Complaint No CB7187591 [2013] NZREAA 103 (10 June 2013)

Last Updated: 3 May 2014

In the Matter of Part 4 of the Real Estate Agents Act 2008

And

In the Matter of Complaint No: CB7187591

In the Matter of Licensee

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 10th day of June 2013

Complaints Assessment Committee: CAC20002

Chairperson: Patrick Waite Deputy Chairperson: Deirdre McNabb Panel Member: Barrie Barnes

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1. The Complainant has complained to the Real Estate Agents Authority (the Authority) about the conduct of the Licensee who is licensed under the Real Estate Agents Act 2008 (the Act). He holds a salesperson’s license and is working for the Agency. The Complainant has included in her complaint Mr E, another Licensee who also works as a salesperson at the Agency. The Committee’s decision in regard to Mr E is reported separately.

1.2. The Complainant retained the Agency as her real estate agent when listing her property.

1.3. The complaint is about the conduct of the Licensee and Mr E in September and October 2012 whilst the Complainant’s property was listed with the Agency. The complaint alleges Mr E did not provide a copy of the REAA booklet and the listing agreement which included an agreement to reimburse 50% of the marketing fees.

1.4. The Complainant also passed on a prospective purchaser’s details; who she alleges Mr E did not adequately follow up on. The Complainant is concerned that the Licensee and Mr E advertised her property in the wrong price bracket, which affected the bids received at auction, resulting in the property being ‘passed in’.

1.5. The Authority referred the complaint to the Complaints Assessment Committee (the

Committee). Pursuant to section 79(1) of the Act, the Committee considered the complaint on

18 December 2012 and made a decision to enquire further.

1.6. The Committee invited the Licensee to provide a response to the complaint and this was received on 29 January 2013. The Complainant was offered an opportunity to respond to the Licensee’s response and has provided detailed comments.

1.7. Having satisfied itself that it had completed its inquiry into the complaint, the matter was considered by the Committee on 7 May 2013. The hearing was conducted on the papers pursuant to section 90(2) of the Act and the Committee made its determination on the basis of the written material before it.

2. Material Facts

2.1. In considering the information supplied by the Complainant, the Licensee and Mr E the Committee is satisfied that the Licensee had a limited involvement in the marketing of the property. It follows that his involvement in relation to issues raised in the complaint has been confined to issues 2 and 4 only.

2.2. Issue 1: The Licensee failed to supply documentation, namely the REAA booklet and a copy of the Listing Agreement. The Committee is satisfied that the Licensee did not have any direct involvement in this aspect of the complaint nor was he involved in the issuing and completion of the Listing Agreement.

2.3. Issue 2: “Interfering with the auction process by listing my property on their website without

disclosure and transparency as to the bracket they were listing it for.” The Complainant became

concerned at the composition of the website listing of her property by the Agency particularly in relation to the price range which she believed would be detrimental to the sale process in that it placed her property in the $700,000 to $800,000 category which was significantly below her expectations and understanding from her discussions with Mr E. The Agency had appraised the property at between $880,000 and $980,000. The Complainant believes that the incorrect listing resulted in an unsuccessful auction outcome. It would seem that it took some time before the Agency responded with an explanation for the way they had marketed the property. They appear to have believed that they had correctly listed the property within the correct price range. It is clear from the Licensee’s submission that the price search criteria for the property was in fact incorrect and different to what they initially thought. The Licensee became involved when this issue was raised and incorrectly, as it has turned out, responded to the Complainant’s enquiry by stating in an email on 15 October 2012 that the search criteria was $850,000 to $950,000 when in fact it was $700,000 to $800,000. The price range was corrected after the auction but the Complainant decided at that point to withdraw the property from the market and cancel her listing with the Agency. The property has since sold through another Agency for $993,000.

2.4. Issue 3: Failing to follow up adequately on a prospective buyer. The Committee is satisfied that the Licensee was not involved in this aspect of the complaint.

2.5. Issue 4 “Accusing me of manipulating data on their website’ before taking a screenshot pertaining to her concern as to the correct listing of her property. Enquiries from the Complainant as to the reason why the listing range was lower than expected resulted in a response from the Agency’s office administrator who incorrectly as it turned out maintained that the price range was correct i.e. set at $850,000 to $950,000. The Complainant interpreted from the response an accusation that she had manipulated the information and incorrectly read the website listing.

2.6. The Licensee has admitted that the Agency had made a mistake with the listing range but believes that the Complainant may have misinterpreted the emails that tried to explain how the screen shot could show search criteria of $700,000 to $800,000 but be consistent with the price range which the Agency thought, at that time, was loaded on their website i.e. $850,000 to

$950,000. He does not believe that the emails attached are “rude nor do they allege that she had manipulated the screen shot. They were merely intended to explain how this could occur.”

3. Relevant Provisions

3.1. The Committee examined the information supplied by the Complainant in her written complaint to determine whether section 72 or section 73 of the Real Estate Agents Act 2008 (the Act) applied i.e. was there evidence which would indicate that the Licensee could be considered guilty of unsatisfactory conduct (section 72) or misconduct (section 73).

Section 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 of 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 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.

3.2. Real Estate Agents Act (Professional Conduct and Client Care) Rules 2009

Rule 6 Standards of professional conduct

6.1. An agent must comply with the fiduciary obligations to his or her client arising as an agent

6.2. A licensee must act in good faith and deal fairly with all parties engaged in a transaction.

Rule 9 Client care and dealing with customers

9.1. A licensee must act in the best interests of a client and act in accordance with client instructions.

9.2. A licensee must not engage in any conduct that would put a prospective client, client, or customer under undue or unfair pressure.

9.6. Unless authorised by a client, through an agency agreement, a licensee must not offer or market any land or business, including putting details on any website or by placing a sign on the property.

4. Discussion

4.1. The Committee is satisfied that the only aspects of the complaint in which the Licensee was directly involved were related to the website. The other concerns raised in the complaint have been responded to by Mr E.

4.2. Listing of the property on the website without disclosure and transparency as to the bracket they were listing it for: The Licensee has admitted that the property was advertised in an

incorrect price bracket of $700,000 to $800,000 instead of $850,000 to $950,000. He maintains that when he responded to the Complainant about this he fully believed that the search criteria was in fact the higher value as that is what he was advised by his Head Office who had investigated the enquiry from the Complainant. Although puzzled as to how such an error could occur recognizing that the Agency must have significant listings on their website and as a result be experienced in correctly loading information, the Committee accepts the admission from the Licensee that he relied on the advice he received from the Agency’s IT help desk which has proved to be incorrect.

4.3. Accusing the Complainant of manipulating data on the Agencys website before taking a screenshot pertaining to the pricing range listed: Although the Complainant believes that Ms. D’s email to her solicitor alleges that she did manipulate data, the Committee could not identify from the information available to it a direct accusation of this nature being made. However given that the Licensee has admitted that the Agency had made a mistake with the listing range then the Complainant was correct with the screenshot that she sent. The Licensee believes that the Complainant may have misinterpreted the emails that tried to explain how the screen shot could show search criteria of $700,000 to $800,000 but be consistent with the price range which the Agency thought, at that time, was loaded on their website i.e. $850,000 to $950,000. He does not believe that the emails attached are “rude nor do they allege that she had manipulated the screen shot. They were merely intended to explain how this could occur.”

5. Decision

5.1. After conducting an inquiry into the complaint, pursuant to section 89(1) of the Real Estate Agents Act 2008 (the Act), the Committee held a hearing with regard to that complaint. In accordance with section 90(1) of the Act, the Committee conducted the hearing on the papers, and pursuant to section 90(2) the Committee’s determination was made on the basis of the written material before it.

5.2. Although the Licensee has certainly to take responsibility for shortcomings in the performance of the Agency, particularly in relation to issues around the website listing of the property, the Committee does not believe that his actions reach the level that could be considered as unsatisfactory conduct or indeed misconduct.

5.3. The Committee have concluded that there is insufficient clear evidence for it to conclude that the Licensee could be considered guilty of unsatisfactory conduct in terms of sS72 or misconduct in terms of S73. Accordingly the Committee has determined under section 89(2)(c) of the Act to take no further action with regard to the complaint or any issue involved in the complaint.

6. Publication

6.1. One of the Committee’s functions pursuant to section 78(h) of the Act is to publish its decisions.

6.2. Publication gives effect the purpose of the Act of ensuring that the disciplinary process remains transparent, independent and effective. The Committee also regards publication of this decision as desirable for the purposes of setting standards and that it is in the public interest that the decision be published.

6.3. The Committee directs publication of its decision, but omitting the names and identifying details of the complainant (including the address of the property), the licensee and any third parties in the publication of its decision.

6.4. The Authority will publish the Committee’s decision after the period for filing an appeal has ended. Any application for an order preventing publication must be made to the Real Estate Agents Disciplinary Tribunal (the Tribunal).

7. Right of Appeal

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

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

7.3. Further information on filing an appeal is available by referring to the Guide to Filing an Appeal

at www.justice.govt.nz/tribunals.

Signed

Patrick Waite

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 10 June 2013