The law, which was passed by the then Michael Misick-led Progressive National Party (PNP) administration in October 2004 but never assented to by the then governor Jim Poston, is now the subject of a public consultation.
The SUN understands that the proposed amendments to the new law will “grandfather in” existing real estate brokers who are not Belongers.
Currently, there is no law which allows a non- Turks and Caicos Islander to work as a real estate broker or salesman. The issuing of work permits to a non- Turks and Caicos Islander, for the purposes of working as a real estate broker/ agent is legally erroneous. The proposal is to include a transition clause which allows holders of work permits or companies who employ work permit holders, an opportunity to correct these discrepancies within a specific period of time.
The Ministry of Finance, Investment & Trade recently recirculated the Real Estate (Brokers & Salesmen) Licensing Ordinance 2004 (hereinafter the Ordinance), saying that the purpose of the Ordinance is to regulate and make provision for the licensing of Real Estate Brokers and Salesmen within Turks and Caicos Islands.
The proposed amendments to the Ordinance are as follows:
* Amendments to section 8. – Powers of Business Licensing Committee. There is currently no Business Licensing Committee. The proposal is to replace all
reference to the Business Licensing Committee throughout the Ordinance with reference to Permanent Secretary, Finance.
* Amend section 8(5) to allow all real estate licences to expire on 31st March each year, in order to coincide with the current business licensing cycle.
* Amend the legislation to add requirements for brokers which will include the following: required to be a TCI Status Card holder; required to register as a Designated Non-Financial Business and Profession, as set out under schedule 2 of the Anti-Money Laundering and Prevention of Terrorist Financing Regulations or under any Ordinance as may be required.
* Required to pass an examination set and administered by an intuition or body in Turks and Caicos Islands or an institution outside the Turks and Caicos Islands, which is recognized by the Inland Revenue Department, Ministry of Finance, Investment and Trade.
•Implementation of Regulations – To prescribe forms for e use under this Ordinance; to prescribe the practice and procedure upon an investigation under sections 14, 15 and 16 of the Ordinance; to provide for the examination of applicants for real estate licences and to generally allow for practical mechanisms which allow for more efficient administration of the Ordinance.
The ministry said the consultation seeks to obtain feedback on the experiences of stakeholders in the current real estate market and implement the necessary amendments and regulations which will not only bring the current Ordinance into alignment with global industry standards but improve the overall efficiency of its administrative components.
A document of the government’s website said this consultation is not only geared towards garnering feedback on the outlined proposals for amendments and regulations but also aims to solicit suggested amendments from those it will impact the most. This approach is expected to facilitate a smooth transition for operators and prospective operators in the real estate community.
“The purpose of the consultation is to gather information, views and evidence which will allow an informed decision to be made regarding the Proposal. As in any consultation exercise, the responses received do not guarantee changes will be made in accordance with what has been proposed,” the document stated.
In an interview with The SUN, Eric Floyd Seymour, Real Estate Broker for Century 21 and Erishar Properties, said: “My understanding of the legislation is that it does restrict new agents and new companies to Belongers/Turks and Caicos Islanders only. The legislation was passed 20 years ago with no government drafting regulations to bring it into force before now, so it has not been enforced by any previous government. What currently obtains is that Brokers are licensed under the Business licensing ordinance and there is currently no mechanism for the licensing of sales agents.”
“While the Turks and Caicos Real Estate Association (“TCREA”) has been set up as a self-governing body and regulates its members, not all Real Estate Brokers licensed under the Business Licensing Ordinance are members of TCREA, and as such are not subject to an form of regulation to ensure quality of service.”
Seymour explained that a new ordinance was also passed in 2009, but it was also not assented to by the then Governor.
“Under the constitution that was in force in 2009, when the law was passed I do not believe that the Governor had the right to refuse assent, absent a directive of the secretary of state, so I believe that the failure to assent to the 2009 ordinance was illegal. Notwithstanding my opinion, the fact that the 2009 ordinance was not ascended to means that the 2004 ordinance was never repealed and still stands,” Seymour added. So the government is now making an effort to enforce the law.”
Asked what is the difference between the 2004 and 2009 laws, Seymour said key elements of the 2004 Ordinance included but are not limited to: 1. Making the first provision for the licensing of real estate brokers and sales persons by the government, as is done in most of the developed world; 2. Being the first legislation with any regulatory oversite for the Real Estate Industry; 3. A limitation on New Companies to 100% Belongers (persons with islander status) owned companies; and 4. Restricting new agents to Belongers (Islander Status) only.”
He added: “In 2009 a new Real Estate (Brokers and Salesmen) Ordinance 2009 ordinance was passed unanimously by the house of assembly, but was never assented to by the then acting Governor. If assented to, the 2009 law would have repealed the 2004 ordinance, but given that it was not, it is my understanding that the 2004 law still obtains.”
According to Seymour, some of the differences in the 2009 ordinance were the creation of a Real Estate Board to oversee licensure and regulation of the Real Estate Industry; a softening of the stance on all new agents being belongers to require all companies to have at lease 70% of their agents as Belongers/Turks and Caicos islanders; and the maintenance of the position for all new companies to be 100% Belonger owned.
Asked why he thinkst the law was not enforced in the past, Seymour said: “I can’t answer that, but I know that discussions have been had with the last two premiers on the legislation and it did not appear to be a priority for any of them. If you were to ask me what do I think of the Government’s decision to implement the legislation now, I would say that it is a good thing and I applaud the Deputy Premier (Jay Saunders) on making this move.”
“I think there are many smart and charming Turks and Caicos Islanders who can succeed in real estate if given an opportunity. Hopefully, the new law will draw more attention to the industry and encourage more Turks and Caicos Islanders to seek to become agents and participate in the industry. If government is going to introduce new regulations for agents and brokers, I would encourage them to ensure that the standards are not any less than the standards set by TCREA. I believe that TCREA presents a good framework for regulating the industry and the Government can see how it can improve upon what currently obtains for members of TCREA.”