Complaint No CB7049432 [2013] NZREAA 25 (14 February 2013)

Last Updated: 16 February 2014

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

And

In the Matter of Complaint No: CB7049432

In the Matter of Licensee 1

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 14th day of February 2013

Complaints Assessment Committee: CAC20006

Chairperson: Paul Biddington Deputy Chairperson: Ann Skelton Panel Member: Peter Mc Dermott

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. The Licensee is licensed under the Real Estate Agents Act 2008 (the Act) and holds a salespersons licence and was working for the Agency at the time the issue arose.

1.2 The Licensee was retained by the Complainant as a joint selling agent when listing his sections at the Property for sale.

1.3 The complaint relates to the conduct of the Licensee, and in particular, his email to the Complainant on 3 October 2011. In this email the Licensee refers to other agents on the not wishing to market the Complainant’s sections. The Complainant submits that he considers this is a breach of privacy on the part of the Licensee as he clearly discussed the Complainant’s properties with agents not connected with the Agency.

1.4 The complaint was received by the Authority on 29 August 2012 and referred to a Complaints

Assessment Committee (the Committee). The Committee initially considered the complaint on 1

October 2012 and made a decision pursuant to section 79(1) of the Act to inquire into the complaint. The Committee considered further evidence gathered on 17 December 2012.

2. Material Facts

2.1 The Complainant listed the Property with the Licensee, who then worked for the Agency and with Licensee 2 at Agency 2 as joint agents. Both companies were part of the partner group. The Complainant wanted to have the Property listed with a company in multiple locations.

2.2 On 3 October 2011 the Licensee sent an email to both the Complainant and Licensee 2 relating to the listing and the advertising of the Property. The Licensee discussed the price with the Complainant and also suggested he would put a sign on the Property along with a brochure holder. Furthermore, the Licensee mentioned it was a shame that the Property wasn’t being auctioned as the Complainant could take advantage of buyers who were looking at other auctions. The Complainant had wanted both agents to handle the Property, but also retain the right to sell the Property himself. As the Licensee pointed out, it would not be a sole agency if the Complainant wished to do this. The Licensee in the email made the following comment:

“I’ll be frank with you and hopefully you will understand where I am coming from. The word in the marketplace from agents is that most don’t wish to market the sections or even bring buyers and to be honest if Licensee 2 hadn’t approached me I wouldn’t have been chasing you for a new listing. The reasons for this are the price has changed many times in the past 2 years, we had the possibility of an auction (and a Tender) cancelled or changed a few times now – the goal posts keep moving!”

2.3 The Licensee advised on 18 October 2011, by email, that he would be erecting a sign board on

the Property the next day. The Licensee further inquired as to whether there had been any response from the recent ads Licensee 2 had placed in the Property Press.

2.4 On 19 October 2011 the Complainant emailed both the Licensee and Licensee 2, instructing them to withdraw the Property from the market. Later the same day the Licensee emailed the Complainant acknowledging withdrawal, and advised that if any interest is shown in the Property over the upcoming weekend he will contact him.

2.5 The Complainant emailed Licensee 2 at Agency 2 on 22 October 2011 with an explanation for the withdrawal of the Property. The Complainant submitted that the Licensee’s email showed a counter-productive attitude and apparent reluctance to market the Property, and clearly revealed an endemic pervasion of gossip and hearsay within the local office. The Complainant further submitted that information given to the local office was in confidence, and he would have expected more respect for his confidence as a client. Licensee 2 acknowledged the withdrawal of the Property the same day.

2.6 On 23 October 2011 the Licensee emailed the Complainant in response to the email to Licensee

2. The Licensee asks for an explanation of the following:

“Contrary to this agreement, the Licensee’s emails show a counter-productive attitude

and an apparent reluctance to market the properties”.

Also:

“The full text of the Licensee’s emails clearly reveal the endemic pervasion of gossip and hearsay within the local office”.

2.7 The Committee saw no evidence from the Complainant that either of these requests from the Licensee had received a response. Furthermore, the Licensee asked, in the same email, if the Complainant wished to review the marketing of the Property again, closer to Christmas, as the Licensee would be producing a summer brochure by Christmas and organising a 3,000 flyer drop, as the office’s best selling time was from January to March.

3. Relevant Provisions

3.1 A complaint can only be made in relation to alleged unsatisfactory conduct (section 72 of the

Act) or alleged misconduct (section 73 of the Act).

3.2 Section 72 of the Act 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.

3.3 Section 73 of the Act provides:

73 Misconduct

For the purposes of the 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.

4. Discussion

4.1 The Committee notes that there was a lengthy delay in making the complaint about the conduct of Licensee and the reasons given by the Complainant for the delay was ill health and the purchase of a house. However, the time between the date of the conduct and the complaint being received by the Authority was considerably long, almost a year. The Complainant alleges in his complaint that the Licensee committed a clear breach of privacy in that he discussed the Property with other agents without the Complainant’s agreement or knowledge. The question must be asked, did the Complainant give a firm direction to the Licensee at the time of listing, or any other time afterwards prior to the complaint, that he was not to discuss the Property with other agents, other than within the two offices of the joint selling agents? The Licensee denies that any such instruction was given to him at any time. Such an instruction would have been unusual, as the reason for giving a listing to an agency is they have the professional expertise to bring as much marketing exposure to the Property as possible, publicly and with other agents, in order to eventually bring about a sale. To suggest that the Licensee breached privacy by discussing the Property with other agents does not seem credible to the Committee. Since

2008, the Complainant had already listed the Property with nearly all agencies in the area, so many of the agents were familiar with the Property and the owners. That was one of the reasons the Complainant turned to Agency 2 to list the Property, as most of the agencies on the locally had had the Property listed at one time or another.

4.2 The Committee is of the view that the Licensee’s email was not phrased as well as it could be, nevertheless it was not rude, and was very much to the point. The Complainants were reminded that the price of the Property was frequently changing in the last two years and that was why other agents did not want to market the Property or bring buyers. The Complainant’s response to this assertion was that the price had been gradually reducing in an effort to meet the market.

4.3 As mentioned, the Licensee’s email was very much to the point and does not appear to show a counter-productive attitude. On the contrary, the Licensee showed a willingness towards the selling of the Property as long as a sole agency existed. The Committee does not see this as unreasonable, as the Complainant had not offered to contribute to any marketing costs and the Licensee wanted to be certain that the Complainant did not sell the Property privately, as the Licensee’s company was paying part of the costs of marketing. The Committee finds it difficult to see how the Complainant came to the conclusion that the Licensee’s emails “clearly reveal the endemic pervasion of gossip and hearsay within the local office”. There appears to be nothing in

his emails that reveal anything suggesting gossip and hearsay within the local office.

4.4 The Committee is of the view that, on the balance of probabilities, the Licensee did not discuss the Complainant’s Property with other agents, other than Licensee 2 of Agency 2. The Complainant offered no other evidence, other than the Licensee’s email and had chosen to interpret the email in only one way.

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 the complaint. In accordance with section 90(1) of the Act, the Committee conducted the hearing on papers, and pursuant to section 90(2) the Committee’s determination was made on the basis of the written material before.

5.2 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 to the purpose of the Act by 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

Paul Biddington

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 14 February 2013