Maria Nikolayeva comments on the Bill on establishment of the non-commercial self-regulating organization of realtors. Information- law portal Zakonia, 29th August 2016
Maria Nikolayeva, advocate of Attorneys at Law Pen & Paper, thinks that the law on establishment of a non-commercial self-regulating organization of realtors(SRO) won't help to solve the problem of low-quality services on the real estate market. According to the lawyer, the variant of the document brought to the State Duma doesn't give a clear definition of the subject of realtor's activity and its peculiarities.
As it is stated in the document, realtor's activity is carried out according to the terms of a treaty in order to make a bargain with the objects of real property, or according to an agreement to provide services requiring payment in order to prepare and arrange such bargains.
"Fulfillment" of services helps to prepare documents needed to make a bargain. At the same time, the "work" of a person who carries out realtor's activity results, in case of a sale(exchange), in assigning the proprietary rights in case of a lease(household) - in concluding a lease contract.
In this connection Maria Nikolayeva notifies that the subject of realtor's activity and the moment of its ending are defined not clearly enough.
"Moreover, the result favorable for consumer can be applied to the limited number of bargains. It is also rather conditional: proprietary rights to an object of real estate may be registered and challenged afterwards, the same as the right to use an object in case of a lease contract,"-adds the lawyer.
Maria Nikolayeva explains that it should be clear that such an aspect of described activity as preparation of documents for a bargain, registration of assigning rights is exclusively a component of law that needs a legal advice from professional lawyers in order to secure quality. As the peculiarities of realtor's activity are also not specified in the draft, the expert doubts the use of the proposed legislative regulation of prices. The bill includes responsibility of a realtor for harm caused by activity (or absence of activity) to a client. However, an insurance case as a fact of causing damage to a client as a result of breaching professional standards and rules of realtor's activity is stated by a SRO(self-regulating organization). Thus, realization of responsibility depends not only on the definition of the subject of activity, but also on the formulation of requirements for it which will be controlled by the SRO. Hence, the expert makes a prognosis: opportunities for bringing realtors to account will be pretty limited, besides, realization of the project will definitely make corresponding services more expensive.
"There is also some contradiction in terms used in the document. Oh the one hand, "juridical persons and IE's(individual entrepreneurs) may be the subject of realtor's activity, on the other hand, realtors are "natural persons, members of the SRO". Some places in the document show low quality of juridical technique."-notes Maria Nikolayeva.
We remind that the bill "On mediation (agent's activity) on the real estate market" was sent to the State Duma. The document should regulate realtor's activity- individual entrepreneurs and juridical persons practicing mediatory services in buying-selling bargains or rent bargains of commercial and residential real estate. Its goal is to make the market more civilized.
MP's insist that only professionals should be mediators in real estate bargains. Their personal data should be kept in the General State Register of the SRO. Realtors should be fined for incorrect registration of bargains. It is also proposed to implement obligatory insurance of mediator's responsibility in real estate bargains.
The government doesn't support the bill because at present realtor's activity is controlled according to the Civil Law of the Russian Federation by the "norms regulating contracts of agent's activity, commission and providing paid services".