A real estate agent who sued the Real Estate Board of Jamaica, REB, over conditions to which she was subjected in order to qualify for a salesman licence has lost her bid to challenge an adverse Supreme Court ruling that sided with the regulator.
Two years ago, Mekelia Green applied for the licence and completed the requisite course aligned to it, but then proceeded to advertise her services before the REB issued her permit.
REB was alerted to her activities from social media posts by Green, particularly on Instagram.
At a hearing convened by the board in May 2022, which Green attended with her lawyer, the real estate practitioner described her actions as a momentary lapse in judgement. For jumping the gun, the REB, which is the regulator for the real estate sector, inclusive of realtors, developers and brokers, mandated that Green should undertake two continuing professional development courses – Social Media Marketing for Real Estate Professionals: Fundamentals of Social Media Marketing; and the Real Estate (Dealers and Developers) Act – as further requirements of being granted the licence.
The agency however passed no judgement on whether Green had actually been engaged in the practice of real estate without a licence in the period.
In court filings, REB also argued that the conditions were not imposed as a disciplinary measure. Instead, the regulator argued in its submission that they were “beneficial to Green for the proper and better performance of her duties as a newly registered real estate salesman”.
Green was eventually issued with a certificate of registration as a salesman after completing the social media course, then granted her licence three months later, in October 2022, after completing the dealers and developers course.
However, she also sued the REB in the Supreme Court regarding the imposition of the conditions but lost the case in a decision handed down in April of this year. The judge agreed with the REB’s position in an affidavit submitted by Senior Inspector of the REB’s inspectorate department, Cresford Brown, that in relation to real estate salesmen, the law allows the board to set “other written examinations” in addition to the required Real Estate Salesman course.
Last week, October 25, the appeal court sided with the judge’s decision in denying Green permission to appeal Justice Tara Carr’s ruling.
“It is the first decision which looks at imposition of conditions of registration and the reasonability of it,” said REB’s attorney, Oshane Vacciana. “From that perspective it is precedent-setting,” he told the Financial Gleaner.
In refusing Green’s request for permission to appeal, the appellate panel, comprising Justice Nicole Foster-Pusey, Justice David Fraser and Justice Vivene Harris, ruled that a challenge to Carr’s ruling was unlikely to succeed, given that REB had the right to set reasonable conditions for the granting of registration and had made no claim that Green practised real estate business without a licence.
The panel also held that the real estate practitioner had an alternative remedy under the Real Estate (Dealers and Developers) Act, REDDA, which was not utilised. The referenced Section 22 of REDDA allows licence applicants to mount challenges against the decisions of the REB directly with the Court of Appeal.
“Given that the applicant has satisfied the conditions imposed by the board and is registered and licensed as a real estate salesperson, an appeal would be a purely academic exercise,” the panel ruled.
“As a result, the court came to the clear conclusion that the high threshold required for applications of this nature was not met in this case, and that the application for permission to appeal should accordingly be refused.”
Green was represented in the suit by attorney Gavin Goffe of the law firm Myers, Fletcher & Gordon.