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APC > Fee calculation, ToE, CoI, CPD, PII > Flashcards

Fee calculation, ToE, CoI, CPD, PII Flashcards

1
Q

Explain fee negotiations

A
  • aggressive fee cutting is not allowed.
  • firms should avoid collusion and fixed pricing.
  • fees should be market based and agreed with clients on an ad hoc basis.
  • submit an initial fee and then you can enter into further fee negotiations. (acting in a professional manner).
  • you may wish to vary your proposed level of service when renegotiating your initial fee. (still being aware of being able to provide a high level of service.)
  • you should not be seen as undercutting another firm.
  • you must always be transparent with your client and consumers - so they know if you are in receipt of, or offering a referral fee. and this should be stated in the ToE.
  • Granting and accepting referral fees should also be considered in the context of the Bribery Act 2020 and the RICS rules of conduct.
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2
Q

state three things included in a ToE?

A

state in writing the clients agreement to…
- proposed fee basis
- payment of expenses (and how calculated)
- state that a copy of the firms complaints handling procedure is available upon request.

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3
Q

What should you do prior to accepting an instruction?
CIT

A
  1. check professional Competence
  2. no conflict of Interest or personal Interest
  3. confirm Terms of engagement in writing and get written approval from the client BEFORE you start work on the instruction.
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4
Q

Compliance with what legislation is needed for carrying out agency work?

E&M

A

Section 18 of the Estate Agency Act 1979 and Money Laundering Regulations 2017 (as amended) is required for agency work

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5
Q

under what circumstances might is be appropriate to decline an instruction?

A
  1. not competent to undertake the work - it is outside of your limitations
  2. you do not have sufficient facts on the issue.
  3. the proposed client will not sign the ToE and/or complete AML checks.
  4. there is a conflict of interest or personal interest.
  5. PII cap cannot be agreed.
  6. the advice is for a friend or on a pro bono basis and your PII will not cover work carried out on a personal basis.
  7. The potential client is on the UK Governments sanction list
  8. would you be content for your actions to be made public?
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6
Q

what is a conflict of interest, and give an example of what this might be?

A

CoI arises when a member/firm’s independence and impartiality is threated due to the existence of a conflict between 2 clients.

For example:

  • acting on both sides of a transaction
  • personal interest
  • financial interest
  • commercial relationships.
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7
Q

what is conflict avoidance?

A

when you do not accept an instruction due to a present CoI.

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8
Q

what is conflict management and give an example?

A

when you accept an instruction and put in place steps to manage the conflict.

For example, ethical barrier or information, with the written agreement of all parties.

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9
Q

what does the RICS Global Professional Statement on CoI, 2017 (effective 2018) say?

A
  1. a member/firm should not advise / represent a client where there is a CoI present (or significant risk of a CoI) unless all involved/that could be affected are made aware and provided their written informed consent.
  2. informed consent must only be sought when the firm/member is satisfied that the proceeding is in the interest of all parties involved
  3. all conflicts must be managed in accordance with the statement.
  4. Every RICS firm must have effective systems and controls in place appropriate to the size of the firm.
  5. RICS must keep records to show their compliance with the statement.
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10
Q

what are the three defined types on CoI?

POC

A
  1. Party conflict - when working on the same / related instruction for two different parties.
  2. own interest conflict - relating to personal interest
  3. Confidential information conflict - relating to work between two parties that is confidential.
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11
Q

What is informed consent, and under what circumstances should surveyors seek it?

A

informed consent is given in writing when the party that is explaining the conflict is doing so transparently and making them aware of all material factors and ensures that the party affected understands what they are doing.

surveyors can only seek informed consent when it best serves all parties involved.

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12
Q

Talk me through how to handle a conflict?

(3 step process)

A

STEP 1: CONFLICT AVOIDANCE
- conflict avoidance - upon receipt on the full facts, consider whether the conflict is irresolvable because impartiality is compromised and should be avoided or whether it can be properly managed maintaining transparency and openness.

  • Decide whether to decline or accept the instruction from said client/s.

STEP 2: WRITTEN ADVICE TO BOTH PARIES

  • disclose the nature of the conflict, all the facts and circumstances, set out your proposals for how the firm intends to deal with the conflict, such as information/ethical barrier.
  • be as clear as you can - ensure all parties can make their own decision and inform them to seek independent advice if needed.
  • request written confirmation from both clients of their informed consent that your firm can act in accordance with the provisions and proposed procedure.

STEP 3: CONFLICT MANAGEMENT

  • once received written consent - set up an information barrier - carry out the proposed management strategy agreed.
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13
Q

conflict management

describe an information/ ethical barrier

A
  1. (must be physically separated) surveyors are physically working in different teams/ buildings/ different support teams.
  2. barrier must be robust enough so information is not going to be passed between.
  3. all info should be securely stored.
  4. Keep a clear audit trail of the conflict check process and all written and oral communication should be overseen by the firms compliance officer.
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14
Q

Give an example of where you have seen a conflict of interest being managed in your firm?

A
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15
Q

RICS Professional Statement: CoI - UK commercial property market investment agency, 2017

A
  • relates only to the UK commercial property market investment agency work where a specific risk has been identified.
  • relates to dual agency - where an agent has a contractual relationship with both the buyer and seller at the same time.
    THIS IS NOT ALLOWED SINCE 2018
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16
Q

describe what a personal interest/own conflict is?

A

arises when acting for “connect person” ie family member, business associate, some one where there is personal gain/ financial gain.

declare the facts in writing before accepting an instruction.

Personal interest should not interfere or influence your professional judgement. full transparency is required.

remember S21 of Estate agency act 1979 declaration required for agency work.

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17
Q

what does the RICS bye laws say about confidentiality?

A

client confidentiality must be maintained for all client affairs.

(including historic information, and information provided by the client prior to accepting an instruction)

you need clients approval before allowing a third party to access the files. unless your are subject to statutory duty - eg police or HMRC investigation.

if a surveyor mistakenly receives/ overhears client information that’s not their client - they need to declare it and dispose of it - they can not use it for their own gain.

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18
Q

how long do you have to store/hold clients files before destroying it?

(confidentiality)

A

minimum of 6 years before disposing/ destroying.

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19
Q

what does the RICS Guidance Note on Complaints Handling 2016, set out?

CHP

A
  • a firms written CHP must be approved by the RICS.
  • notify the PII insures when a complaint is received as this could lead to a claim for negligence.
  • details of CHP should be issued the same time as the ToB
  • a complaints log must be maintained to show the details, progress and outcome of complaints.
  • firms must have an RICS approved ADR in their CHP.
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20
Q

tell me the standard minimum procedures for the handling of a complaint

STAGE 1 (In house)

STAGE 2 (ADR - 3rd party resolution)

A

STAGE 1 (In house)

once a complaint has been made, details of the CHP should be issued to the party the firm has a duty of care to.

procedure must be quick, clear, transparent and impartially implemented.

person to contact in the first instance should be the nominated person who will investigate the complaint, - complaints handling officer.

complaint must be made in writing.

the investigation should be recorded with strict time scales in place for the investigation.

a complaint should be acknowledged within 7 days and investigated within 28 days.

STAGE 2: ADR - third party resolution:

if they are not happy with the review then the next stage of CHP is using an independent readdress scheme,

the name of the appropriate readdress mechanism must be provided to the complainant such as The Centre for Dispute Resolution (CEDR). The property redress scheme and the RICS Dispute Resolution Service.

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21
Q

who is a complaints handling officer?

A

a sole practitioner must nominate a surveyor in another firm to act as their complaints handling officer.

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22
Q

when will the RICS become involved in the CHP process?

A

The RICS will only become involved if a member fails to respond to the complainant or prevents the party gaining access to an independent readdress mechanism.

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23
Q

requirements from members on CPD

hours
maintaining
record

A
  1. 20 hours per calendar year
    10 hours must be formal
    rest informal
  2. members must maintain current and relevant understanding of the RICS Rules of Conduct during a rolling 3 year period.
  3. must record their CPD using the RICS CPD management system on the RICS website.
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24
Q

what constitutes formal CPD?

A

forms of structured learning that has clear objectives and outcomes.

Examples include structured training, seminars.

Where things can be assessed by an expert third party.

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25
Q

What constitutes Informal CPD?

A

self managed learning that is relevant or related to your professional role

Examples include private study, on the job training.

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26
Q

What is Professional Indemnity Insurance?

A

insurance to protect clients, surveyors and third parties against negligence complains where there is a duty of care breached and a claim for damages arises.

Details set out in the Professional Indemnity Insurance Requirements V9 (effective 2022)

all members must ensure that an adequate and appropriate level of insurance is in place for each instruction having considered potential liabilities which may exist.

all policies must be underwritten by an RICS approved insurer.

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27
Q

Current minimum requirements for PII based on turnover?

A

firms turnover for the preceding year: - minimum level of PII required for each and every claim

£100,000 or less - £250,000

£100,001 to £200,000 - £500,000

£200,001 and more - £1,000,000

If its a new business - just estimate the turnover and then adjust accordingly

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28
Q

what do firms have to consider when thinking about the level of PII needed?

A

their likely risk profile to negligence claims. (the turnover numbers are only minimum levels required)

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29
Q

Current maximum requirements for PII based on turnover?

A

firms turnover for the preceding year: - minimum level of PII required for each and every claim

up to £10 million - the greater of 2.5% of the sum insured of £10,000

Over £10 million - no set limit

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30
Q

how does PII work?

A

policy should be fully retroactive, PII works on a ‘claims made’ basis i.e. policies cover claims that are made during the duration of the insurance regardless of when the negligent act occurred.

certificate to be sent to the RICS on an annual basis as part of the firms annual return to RICS

Early notification to firms insurance is required when a potential claim arises.

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31
Q

tell me about adequate and appropriate PII run off cover?

A

Consumer claims - a minimum of £1,000,000 of aggregate cover over a period of 6 years

Commercial claims - firms must consider what adequate and appropriate for a minimum of 6 years

firms that are unable to obtain run-off cover from their incumbent insurer or the open market will be able to apply for coverage to the RICS Run-off pool.

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32
Q

Is PII cover needed for Pro Bono work?

A

yes

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33
Q

what is the RICS Assigned Risk Pool?

A

available (at a cost) for members who cannot arrange cover.

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34
Q

what is Member Support Service (MSS)?

A

for members who’s firms have gone into administration and they are facing claims for work they carried out.

It offers support, help and advice.

35
Q

RICS Guidance Note Risk, Liability and Insurance 2021 includes what 2 pieces of advice:

A
  1. RICS recommends the use of the liability caps to manage risks associated with professional work.
  2. be aware of third party reliance and make it clear that only the client named in the ToE can rely on the advice given.
36
Q

what needs to have occurred for a negligence claim to be made?

A
  1. when a duty of care is breached
  2. loss
  3. damages (negligence claim)
37
Q

who do you have a duty of care to?

A

clients and third parties
using ‘reasonable care and skill’
when its breached
a loss is experienced
a claim for damages arises.

38
Q

Yianni v Edwin (1981)

negligence

residential valuer

A

established that a residential valuer doing a valuation for a mortgage lending institution could owe a duty of care in tort to the mortgagee purchaser relying on the valuation.

39
Q

Scullion v Bank of Scotland plc (2010)

buy to let

A

relates to a breach of the duty of care owed to Mr Scullion in relation to a valuation report prepared for a flat in Cobham Surrey

The court appeal held that a surveyor who provides advice on value to a lender in respect of a buy-to-let purchase does not owe a duty of care to the borrower who is seeking funding to purchase the property.

overall surveyor doing a valuation for a lending provider on a buy to let does not have a duty of care to the person asking for money from the lender.

It overturned the original court decision in the case of a commercially astute borrower.

40
Q

Burgess v Lejonvarn (2020)

Pro Bono

A

established professionals providing services pro bono without a contract owe a duty of care in tort to act with ‘reasonable care and skill’ in respect of services they provide.

However, Court of Appeal also determined that they are not under a duty to advise, give warnings, nor are they liable for the work they do not do.

41
Q

Limitation Act 1980

What is the current limitation period for contract negligence?

Negligence

A

6 years from the date of negligent act, omission or breach of contract.

Also S14A provides an alternative limitation period of 3 years from the date of knowledge of the damage, subject to the 15 years long stop from the negligent act or omission.

42
Q

Limitation Act 1980

What is the current limitation period for Tort negligence?

Negligence

A

6 years from the date the claimant suffered loss.

43
Q

actions you can take to avoid / reduce negligence

A
  1. clearly understand your clients objectives - confirm precise instructions in the ToE.
  2. make sure you are competent to undertake the instruction.
  3. keep up to date on market knowledge.
  4. practise in line with professional standards and practise information.
  5. make detailed notes on file and take pics
  6. cap the professional liability excess on your policy in the ToE.
44
Q

give examples of handling clients money

A
  • service charge
  • rent
    -deposits

‘firms keep client money safe and have appropriate accounting controls’ - outlined in the rules of conduct.

45
Q

what are the 6 main areas of good practice as set out in the RICS professional standard ‘Client Money Handling’ 2019?

A
  1. holding clients money

2.providing information to clients

  1. receipts of client money
  2. payment from client accounts
  3. accounting records and controls.
  4. compliance
46
Q

name procedures surveyors need to be aware of when handling clients money

A
  1. clients accounts must be kept separately and clearly identifiable.
  2. the word ‘client’ needs to be on the bank account and cheque book
  3. client must be able to have their money on demand.
  4. payment of interest must be agreed by the client and accounts must be kept in credit.
  5. regular bank reconciliation checking that payments received are transferred to the bank account and expenditure records are checked at least monthly.
  6. accurate records are kept with a running balance available.
  7. a discrete account is for a single named client only.
  8. RICS regulatory Review visits of inspection can be undertaken by RICS usually on a routine 3 year basis by an accountant employed by the RICS.
47
Q

what is the RICS Clients Money Protection Scheme

A

for claims from clients as a last resort where the firm are unable to repay the clients money - there are limitation and exceptions set out in the scheme rules.

split into 2 parts for residential agents and for surveying services.

48
Q

What are the RICS requirements/ compliance for setting up a new practise?

(13)

A
  1. inform RICS of the new practise by completing an RICS firm details form.
  2. appoint a responsible principle
  3. register with RICS for regulation of the firm.
  4. arrange PII and send details to RICS.
  5. set up procedures for the requirements for client money handling, including a protection scheme.
  6. register for the RICS Valuer registration scheme (VRS) if undertaking Red Book Global Valuation work
  7. obtain RICS approval for the complaints handling procedure
  8. set up a complaints log
  9. appoint a complaints handling officer (or elect a surveyor at another firm if a sole practitioner)
  10. use a logo kit from the RICS for all practical material to comply with RICS
  11. plan for succession /future running of the business if a sole practitioner.
  12. Ensure CPD logged online on CPD management system and set up staff training plan.
  13. ensure completion of an online RICS annual return at the end of each year.
49
Q

What are the statutory compliance for setting up a new practise?

(13)

A
  1. requirement to disclose business name
  2. discrimination compliance (Equality Act 2010)
  3. Financial services compliance
    - financial services and markets Act 2000
    - financial services act 2012
  4. Bribery act 2010 compliance
  5. Appoint a money laundering reporting officer (Money regulations 2017)
  6. Health and Safety compliance (health and safety act 1974)
  7. Asbestos register (control of asbestos regulations 2012)
  8. fire and safety compliance (regulatory reform (fire safety) order 2005)
  9. register for data protection (general data protection regulation GDPR 2016 and data protection act 2018)
  10. Estate agency compliance (estate agency act 1979, consumer protection regulations 2008, Misrepresentation act
  11. Inform HMRC for VAT and tax registration (VAT threshold is currently £85,000 p.a. turnover
  12. Ensure compliance with current employment laws ie national living wage, working hours, pensions, gender pay gap
  13. Ensure insurance compliance for any employer and public liability.
50
Q

Closing a practise

A
  1. Inform the RICS of retirement / closure of practise.
  2. ensure clients are informed at the earliest convenience. and make hand over arrangements to a new firm
  3. return any monies held by clients to their own accounts.
  4. inform insurers and procure PII run off cover for a minimum of 6 years from the expiry of policy in force at the time of closure in accordance with RICS requirements
  5. retain a copy of the clients files and records for a minimum of 6 years
51
Q

what does the Bribery Act 2010 do?

A

aims to reduce bribery in the UK and abroad.

52
Q

what constitutes a bribe?

A

a bribe can be giving, offering, promising , receiving of an advantage such as a
payment
gift or service

FOR

and action which is illegal or a breach of trust.

53
Q

6 principles the Bribery Act 2010 is based on?

A
  1. proportionality
  2. top level commitment
  3. risk assessment
  4. due diligence
  5. communication
  6. monitory and review
54
Q

what are the 4 offences?

Bribery Act 2010

A
  1. Bribing
  2. receiving a bribe
  3. bribing a foreign public official
  4. failing to prevent a bribe.
55
Q

are companies responsible for the employees corrupt act?

And when are they not?

A

yes companies are

unless the company has put in place adequate policies and procedures to combat bribery.

56
Q

can you take a client out to a sporting game or lunch?

A

yes, if you record it on the gift/hospitality register and it is both reasonable and proportionate

57
Q

companies must show what to prove they are preventing bribery?

A
  1. staff training
  2. provision of clear policies.

These are regularly reviewed.

58
Q

who policies the Bribery Act 2010?

A

Serious Fraud Office

59
Q

what are the penalties for breaching the Bribery Act 2010?

A
  1. 10 years in prison
  2. unlimited fine.
60
Q

Terrorist financing and Transfer of funds regulations 2017, amended 2022

what is money laudering

A

when the proceeds of criminal activities are disguised or converted and then realised as legitimate assets.

61
Q

Terrorist financing and Transfer of funds regulations 2017, amended 2022

Key provisions of the regulations are?

A
  1. a requirement to have written MONEY LAUNDERING and TERRORIST FINANCING RISK ASSESMENT
  2. implement systems/ policies/ procedures to address money laundering and terrorist financing risks and meet requirements under the regulations.
  3. Adopt appropriate internal controls.
  4. provide staff training.
  5. comply with new customer, enhanced and simplified DD requirements.
  6. comply with requirements relating to politically exposed persons. (PEPs)
  7. ensure appropriate record keeping, policies and procedures.
  8. AML checks must be undertaken to confirm the identify if the proposed purchaser of a property and check the purchaser source of funds by the vendors agent before contracts are exchanged.
  9. to include additional HIGH RISK FACTORS when assessing the need for ENHANCED DD and seek additional monitoring in certain cases eg where there are transactions between parties based in high risk third countries.
62
Q

If you’re an estate agent letting a property over £10,000 pcm what do you have to do?

A

register with HMRC

63
Q

Government guidance ‘Estate Agency business guidance for money laundering supervision’ individuals and business need to remain registered with HMRC…

A

to trade.

64
Q

when do CDD checks need to be undertaken and what types of clients?

A

when undertaking a new sale / letting

you need to do CDD

on LL TT, Vendors and purchasers

65
Q

when are EDD checks needed?

A

when operating in high risk areas, eg high risk countries, or non face to face business relationships.

66
Q

Firms must have policies which identify and scrutinise transactions which are…..(3)

A
  1. complex / unusually large
  2. contain unusual patterns or transactions
  3. are without apparent economic or legal purpose.
67
Q

Tell me about how you carry out CDD?

A
  1. identify the client through an independent source eg driving license, passport.
  2. make reasonable endeavours to identify who the beneficial owners of the client and verify their identity. - look at persons of significant control register on companies house.
  3. for a company - its name , company number and address of the registered office is required.
  4. company - the names of the directors are required unless the company is listed on a regulated market (eg LSE)
  5. find out the purpose and intended nature of the business relationship and proposed funding arrangements where appropriate.
68
Q

When is EDD necessary?

A

whenever there is a high risk

for example a third country or a PEP or PEP family member / business associate.

EDD requires additional monitoring and evidence.

69
Q

whats a PEP

A

politically exposed person

someone who has been entrusted with a prominent public function.

70
Q

Name some other requirements set out in the Terrorist financing and Transfer of funds regulations 2017, amended 2022

A

limit of EUR 10,000 accepted in cash.

ongoing business relationship with the client should be monitored

detailed record keeping is required.

senior member of staff/ board member must be responsible for all compliance.

a nominated (the money laundering reporting officer) must report any suspicions with a suspicious activity report (SAR) to the national crime agency.

a firm need to maintain records for a minimum of 5 years and to report to companies house if there are any discrepancies.

71
Q

PENALTIES

Terrorist financing and Transfer of funds regulations 2017, amended 2022

A
  1. max 14 years in prison or unlimited fine for assisting with money laundering
  2. max 5 years prison or unlimited fine for tipping off someone who is under suspicion or failing to report suspicion.
72
Q

The law on money laundering is always evolving….

A

6th EU anti money laundering directive into the regulations.
(letting agents included now)

73
Q

what are some red flags to spot potential money laundering?

A
  1. inability or unwillingness of parties to provide identity documents.
  2. changes in parties involved in a transaction.
  3. potential loss making, or unusual transactions for a client
  4. payment of fees, purchase or rental money in unusual currencies.
74
Q

UK Government sanctions

Why have wider sanctions been issued?

A

in light of the Ukraine conflict

75
Q

RICS provides guidance on the ‘anti money laundering sanctions update, March 2022’ which provides a reminder about sanctions and estate agents role in enforcing these, including:

A

considering the risks a business as part of your AML procedure, noting that the sanctions list include UK citizens and people who live in the UK.

understanding risk factors and red flags.

using software as part of due diligence if the firm is likely to engage with high risk clients.

76
Q

who do you contact id you client is a possible match on the sanctions list?

A

Office of financial sanctions implementation (OFSI)

for assistance.

77
Q

what is the Proceeds of Crime Act 2002?

A

provides powers for enforcement authorities in the UK to recover in criminal and civil proceedings money and other assets which are deemed to be the proceeds of crime.

UK enforcement authorities have power and right to recover criminal money and other assets.

78
Q

3 main areas of offence in the Proceeds of Crime Act 2002

A
  1. Are you hiding it?
    concealing/disguising/ converting or transferring criminal property.
  2. are you helping?
    arrangements: if you enter into or become concerned in an arrangement which you know facilitates the acquisition, retention, use, control of criminal property by or on behalf of another person.
  3. Have you got it?
    if you acquire use or have possession of criminal property
79
Q

Economic Crime (Transparency & Enforcement Act 20220

A
  1. measures for a beneficial ownership register of overseas entities owning assets in the UK
    (if you are an offshore company but own assets in the UK)
  2. strengthens investigation powers regarding unexplained wealth orders (UWO)
  3. it allows the easier prosecution of those involved in sanctions busting inability or unwillingness of parties to provide identity documents.
80
Q

RICS Professional Statement: Countering Bribery, corruption, money laundering and terrorist financing.

What does it set out?

A

sets out mandatory obligations for RICS members and firms in relation to bribery, corruption…etc.

81
Q

RICS Professional Statement: Countering Bribery, corruption, money laundering and terrorist financing.

Tell me the 3 parts its divided into?

A

mandatory requirement

guidance setting out good practise

supplementary guidance

82
Q

Bribery and Corruption

risk based approach

the three ‘W’s ‘ to ask yourself?

A

who am I acting for?

What are you doing?

why am I being asked to do this!?!?

83
Q

How can you identify the beneficial ownership of a company, partnership or trust?

A

request a recent certificate of incorporation

or

annual return for a company

APC (12 decks)

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