12 May 2017

REAL ESTATE AGENT REGISTRATION | REAL ESTATE REGULATION ACT, 2016

Pursuant to the enactment of the Real Estate (Regulation and Development) Act 2016 (RERA), the Government of Maharashtra established Maharashtra Real Estate Regulatory Authority, (Authority) for the regulation and promotion of real estate sector in the State of Maharashtra. Consequently, the Maharashtra Real Estate (Registration of Real Estate Projects, Registration of Real Estate Agents, Rates of Interest and Disclosures on Website) Rules, 2017 (Rules) have recently been  notified.

Under the RERA Act for rendering their services, Real Estate Agents (“Agents”) have to be registered with the Authority Following are the salient features of the Rules.

REAL ESTATE AGENT UNDER THE RERA ACT:

A Real Estate Agent is a person who in a Real Estate Project receives (a) Remuneration (b) Fees or (c) any other charges as commissions for negotiating or acting on behalf of one person for transferring (a) plot, (b) apartment or (c) builiding by way of sale, to another person or vice versa and includes the following:

1             Any person who through any medium introduces prospective buyers and sellers to each other for negotiation for sale or purchase of plot, apartment or building.

2                Property dealers, brokers, middlemen etc.

Therefore, the definition of Real Estate Agent is a very broad and inclusive and consequently web portals engaged in selling plots, apartments would also fall within the purview of the definition and be required to comply with provisions of the RERA and Rules.

RERA PROVISION AND RULES IN RELATION TO REGISTRATION AS AN AGENT:

1             COMPULSORY REGISTRATION: Before facilitating the sale or purchase of any unit part of a real estate project registered under the Act, an Agent shall obtain registration under Section 9 of RERA Act.

2           APPLICATION UNDER FORM G: The Agent shall make an application for registration as prescribed under Form G of RERA Rules along with necessary documents and fees.

3          SEPERATE RECORDS OF ENGAGEMENT: The Agent upon being engaged by the promoter on whose behalf he has acted as real estate agent in preceding five years for a real estate project shall maintain and preserve books of accounts, records and documents separately for each such real estate project.

4      REGISTRATION AND RENEWAL CERTIFICATE: The Agent shall receive Registration Certificate (in FORM H) within 30 days of receipt of application subject to fulfillment of conditions. In the event, the Application is not rejected within 30 days of being made it shall be deemed to have been registered and the authority shall provide registration number to the Agent accordingly. The said Registration shall be valid for a period of 5 years on expiry of which the same can be renewed. Renewal of Registration (Form J) to be done within 60 days prior to the expiry of the registration.

5            REJECTION OF APPLICATION: The Authority may reject the Application and record the reasons for the same in FORM I. However, an opportunity of being heard shall be given to the Applicant before rejecting such Application.

6               SUSPENSION OF CERTIFICATE: Registration granted to an Agent maybe revoked or suspended if the Authority is satisfied that the Agent has committed any breach of Terms and Conditions under RERA Act or RERA Rules or if the Authority is satisfied that such registration has been secured by the Agent through misrepresentation or fraud. The said suspension can be made suo-moto by the Authority or on an application or complaint from the Promoter or Allottee.

OBLIGATIONS UNDER RERA ACT READALONGWITH RERA RULES:

           

1             Every registered Agent shall prominently display number of his Registration Certificate at the principal place of business and at its branch offices.

2         Every registered Agent shall quote his number of their registration all the documents relating to advertisement, marketing, selling or purchase issued by the Agent along with the number of registration certificate of the real estate project.

3             An Agent shall not facilitate the sale or purchase of any plot, apartment or building, as the case may be, in a real estate project or part of it, being sold by the promoter in any planning area, which is not registered with the Authority;

4          An Agent shall not involve himself in following unfair trade practices by making following statements orally, in writing or by visible representation which (i) falsely represents that the services are of a particular standard or grade (ii) states that the Promoter or the Agent has approval or affiliation which such promoter or Agent he does not have (iii) makes a false or misleading representation concerning the services;

5         An Agent shall facilitate the possession of all the information and documents, as the allottee, is entitled to, at the time of booking of any plot, apartment or building, as the case may be;

PENALTY FOR NON-REGISTRATION AND CONTRAVENTION OF PROVISIONS:

Under the RERA Act if any Agent fails to comply or contravenes the provisions relating to registration or functions, he/she shall be liable to a penalty of Rs. 10,000/- per day during which the default continues. The said penalty may extend up to five per cent of the cost of plot, apartment or buildings of the real estate project for which the sale or purchase has been facilitated.

MHCO COMMENT: The Rules intend to regulate the largely unorganized, real estate agent sector, and make it more transparent. The registration of real estate agents being made compulsory and the penalties chargeable for non compliance of the rules and non registration shall have a positive impact on the real estate sector and is in favour of the buyers as it shall eliminate the bogus agents who give misleading listings and false specifications in order to draw attention and earn commission.

The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or legalupdates@mhcolaw.com for any assistance.