Complaint No CB7148801 [2013] NZREAA 5 (22 January 2013)

Last Updated: 15 February 2014

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

And

In the Matter of Complaint No: CB7148801

In the Matter of Licensee 1

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 22nd day of January 2013

Complaints Assessment Committee: CAC20005

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

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 Licensee 1 (the Licensee). The Licensee is licensed under the Real Estate Agents Act

2008 (the Act). Licensee 1 holds a salespersons licence and is working for Agency A.

1.2 The Complainant is a licensed agent under the Act and is the director of Agency B.

1.3 The Complainant maintains that the Licensee continuously “harassed” the Vendor of the Property along with the sole agent, Agency B, in an effort to receive a share of the commission payable should a customer of the Licensee purchase the Property.

1.4 The complaint was received by the Real Estate Agents Authority (the Authority) on 31 October

2012 and referred to a Complaints Assessment Committee (the Committee). The Committee

considered the complaint on 30 November 2012.

2. Material Facts

2.1 In September 2012 the Complainant was acting as sole agent for the sale of the Property on behalf of the Vendor.

2.2 Around mid-September 2012 the Licensee made contact with the Complainant to ask if she could take a prospective buyer (the Buyer) through the Property and to propose a conjunctional deal and commission split should the Buyer purchase the Property.

2.3 The Complainant declined the request and stated that other interested parties were currently negotiating to buy the Property.

2.4 On 8 October 2012, having noted that the Property was still for sale, the Licensee contacted a salesperson working for the Complainant to request an opportunity to view the Property with the Buyer and further sought to establish a share deal should a sale eventuate. The Complainant denied the request.

2.5 On 9 October 2012 the Licensee made contact with the Vendor of the Property and informed her that the Complainant had refused to allow the Licensee to show the Buyer through the Property.

2.6 The Licensee then made contact with the Vendor’s son and outlined her frustration at not being allowed access to the Property. The Licensee asked the Vendor’s son to intercede on her behalf and convince the Complainant to consider a conjunctional deal with the Licensee.

2.7 Later on 9 October 2012 the Licensee made contact with the same salesperson she had originally spoken to and requested to view the Property with the Buyer.

2.8 At 4pm on 9 October 2012 the salesperson met with the Licensee and the Buyer and showed them through the Property. The salesperson reiterated that there was no conjunctional deal in place.

2.9 On 10 October 2012 the Licensee once again contacted the salesperson and asked if a conjunctional deal would be considered. The proposal was declined. The Licensee then enquired about gaining access for a builder to carry out an inspection on behalf of the Buyer and was told to have the Buyer contact the salesperson directly to make the appointment.

2.10 On 11 October 2012 the Licensee made further contact with the Vendor’s son to ascertain the expiry date of the Complainant’s sole agency listing agreement. The Licensee also took the opportunity to express hers opinion that the Complainant was being unreasonable in refusing to consider a commission split with the Licensee.

2.11 The Buyer declined to proceed with an offer to purchase the Property after obtaining and considering the builder’s report.

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). 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. 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 willful 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 (the Rules).

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

4. Discussion

4.1 The Complainant maintains that the conduct of the Licensee in contacting the Vendor directly was unethical and of such a persistent nature as to be considered harassment. The Complainant believes that the Vendor was upset and disturbed by the conduct of the Licensee.

4.2 The Licensee maintains that she is a personal acquaintance and neighbour of the Vendor and that at no time did the Vendor express upset or offence during conversations regarding the Property.

4.3 The Licensee also maintains that she was a personal friend of the Buyer and wished to assist them in purchasing a property as they had done on numerous occasions in the past.

4.4 The Licensee claims that conjunctional deals or commission splits are routinely agreed to by other agencies and that to be declined was frustrating and not in the best interests of the Vendor.

4.5 The Complainant maintains that he was justified in declining the Licensee’s request to enter into a conjunctional deal because the Licensee had ignored the Vendor ’s wish to have buyers work directly with the sole agent, was not qualified to give accurate information about the soundness of the Property to any other party, was not aware of the current negotiations taking place and therefore was not in a position to protect the best interest of the Complainant’s vendor client.

4.6 The Complainant and the Licensee appear to have opposing views on the benefits of entering into conjunctional arrangements with other agencies and both the Complainant and the Licensee have articulated those positions to the Committee.

4.7 Clearly both the Licensee in requesting a conjunctional arrangement and the Complainant in declining the petition believed they were acting in the best interests of the property Vendor.

4.8 The Licensee approached the Complainant in the first instance to make, what in her experience, was a reasonable request to refer a buyer for the Property and subsequently share in any commission payable upon a successful sale to that person.

4.9 The Complainant was equally free to decline the Licensee’s proposal.

4.10 The Licensee was also entitled to make contact with the Property owner in order to establish the contractual position with the Complainant.

4.11 The Licensee was clearly frustrated by the situation but having determined that there was not going to be a conjunctional arrangement with the Complainant, the Licensee proceeded to assist the Buyer to view the Property with a representative of the Complainant.

4.12 It would seem that the actions of both the Licensee and the Complainant were in the normal course of real estate practice.

4.13 The Committee finds that no conduct attributed to the Licensee would breach the threshold of unsatisfactory conduct or misconduct.

5. Decision

5.1 The Committee met to consider the complaint and pursuant to section 79(2)(a) determined that the complaint alleges neither unsatisfactory conduct nor misconduct and dismiss it accordingly.

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

Chris Rogers

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 22 January 2013