C - Complaint No: CA2641989 [2010] NZREAA 115 (21 September 2010)

Last Updated: 4 August 2012

Complaints Assessment Committee - Decision to take no further action

The Complaint

This is a complaint by Ms H against Mr C. Mr C is a licensee under the REAA 2008. He holds a salesperson’s licence and works for XYZ.

The licensee operates as a property manager for XYZ clients and was responsible for a property occupied by Ms H's son.

Ms H complains that Mr C displayed the property formerly occupied by her son on Trade Me and other property websites with an incorrect address that could have been misconstrued as that of an adjacent property that she and her husband owned. She also complains that, without permission, he used personal photographs of her son’s possessions to promote the property for tenancy. Finally she complains that he was abusive to her on the phone when she sought to rectify the position with him and that he made false accusations that the property was being used to manufacture P when her son lived there.

Material Facts

Mr C is the property manager appointed to let ―the property‖ where the son of the complainant had resided for some time prior to this complaint being made.

When the property was advertised to let, the address was incorrectly described as ―adjacent property‖. Ms H and her husband are the owners of ―adjacent property‖. When she viewed the advertisement placed by Mr C and the photographs accompanying that advertisement she saw that they depicted a number of possessions belonging to her son who had formerly resided at the property. She made a phone call to Mr C on 23 January 2010 to bring this error to his attention and ask him to remove the photographs in question.

Ms H says that the first call was made by her husband and received by a call centre , and that they then received a text message asking which property they were interested in. At this point she says that her husband rang Mr C. She says that, after explaining to Mr C that he was the parent of the previous tenant of the property, Mr C was abusive to the point that her husband hung up the phone before the discussion was completed. Ms H decided to follow up the call herself and when she connected with Mr C she says that he was abusive to her. She says that he accused her of harassing him, threatened to have bailiffs/others break into the adjacent property (owned by Ms H and her husband) and remove its contents to satisfy monies owing by her son, and alleged that P had been manufactured at the advertised property when her son had been residing there. She said he was aggressive and complained that her son had left the property very dirty. After this exchange Ms H contacted the police who advised her to tell her own tenants to ring 111 if there was any attempt made to break in or damage the property that she and her husband owned.

In response Mr C advised that:

• The son of Ms H had been a tenant in the relevant property for over 5 years.

• Ms H had sought to become involved in issues regarding the tenancy previously and he had been instructed by her son on two occasions that she was not to have any involveme nt and that Mr C was to have nothing to do with her.

• Mr C had dealt with issues with the tenant of the property over unpaid rent on a number of occasions. Whilst the relevant arrears were brought up to date on a number of occasions these problems were ongoing. Mr C says that he sought to find a resolution for them with the tenant. Termination of the tenancy was discussed and Mr C says that the tenant was

anxious to ensure that any termination would end on a friendly note so that there was no adverse record against him. It is in this context that Mr C says he sought the tenant's permission to take photographs to be ready to promote the property if the tenancy was to be terminated. He confirms that he took these photographs under the supervision of the tenant and with the owner present. The tenant denies giving permission for the photographs to be taken or used for marketing.

• The tenant again failed to keep up his agreed payments and Mr C applied to the Tenancy

Tribunal to evict him. A hearing was scheduled for 11 January 2010.

• On 23 December 2009 Mr C received a phone call from a person identifying herself as the tenant's mother offering to pay some of her son's debt in order to defer termination of the tenancy. Mr C put this proposition to the owner who agreed to the arrangement. On 24

December 2009 no money was received and Mr C contacted the tenant about the lack of

payment. The tenant advised that he did not want his mother to pay his debt. No further money or communication was received from Ms H or the tenant and the tenant gave notice of termination of the tenancy on 29 December 2009.

Subsequently the REAA interviewed the tenant to clarify the events described by the parties. He reiterated that he had not given permission for the photographs that were taken by Mr C and thought they may have been taken to record the extent of his possessions.

He advised that he was not present to witness the exchanges that Ms H complains of that took place between Mr C and Ms H or her husband, but says that she spoke to him about them. He says she was emotional about them and wanted him to ask Tenancy Services to consider the case. He did not want to do that because he wanted to put the matter behind him. In relation to the allegation of P manufacture, he noted that Mr C raised that with him on the day of final inspection before he moved out. He thought it was probably because of the chemicals he had used to clean a particular room and the Rug Doctor machine that he had recently used to clean the carpet in that room. He noted that their exchange became negative and ended with each of them yelling at the other and parting unhappily. He was unable to comment on what was said by Mr C to Ms H because he had only heard what his mother had told him and he indica ted that he did not want to get involved in that.

Relevant Provisions

Section 72 of the Real Estate Agents Act 2008 provides:

72 Unsatisfactory conduct

For the purposes of this Act, a licensee is guilty of unsatisfactory conduct if the licensee carries out real estate agency work that –

(a) falls short of the standard that a reasonable member of the public is entitled to expect from a reasonably competent licensee; or

(b) contravenes a provision of this Act or of any regulations or rules made under this Act; or

(c) is incompetent or negligent; or

(d) would reasonably be regarded by agents of good standing as being unacceptable.

Section 73 of the Real Estate Agents Act 2008 provides:

73 Misconduct

For the purposes of this Act, a licensee is guilty of misconduct if the licensee’s

conduct –

(a) would reasonably be regarded by agents of good standing, or reasonable members of the public, as disgraceful; or

(b) constitutes seriously incompetent or seriously negligent real estate agency work; or

(c) consists of a wilful or reckless contravention of—

(i) this Act; or

(ii) other Acts that apply to the conduct of licensees; or

(iii) regulations or rules made under this Act; or

(d) constitutes an offence for which the licensee has been convicted, being an

_{offence that reflects adversely on the licensee’s fitness to be a licensee.}

Discussion

The CAC considered the material provided by Ms H, the response from Mr C and the content of the discussions with the tenant.

In relation to the photographs that had been taken at the property, it could not be established whether or not permission had in fact been given for them to be taken. The tenant denies permission being granted, but the landlord and Mr C say that it was given. The CAC considered that it was not unusual for a property manager to take a number of photographs when viewing a tenancy, for example to establish the state of repair of a property and as a basis for comparison to its state at other times. It noted that there was no complaint made by the tenant in relation to these photographs, rather the complaint about their use was brought about by his mother. It also noted that there were more photographs displayed than might usually be expected, but that it was a large property - some 20,000 square feet. It also noted that when Mr C was asked to remove the photographs, that removal came about promptly.

In relation to the allegations made by Ms H, the tenant was unable to corroborate much of what she said because he had not been present during the relevant exchanges and she was unable to confirm his version of events given that she was not present during those occasions. The CAC noted that the tenant appeared anxious to support his mother without overstepping the mark to confirm matters that he was not privy to.

In relation to the suggestion made about the manufacture of P in the premises, it is difficult to ascertain how serious that suggestion was. The CAC noted the heightened awareness that property managers and salespeople have in relation to the possible manufacture of P in light of its prevalence. For this reason it was considered understandable that any property manager would be very alert to such a possibility because of the problems that would be associated with such an activity. A failure to pay attention to such a possibility could have disastrous consequences for a property manager and a landlord. The tenant acknowledged that the room had a strong smell, probably from cleaning fluids and the use of a carpet cleaning machine, and so the CAC did not consider it unreasonable for Mr C to raise what would have been an uncomfortable issue and he had a duty to protect the interests of his client in doing so.

With reference to the abusive phone calls, the tenant was unable to provide further support in relation to that allegation and he notes that his mother may have become emotional about the exchanges that took place. The CAC considered that there is insufficient evidence of unsatisfactory discussions to take this point further.

In relation to the address of the property being incorrectly transposed, the CAC found nothing deliberate about this mistake made on the part of the property manager and could see no logical motivation for deliberately marketing the property that way.

Finally when considering the totality of the conduct of the parties, the CAC noted that the tenant had been behind in rent on a number of occasions and by the time he was in the Tenancy Tribunal he was significantly behind in the payments that were due. It considered that the property

manager on behalf of the owner had sought to resolve the position constructively and had not been unreasonable in dealing with him. It did not consider he had acted inappropriately in discussing with the tenant options for him getting the money he needed to meet arrears.

The conduct that the complaint relates to is property management work rather than real estate agency work and as such can only fall within the jurisdiction of the REAA if it amounts to misconduct. After taking all of the information available to the CAC and the circumstances of the parties into account, in this case the CAC found that the conduct complained of was not sufficient to justify a conclusion that misconduct had occurred in terms of section 73 of the Act. Accordingly it finds that it has no jurisdiction to take steps against Mr C in respect of this complaint and will take no further action in relation to it.

Decision

The CAC finds that the conduct complained of relates to property management work rathe r than real estate agency work. It finds that the conduct does not amount to misconduct in terms of section 73 of the Act and accordingly that it has no jurisdiction to take any further action in relation to the complaint.

Publication

The Committee directs that this decision is to be published.

Right of Appeal

A person affected by a determination of a Complaints Assessment Committee may appeal to the Disciplinary Tribunal against a determination of the Complaints Assessment Committee within 20 working days after the date of this notice.

Appeal is by way of written notice to the Tribunal. You should include a copy of this Notice with your Appeal.

Further information on lodging an appeal is available by referring to the Guide to Lodging an

_{Appeal at www.justice.govt.nz/tribunals.}

Signed

Deirdre McNabb

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 21 September 2010