Complaint No CD500006 [2013] NZREAA 84 (10 May 2013)

Last Updated: 20 April 2014

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

And

In the Matter of Complaint No: CD500006

In the Matter of Licensee

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 10t h day of May 2013

Complaints Assessment Committee: CAC20008

Chairperson: Ellen Ryan

Deputy Chairperson: Graham Rossiter

Panel Member: Joan Harnett-K indley

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1 T he 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 and her ex-partner, listed their property with the Licensee to sell in June 2012.

The Complainant alleges the Licensee tried to bully her in her own home into accepting an offer to purchase the property and that she had to order him to leave. She alleges that the Licensee also ended the agency prematurely before the end of the listing agreement in a fit of temper by advising her ex-partner that he wanted nothing to do with it and then removed his advertising signs from the property. Further, she alleges that some weeks later she was approached by prospective purchasers who told her that they had phoned the Licensee to make an offer on the property and they were advised that it was sold, yet the property had not been sold.

2. Material Facts

2.1 The Complainant, in addition to the concerns raised above, advised that her ex-partner suffered from mental illness and had pressured her to put the property on the market. She advises she did not consider the property was ready to be sold as there was a large hole that had been dug by her ex-partner on the property which needed to be filled. She states she advised the Licensee of this matter and he suggested that her ex-partner fill in the hole. She tried to explain to the Licensee that, due to her ex-partner’s mental illness, he would not be able to cope with the stress of filling in the hole, yet the Licensee would not hear of it. This incident, the Complainant alleges, occurred at the time the Licensee had yelled at her and tried to bully her into accepting an offer of purchase on the property.

2.2 The Licensee in his response to the complaint states that the Complainant and her ex partner had listed their property to sell with his agency on 27 June 2012 and that he was the salesperson. They advised him to sell the property for $305,000 plus GST. A few weeks later the Complainant contacted him advising they needed $320,000 to $330,000, he then received a call from the Complainant’s ex-partner to leave it at $305,000. He says he was caught in the middle between the Complainant and the ex partner and he was forced to increase the advertised price.

2.3 The Licensee further advises that on 27 August 2012 an offer was subsequently made of

$310,000 plus GST, subject to the hole being filled. The offer was accepted by the Complainant’s ex-partner and he signed it. The Licensee states he then took the offer to the Complainant to sign and was asked to leave it with her. She contacted him on 29 August 2012 to come and pick up the agreement, which he did so. She advised him that she needed to put in a counter offer as it would be a problem to fill the hole quickly. He then told her that she should seriously consider the offer as it was fair and suggested for her ex-partner to fill the hole. She then said to him that

her partner, in her words, was “nuts and mentally unstable”. He states he then told the Complainant that it was not necessary to run him down to which she allegedly “exploded” and swore at him, told him to leave and named another agent she would get to sell the property. The Licensee then said that was fine and walked out of the house. He says the entire exchange took two minutes not five as alleged by the Complainant. He denies shouting during the discussion.

2.4 The Licensee then advises that, as he was walking down the driveway, the Complainant called out to him that she wished it had not got messy. He agreed with her and said for her to go with the other agent she preferred and they would move on and forget about it. He then called the Complainant’s ex-partner and explained what happened. The next day he took down his signs from the property.

2.5 The Licensee explains that he was surprised that the complaint was made a few months later. He has never had a complaint made against him. He then called the Complainant’s ex-partner who advised him that the Complainant had received an offer for the property from someone that he, the Licensee, had introduced to the property and she had wondered what would happen to the commission. He states that he feels this is possibly the real reason why the complaint had been made against him as part of the outcome the Complainant is seeking in her complaint is for him to waive any right to the commission on the property.

2.6 The Licensee further says that he also took the signs down and stopped the advertising as the Complainant had advised she would be going with another agent to sell the property and, since the Licensee’s agency was paying for all the advertising as part of the arrangement, they stopped any further advertising. The Licensee denies receiving any further calls from prospective purchasers. He advises that if he had, he would not have told them it was sold when legally he still had an agency until he actually got the cancellation of agency forms from the new agent which he was expecting to receive. He states that he would have been entitled to commission if the property had sold while he had an agency so there was no reason to say it was sold when it wasn’t.

3. Discussion

3.1 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.

3.2 We have considered the submissions from both parties. The allegations made in the complaint relate to the conduct of the Licensee, that he tried to bully her, the Complainant, to accept an offer, that he prematurely ended the listing agreement and took his signs off the property and that he told prospective purchasers that the property was sold when it had not been sold. In his response to the complaint the Licensee denies all these allegations and advises that, effectively, the agency relationship ended through the choice of the Complainant to use another agent.

3.3 The Complaints Assessment Committee (the Committee) does not see any reason as to why the Licensee would end the agency prematurely as, not only had they obtained a signed offer on the property by a purchaser which had been accepted and signed by one of the vendors (the Complainant’s ex-partner), they would not be able to recoup advertising costs which they were paying to market the property.

3.2 The allegations made by the Complainant focus on conversations in which both parties have given conflicting accounts. W e find that, in light of these conflicting accounts of verbal exchanges between the parties, there is insufficient evidence to support the allegations made by the Complainant against the Licensee, or persuade us that there was any wrong doing on the part of the Licensee that would amount to unsatisfactory conduct or a breach of any of the Rules or sections of the Real Estate Agents Act 2008.

3.3 For these reasons the Committee has concluded to take no further action into this complaint.

4. Decision

4.1 The Committee has considered the complaint and have determined not to take any further action under section 80(2) of the Real Estate Agents Act 2008 for the reasons discussed above.

5. Publication

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

5.2 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.

5.3 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.

5.4 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.

6. Right of Appeal

6.1 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.

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

6.3 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: 10 May 2013