By NEIL HARTNELL
Tribune Business Editor
The Bahamas Real Estate Association’s (BREA) president has pledged to “aggressively push” for changes to the industry’s governing law, following last week’s court “victory” over an ex-Cabinet minister.
Carla Sweeting hailed the Court of Appeal’s Thursday verdict against George Smith as “a great day for BREA”, adding that both its integrity - and that of the Real Estate (Brokers and Salesman) Act 1995 - had been “preserved”.
Mr Smith, though, told Tribune Business in reply that he would “not roll over and play dead”. He promised to continue his legal battle with BREA over his application for restoration of his realtor’s licence.
And his attorney, Raynard Rigby, described Thursday’s verdict as “a small victory for BREA”, adding that the matter had been sent back to the Supreme Court.
Ms Sweeting, though, said the Appeal Court had overturned all the earlier rulings in Mr Smith’s favour.
“He lost everything the Supreme Court gave him, and we won,” the BREA president told Tribune Business.
“This is a great day for BREA. We have managed to maintain the integrity of the Act, as well as preserve the Association’s integrity. It’s been a long haul and a lot of money.”
Ms Sweeting added that BREA would now move quickly to provide the Attorney General’s Office with recommendations for amending the Real Estate (Brokers and Salesman) Act 1995, in a bid to prevent the same issue arising again.
“We have been preparing for years to make amendments to the Act, as we know there are loopholes and deficiencies in it,” she told Tribune Business.
“We are now going to aggressively put our suggestions and changes to the Attorney General’s Office for them to consider, so we never have to walk down this road again, whether people think they have a legitimate reason not to pay their dues.”
The Court of Appeal last week overturned Justice Deborah Fraser’s original May 12, 2015, decision, in favour of Mr Smith’s argument that BREA had violated section 35 of the 1995 Act.
This requires the Real Estate Board to give a hearing to all applications made to it under that law.
The application in this case was one by Mr Smith for ‘re-registration’, after his name was published in a newspaper advertisement among 70 realtors who had failed to pay their due licence fees.
Those realtors ceased to be registered under the Real Estate (Brokers and Salesman) Act 1995, and were no longer authorised to engage in the real estate business.
Ms Sweeting argued then that the Board felt Mr Smith never applied for such a hearing in his July 21, 2014, letter to them – a position the judge disagreed with.
Mr Smith was granted a declaration that BREA’s refusal to renew his licence and membership violated the 1995 Act’s provisions, and was “against administrative jurisprudence and the law generally”.
The Supreme Court also Ordered that Mr Smith’s damages, which he alleged to be $250,000, be assessed by the Supreme Court registrar.
Ms Sweeting said both the declaration and damages assessment Order had been overturned, but Mr Smith said he remained undaunted by Thursday’s reversal.
“They referred the matter back to the Supreme Court,” he told Tribune Business of last Thursday’s verdict. “The judgment was a narrow one.
“I’m not disheartened at all. I don’t intend to let the matter rest there, and I don’t intend to roll over and play dead. I intend to fight this matter, and consider it a cause now. George Smith’s saying it isn’t over.”
Mr Smith wrote to BREA’s registrar on June 1 last year, requesting the issuance of his membership and licence certificates for 2014 and 2015.
The renewal fees were enclosed, but not the re-registration fee. Mr Smith allegedly requested that BREA use the Act’s section 34, which gives the Board the power to reinstate realtors and their licences if either has been suspended or revoked.
The former Cabinet minister told Tribune Business: “I believe now, with a greater degree of intensity than when I wrote that letter in July 2014 that, under section 34 of the Real Estate Act, it was a proper application for the re-registration of myself and my son.”
Mr Rigby, Mr Smith’s attorney, confirmed that the Court of Appeal had set the earlier verdict aside, and remitted the matter back to the Supreme Court for a new hearing.
Explaining that the appellate court had ruled “on a very narrow point”, Mr Rigby added: “This gives the parties an opportunity to look at the totality of the issues in dispute, and make some strategic decisions as to how they now proceed going forward.
“What is clear, coming out of the exchange between the lawyers and bench in the Court of Appeal, is that BREA’s narrow interpretation of the Act is likely to be challenged going forward.
“It may be a small victory for BREA, but at the end of the day it speaks to some of the cardinal issues that the litigation has highlighted.”
Ms Sweeting, meanwhile, dismissed Mr Smith’s claim that he was being “victimised”. She added that the Real Estate Board made decisions based on law and facts, not personal feelings or opinions.
“I would never make a decision based on personal opinions,” she told Tribune Business. “You have to follow the Act.
“The day that someone does that - the day anybody on my Board makes a personal decision - is the day I resign. It’s not about that.”
BREA, in a press statement, emphasised that Mr Smith had failed to renew his annual licence, registration and membership on or before the December 31, 2013, due date.
The Act allows for a six-month grace period subsequent to that, but BREA said he failed to pay on or before June 30th 2014.
When Mr Smith attempted to renew after July 1, 2014, BREA said he needed to ‘re-apply’ according to the 1995 Act’s terms. Litigation subsequently followed.
Ms Sweeting told Tribune Business that Bahamian realtors thus had 18 months to pay the $400 fee and complete their license renewal.
“BREA does everything in its power to make it convenient for you to pay. There’s no excuse,” she added.
Besides making payments to BREA’s account at Royal Bank of Canada (RBC), Ms Sweeting said payments could be left at its office or made online - a facility used by many Family Island-based realtors.
BREA said its legal battle with Mr Smith consumed five hours in the Court of Appeal last week, with the issues debated including the annual renewal of licences; membership and registration; the six-month ‘grace period’; consequences of non-payment; removal of persons’ names from the register; re-registration; types of applications allowed under the Act; and the appeal processes.
The Association said the Court of Appeal did not agree with Mr Smith and Mr Rigby that the BREA Board meetings resulted in the Board refusing Mr Smith his licence, membership and registration.
Mr Rigby argued that the Supreme Court ruling was very narrow, and the issue was whether Mr Smith had been invited to present his case at a hearing before the BREA Board before a decision was rendered.
But the Court of Appeal ruled that there was no evidence to prove that Mr Smith had applied for re-registration, and no evidence to show the BREA board denied his application.
“I am extremely grateful to the Court of Appeal for their ruling in preserving the integrity of the Act,” Ms Sweeting reiterated. “It has its flaws and is in need of amendments, which we will now focus on now that this case is behind us.”
Simone Morgan-Gomez, attorney and partner with Callenders & Co, represented BREA.