Complaint No C00218 [2013] NZREAA 298 (17 December 2013)

Last Updated: 17 September 2014

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

And

In the Matter of Complaint No: C00218

In the Matter of Licensee

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 17th day of December 2013

Complaints Assessment Committee: CAC20008

Chairperson: Ellen Ryan

Deputy Chairperson: Graham Rossiter

Panel Member: Joan Harnett-Kindley

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). He holds a salesperson’s licence and is working for the Agency.

1.2 The Complainant states her and her husband’s property (the Property) was in the possession of the mortgagee at the time this complaint arose and they were still occupying the Property. She alleges the Licensee arranged for the lawns on the Property to be mown without their knowledge or consent; that the Licensee at the time did not have a listing agreement with the mortgagee to market the Property and should have advised them or let them know prior to carrying out the mowing. The Complainant also states they had set aside the area that was mown by the Licensee so that a hay mower could be brought into make hay and obtain income which was now lost.

2. Material Facts

2.1 On 24 November 2012 the Complainant observed two men with lawn mowers mowing on their land and subsequently found out they were instructed to do so by the Licensee. The Licensee did not inform them he was marketing the land. He did not come and see them until 28

November 2012 to explain the mowing. In response to their question on whether he had a listing agreement with the mortgagee, he said he did not. He said he did come to their office but no one was there. The Complainant states this is not acceptable and that he should have waited to reach them before starting any mowing, given the Complainant had already started mowing and deliberately left one block with the intention to bring in a hay mower to make hay to sell.

2.2 In response the Licensee states that he was contacted by the mortgagee, who was the vendor of the property, on 16 November 2012 to obtain a quote to mow the lawns as he wanted the Property to be presentable for marketing. On obtaining the quote the mortgagee then instructed him to proceed with arranging for the mowing to be done. The mowing contractor advised him he was not able to do the mowing until 1 December 2012, which was acceptable in allowing him time to notify the Complainant that he would be marketing the Property for the mortgagee. The Licensee advises that he was away for a short time and on his return noticed the lawns had been mown. The mowing contractor then informed him that he had been able to mow the lawns a week earlier. On 28 November 2012 the Licensee went to see the Complainant and her husband who were clearly unhappy about not being informed about the mowing. He apologised to them and stated he would pay for the mowing account himself. A copy of the listing agreement between the mortgagee and the Licensee’s agency was provided indicating that it was signed on 27 November 2012.

2.3 The representative for the mortgagee provided a response to the Authority investigator regarding this complaint. According to the mortgagee there had been a problem selling the Property when it was listed with a previous agent due to the Complainant’s interference. He says he approached the Licensee in early November 2012 about listing the Property with his Agency and, at the same time, asked him if he could check the outside of the Property as to

whether it was presentable for a sale by auction. He advises that it was practical for him to ask the Licensee to do this as the Licensee lived in the area whereas the mortgagee is based in Auckland. He says he did ask the Licensee to drive by the Property and report back on the condition of it prior to a listing agreement being signed. He was told that the lawns were long and says he instructed the Licensee to arrange to have them cut. The Licensee was not selling the Property for him at the time, he was merely asking him to do this small job on his behalf as the Licensee lived in this area and would know who to contact for the mowing. The distance was also far for him to travel, taking an hour and a half one way. He says he does not understand the basis of the complaint as it was in the Complainant’s interest that the Property was presentable to get the best sale price, and the Complainant and her husband were merely delaying the process of the sale of the Property.

3. Relevant Provisions

3.1 The relevant law is section 72 of the Real Estate Agents Act 2008 (the Act) as to the definition of unsatisfactory conduct.

3.2 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 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.

4. Discussion

4.1 We have considered the issue raised by the Complainant that the Licensee failed to inform them of the mowing and, secondly, that he did not have a listing agreement in place. We note that the mowing of the Property had been arranged by the Licensee in anticipation of the listing agreement and, in part, making inquiries on behalf of the mortgagee for his convenience as the mortgagee was based in Auckland. Although the mowing was actually carried out on 24

November 2012, prior to the listing agreement being signed on 27 November 2012, the Licensee is adamant that he was unaware the contractor was able to free up the time and complete the mowing a week earlier than it had been scheduled. He was away at the time and it was not until his return found out the mowing was completed a week earlier by the contractor. On this basis we do not accept that there has been any wrong doing by the Licensee as he had scheduled the mowing to take place post signing of the listing agreement and was unaware that the contractor had gone ahead and mown the lawns a week earlier.

4.2 It is also our view that the Licensee had an honest belief that the mortgagee, being the vendor, had the authority to instruct him to start making arrangements on his behalf for the mowing of the Property and he had intended to inform the Complainant of this prior to 1 December 2012 (being the date that had been scheduled for the mowing). In light of the above we find that there has been no breach of the provisions of the Act or any Rules under the Act.

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 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 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 unless an application for an order preventing publication has been made to the Real Estate Agents Disciplinary Tribunal (Tribunal). Such an application can only be made as part of an appeal to that Tribunal. In order to ensure publication of the decision does not take place it is important that you serve a copy of your application on the Authority. Publication of the decision will not take place until the Tribunal has made a decision on the application.

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

Ellen Ryan

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 17 December 2013