Investment property consultants
When referring to 'investment property consultant' or 'property consultant' we mean any person who advises clients on investing in property, whether through a seminar, website or through other means, and who may or may not be a licensed real estate agent.
Direct ownership of property is not a financial product under the Financial Advisers Act, but in some cases, the requirements of the Act will still apply to investment property consultants and property consultants. This will depend on:
Advertising and the scope of services offered
If a property consultant offers to for example, 'design a comprehensive investment plan' or 'take care of all of your investment goals' the requirements of the Act may apply. The offer might be in an advertisement, in a seminar, or to a potential customer.
Only an Authorised Financial Adviser can provide an 'Investment Planning Service' under section 11 of the Act. This is where an adviser offers to design a plan that is based on an analysis of a person's current and future overall situation and identifies investment goals then provides recommendations on how to realise those goals. There is an offence of holding yourself out to be an investment planner without being an AFA who is specifically authorised to provide investment planning services.
FMA will also look at advertising that suggests investments other than property will be considered by a property consultant. This type of misleading advertisement may give rise to an offence under the Act.
Type of investment property offered
Some property investments are category 1 products under the Financial Advisers Act and generally, require consultants to be authorised to provide advice to clients. These are investments that are more complex than where a person simply owns a house or a piece of land directly. Direct ownership in property is not a financial product under the Financial Advisers Act.
Securities like property investment funds and certain contributory mortgage schemes are category 1 products as are land investment products. Land investment products are essentially schemes that involve an interest in land, are not otherwise category 1 products, and where the investor has no day to day control over the land involved. See the legal definitions of securities and land investment products.
Exemptions for real estate agents
The exemption for real estate agents providing services in the ordinary course of business is only available to licensees under the Real Estate Agents Act. Real estate agents need to carefully consider whether any services they provide that include investment advice or planning could sensibly be considered as part of a real estate agent's job. Advice on complex property schemes or investment plans, for example, should be provided by AFAs who can conduct a proper suitability analysis for their clients.
Giving recommendations and opinions
Recommending or giving an opinion that a person should sell or vary a financial product, for example, specific shares or KiwiSaver, to purchase a house is caught by the Financial Advisers Act, as financial advice also includes advice on the disposal or variation of a financial product. The FMA will look at situations where clients are being advised to dispose of financial products in order to invest in property.
In addition, where there is an analysis by a property consultant that compares the merits of financial products with property, it is likely to be financial advice.
It is an offence for financial advice to be provided by entities other than registered entities, or personalised financial advice to be provided by individuals who are not personally registered as financial advisers (or are QFE advisers).