Regulating Licensees
Licensees are required to comply with certain requirements set out in the Property Management Services Ordinance (PMSO) and the Property Management Services (Licensing and Other Matters) Regulation. If a licensee fails to comply with a requirement, he may commit a disciplinary offence.
If the Property Management Services Authority (PMSA) has reasonable cause to suspect that a licensee has committed a disciplinary offence or the licensee no longer meets any of the prescribed criteria for holding the licence, the PMSA may conduct an investigation.
If, at the conclusion of an investigation, the PMSA is satisfied that there is evidence that tends to establish the matter concerned, the PMSA may decide that a hearing be conducted. If, at the conclusion of a hearing, the PMSA is satisfied that the matter is established, it may discipline the licensee.
Disciplinary Offences
Under section 4 of the Property Management Services Ordinance (PMSO), a licensee commits a disciplinary offence if:-
- the licensee commits misconduct or neglect in a professional respect;
- the licensee contravenes a condition imposed on the licensee’s licenceNote;
- the licensee contravenes a requirement in the PMSO that is applicable to the licensee;
-
the licensee, without reasonable excuse, fails to-
a. comply with a requirement of a notice issued by an investigator under section 21(2); or
b. comply with a summons in connection with a disciplinary or appeal hearing under section 25(1)(b) or 37(1)(b) respectively; - the court determines that the licensee has contravened a requirement in the Building Management Ordinance (Cap. 344) or a deed of mutual covenant that is applicable to the licensee; or
-
the licensee is convicted in Hong Kong or elsewhere of a criminal offence that-
a. may bring the profession of property management services into disrepute; and
b. is punishable with imprisonment (whether or not the licensee was sentenced to imprisonment).
Under section 5 of the PMSO, the Property Management Services Authority (PMSA) may issue codes of conduct containing any practical guidance that it considers appropriate for the purposes of section 4.
Investigation may be conducted by the PMSA if it has reasonable ground to suspect that a licensee has committed a disciplinary offence or the licensee no longer meets any of the prescribed criteria for holding the licence.
Note: Under the PMSO, the PMSA may attach conditions to a PMC licence and PMP licence.
Requirements Applicable to Licensees
Licensees are required to comply with certain requirements set out in the Property Management Services Ordinance and the Property Management Services (Licensing and Related Matters) Regulation (LRMR). If a licensee fails to comply with a requirement, he may commit a disciplinary offence and may be subject to investigation and disciplinary action by the Property Management Services Authority (PMSA).
The requirements under the regime include the following:
- conditions imposed on licence;
- provision of certain information by property management companies (PMCs) to clients; and
- notifying the PMSA of changes of prescribed matters.
The prescribed conditions that may be imposed on a property management company licence and property management practitioner licence are set out in the LRMR.
Information that must be provided by PMCs to their clients concerns:
- conflict of interests;
- contracts entered into for or on behalf of clients;
- documents relating to management of property as may be specified by the PMSA from time to time.
Complaints Against Licensees
Complaints may be lodged against a licensee who is suspected to have committed a disciplinary offence or no longer meets any of the prescribed criteria for holding the licence (“non-compliance”). The Property Management Services Authority (PMSA) may conduct an investigation in accordance with the Property Management Services Ordinance (PMSO) if it has reasonable cause to suspect that there is non-compliance.
A complaint may be physically lodged at the office (as set out below) of the PMSA (preferably by calling the PMSA (3696 1111) in advance to arrange for a meeting) or may be made in writing to the PMSA by post (Unit 806-8, 8/F, Dai Sing Financial Centre, 248 Queen’s Road East, Wan Chai, Hong), fax (3696 1100) or email ([email protected]).
A complainant has to provide his / her name, Hong Kong identity card number, correspondence address and telephone number so that the PMSA may contact him / her and, where required, issue a summons for the complainant to appear in a disciplinary hearing to testify. A complainant should provide the details of the complaint, including the date of the incident in question, the address of the relevant property, and the identity of the relevant person(s) involved and the property management company concerned. To assist the PMSA to conduct a preliminary assessment on the complaint, the complainant is encouraged to complete and submit the Complaint Form. For other matters to which a complainant should pay attention, please refer to the Notice to Complainant.
The PMSA will conduct a preliminary assessment in respect of the information provided by the complainant. If the matter falls within the jurisdiction of the PMSA, an investigator appointed by the PMSA will conduct the investigation. The PMSA will, within 10 working days after the receipt of the complaint, invite the complainant to attend at the PMSA office to give a detailed statement.
The PMSA will treat all the information received in strict confidence (regardless of whether it is provided by the complainant, the subject under complaint or the witness). However, if the investigation so warrants and for fairness sake, the PMSA may, with the consent of the complainant, disclose the identity of the complainant and will inform the subject under complaint and the witness, if any, of the details of the complaint. The investigator will set out, in writing, the complaint and will request the subject under complaint to respond.
The PMSA may only handle a complaint under the PMSO whereby the subject under complaint was and acted as, at the time when the suspected non-compliance occurred, a licensee. In other words, if the subject under complaint was not a licensee at the material time, the PMSA has no jurisdiction under the PMSO to investigate. In addition, the PMSA may consider not conducting an investigation under the PMSO if —
- The complaint is misconceived or lacking in substance (for example, the complaint is based on mere speculation);
- The matter complained of is outside the jurisdiction of the PMSA (for example, the matter of complaint is a mere contractual dispute);
- The non-compliance has occurred for more than 12 months, and the complainant fails to give a reasonable explanation note 1for the delay in lodging the complaint;
- The complainant is not willing to testify in the disciplinary hearing and/or refuses to complete the Complaint Form and/or refuses to attend a meeting with the PMSA to give a detailed statement;
- The matter complained of is also the subject of a legal proceeding note 2; or
- The complaint is lodged anonymously note 3.
In general, the PMSA aims to complete an investigation conducted in accordance with the PMSO within six months after the investigation has commenced and will inform the complainant of the progress of the investigation in writing every three months.
If the subject under complaint is not a licensed PMC or a licensed PMP or the matter under complaint occurred before the relevant PMC or PMP has held a licence, the PMSA cannot conduct an investigation or take disciplinary action under the PMSO. However, the PMSA will try its best to provide assistance to the complainant, including making enquiries with the relevant PMC or PMP, relaying the complainant’s concern to them and encouraging them to follow up on relevant matters and enhance communication with their clients in order to ease their concerns or to seek consensus so as to resolve the complaint. In general, the PMSA will try its best to complete follow-up actions and inform the complainant of the result in writing within 10 working days after receiving the complaint. If the complaint is complicated, more time may be required to complete follow-up actions and in such case the PMSA will provide an interim reply to the complainant in writing within 10 working days after receiving the complaint.
Note 1: A reasonable explanation may include that the complainant was not in Hong Kong at the material time.
Note 2: The PMSA may consider deferring an investigation pending the outcome of a legal proceeding.
Note 3: If a complaint is lodged anonymously, the PMSA may decide whether or not to handle the complaint and, in any event, will not inform the complainant of its decision, as well as the progress and result of any investigation conducted.
Disciplinary Proceedings
The Property Management Services Authority (PMSA) may conduct an investigation if it has reasonable ground to suspect that a licensee has committed a disciplinary offence or the licensee no longer meets any of the prescribed criteria for holding the licence. If, at the conclusion of an investigation, the PMSA is satisfied that there is evidence that tends to establish the matter concerned, the PMSA may decide that a hearing be conducted. If, at the conclusion of a hearing, the PMSA is satisfied that the matter is established, it may discipline the licensee. Under the Property Management Services Ordinance, the PMSA may make any of the following orders against the licensee:
- verbal warning or written reprimand;
- fine;
- imposing a condition on the licence;
- varying a condition of the licence;
- suspending the licence; or
- revoking the licence.
Disciplinary records are set out in the register which is accessible to the public.
A person aggrieved by an order made by the PMSA may lodge an appeal against the order. The appeal will be heard by an appeal tribunal composed of members of the Appeal Panel which is appointed by the Secretary for Home Affairs. An appeal tribunal may confirm, vary or reverse any decision, finding or order to which the appeal relates.