The lawyer as a Real Estate Agent
Abstract: This thesis addresses the exception regarding lawyers in the Swedish fastighetsmäklarlagens §5 and aims to understand the background and meaning of the exception. Further the thesis addresses whether the main purpose of the estate agents act, the protection of consumers, is satisfying when a lawyer is practicing real estate agency. The study is based on the Swedish fastighetsmäklarlagen and aims to investigate the application of the act on both real estate agents and lawyers as they convey real estate. In order to clarify and understand the application of the law and to receive a view of the specific characteristics of each occupation, the occupational roles are investigated in detail and compared. The act distinguishes between conveying real estate professionally and conveying on single occasions. The demarcation of the concept determines whether the person conveying real estate is obliged to follow fastighetsmäklarlagen or not. A lawyer that is professionally conveying real estate should, according to Sveriges Advokatsamfund, practice the intermediary within the lawyer’s activity. Since professional ethics in practicing real estate agency and practicing law is incompatible the lawyer is obliged to make an assessment of what is professional intermediary within and outside the lawyer’s activities. The study points out that the boundary should be clarified in order for the lawyer to facilitate the assessment. The exception in the Swedish fastighetsmäklarlagen is important if a lawyer is professionally conveying real estate within the lawyer’s activity, but if the intermediary is solely within the lawyer’s general activity the exception has no function. A lawyer is suitable to pursue only those activities that are included within the scope of legal services, including intermediary corresponding to advocacy and not professional intermediary. For those situations that can be listed as professional intermediary, a real estate agent should be hired. Consideration whether the §5 should be changed or removed is required.
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