Illegal practice: identified trends and tools to counter them

One of the OACIQ’s mandates is to conduct investigations and bring criminal charges, if any, against the non-licence holders who engage in acts that are reserved for brokers.

Any written or verbal real estate brokerage contract that instructs a party to act as intermediary for the sale or purchase of an immovable, in exchange for compensation, can only be carried out by the holder of a valid licence issued by the OACIQ.  Failure to comply with this rule constitutes a violation to the Real Estate Brokerage Act and exposes the violator to legal proceedings before the Court of Québec. The violator cannot claim or receive compensation for the services rendered, as specified in sections 4 and 13 of the Act.

However, some people are not subject to the Real Estate Brokerage Act when, under certain criteria, they engage in a brokerage transaction. To learn about these exceptions, consult sections 2 and 3 of the Act.

Trends

An in-depth analysis of investigation requests helped us identify illegal practice trends.

Promotional websites

In recent years, many new websites offering an array of services related to real estate transactions have appeared. These emerging sites are thoroughly investigated on a regular basis to determine if they engage in illegal brokerage.

Intervention of the OACIQ

To this date, several offence reports were issued regarding this type of practice and the individuals involved were convicted. Check out the list of convictions for illegal practice.

Tools to prevent and counter illegal practice

Criminal recourse

The main tool in illegal practice matters is the criminal recourse. It results in the issuance of a statement of offence to offenders. A natural person is liable to a fine of not less than $2,500 nor more than $62,500, whereas a legal person is liable to a fine of not less than $5,000 nor more than $125,000. It is the prosecutors of the OACIQ Litigation Department who initiate legal proceedings, based on the results of investigation.

In rare cases, some other measures can be used simultaneously or independently of the criminal recourse, such as the search warrant and the interlocutory injunction.

Search warrant

The OACIQ is authorized to request from a judge to issue a search warrant. This warrant can be granted when the OACIQ has reasonable motives to believe that an offence was committed under the Real Estate Brokerage Act and when the evidence is located in a specific place. This warrant authorizes the representative of the OACIQ to enter into a specific location to get documentary or material evidence needed for the demonstration of the offence.

Interlocutory injunction

The OACIQ may also use an interlocutory injunction to stop a practice deemed illegal under the Act. The injunction is used to stop a violation to the Act that persists even if the conduct has been the subject of an offence statement.

And for consumers?

Consumers who carry out a real estate transaction through an unlicensed person cannot benefit from protection mechanisms, such as FARCIQ and the FICI, because these apply solely when an OACIQ licence holder is involved.