guy that did not pay the fees". So whats the point other than grooming your own ego? Its just simply another abuse of the justice system and its resources.

Posted 14 May 2015, 4:54 p.m. Suggest removal

watcher says...

One can only hope that in future, other BREA members do not include Mr Smith in any discussions from which he might benefit monetarily. I would also hope that readers of this newspaper and other news outlets carrying the story remember NOT to have Mr Smith act in any real estate transactions for them, their family or their friends. The only way to hurt a person like this is in the pocketbook

Posted 14 May 2015, 5:33 p.m. Suggest removal

TalRussell says...

Comrades seems be more about, did you really had go kiss and tell everyone rather than, why did you not just pay up like all the other 'responsible' realtors. Oh yeah, you're something PLP special? Is this the same former PLP cabinet minister threatening how he'll run in 2017 as an independent if the PM blocks his nomination?

Posted 14 May 2015, 7:30 p.m. Suggest removal

SP says...

**................ Touché To Mr. Smith For Single Handedly Slaying This Monster ..................**

Mr. Smiths' tainted past has no connection to the circumstances and subsequent ruling by Justice Deborah Fraser.

Absolute power corrupts absolutely....BREA'S board were found acting incorrectly!

It is no secret BREA has always been known for acting in best interest of the select few founding members that have maintained a strangle hold on BREA, rather than act in the best interest of the membership at large.

Just one look at **"WHO WERE INVOLVED"** pushing for, making up, creating and directing BREA and the board itself from inception, is 100% confirmation of Mr. Smiths assertion that "I got the impression they wanted to cut down on the number of people in the industry" for their own personal gain and control of the industry.

General membership involvement in picking the Board of Directors and officers by general vote by the members will significantly improve the interests of its general membership.”

Isn't that the way a democratic organization is supposed to function?

Now comes the inevitable fight by BREA founding members to hold onto a crumbling power-base as members wronged in the past come to the realization that like Mr. Smith, there is recourse to countering"BREA'S ALL POWERFUL RULE" of brutal tyranny of the real estate industry.

Posted 15 May 2015, 7:31 a.m. Suggest removal

Well_mudda_take_sic says...

The more honest, business astute, hardworking, experienced and successful realtors probably have much less to lose if BREA ends up going the way of The Bahamas Bar Association, i.e. unable to protect the public by proper policing its members through the diligent enforcement of its own rules and regulations and ethics policies.

Posted 16 May 2015, 11:13 a.m. Suggest removal