Complaint No CD500096 [2013] NZREAA 32 (20 February 2013)

Last Updated: 16 February 2014

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

And

In the Matter of Complaint No: CD500096

In the Matter of Licensee 1

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 20th day of February 2013

Complaints Assessment Committee: CAC20005

Chairperson: Stuart Rose Deputy Chairperson: Chris Rogers Panel Member: Denise Bovaird

Complaints Assessment Committee

Decision to take no further action under the complaint

1. The Complaint

1.1 The Complainant has complained about the conduct of the Licensee. The Licensee holds an agents license and is the principal officer of the Agency.

1.2 The complaint is that the Licensee misrepresented the selling price of the Property by listing it for sale at $239,000.00. When the Complainant contacted the licensee to make an offer to buy the Property she was then advised it was for sale for $259,000.00

2. Material Facts

2.1 The Licensee was engaged to sell the Property by the vendor in March 2012 for $279,000.00. The vendor instructed the Licensee to lower the asking price to $259,000.00 on 11 September 2012. On

25 September 2012 the vendor instructed that the asking price be lowered to $239,000.00, advising that his circumstances had changed and he now wanted a quick sale.

2.2 The Licensee advised that when she contacted the vendor around 12 November to say she had someone interested in the property he advised that his circumstances had changed for the better, he believed that the market had risen and would continue to rise and was now instructing them to list the Property at $259,000.00.

2.3 The Complainant proceeded to submit an offer for the property at $239,000.00 and the vendor in response counter offered back at $255,000.00.

2.4 The Licensee advises that changes were made to the advertising of the Property’s asking price as soon as possible after receiving her vendors instructions.

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 The Real Estate Agents Act 2008

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 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.

3.4 Real Estate Agents Act (Professional Conduct and Client Care) Rules 2009 (the Rules)

6.3 A licensee must not engage in any conduct likely to bring the industry into disrepute.

6.4 A Licensee must not mislead a customer or client, nor provide false information, nor withhold information that should by law or fairness be provided to a customer or client.

4. Discussion

4.1 The committee has considered this matter thoroughly. We can fully appreciate that the facts as they unfolded must have been very frustrating and also involved the Complainant in what proved to be wasted costs. The Complainant did have the choice of submitting an offer subject to various conditions as is the most common course but chose to carry out her due diligence in advance.

4.2 The central issue to resolve is; was the licensee in breach of any of her duties regarding the pricing of the Property. We have no doubt that in fact what happened was misleading for the Complainant but find no fault in the actions of the Licensee. In contractual terms the advertising was “an invitation to treat”, inviting prospective purchasers to make an offer. The vendor of the Property was entirely free to then accept or reject that offer, including counter offering or even withdrawing the Property from the market altogether. The Licensee as the vendors agent is obliged to follow and carry out those instructions as she did.

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 that it take no further action with regard to the complaint or any allegation or any issue involved in the complaint or allegation.

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

ww w. justi ce. g ov t. nz/ tri bunal s .

Signed

Stuart Rose

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 20 February 2013