Complaint No C04777 [2014] NZREAA 267 (11 September 2014)

Last Updated: 2 April 2015

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

And

In the Matter of Complaint No: C04777

In the Matter of The Licensee

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 11th day of September 2014

Complaints Assessment Committee: CAC303

Chairperson: Marina Neylon Deputy Chairperson: Susan D’Ath Panel Member: Amanda Elliott

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1 The Complainant was the purchaser of the Property. The Property was passed in at auction on

17 October 2013. Following the auction the Complainant negotiated a contract to purchase the

Property with the vendor.

1.2 The Licensee holds a Branch Manager’s licence under the Real Estate Agents Act 2008 and is engaged by the Agency. The Licensee was the listing and selling agent of the Property and negotiated the terms of the contract between the Complainant and the vendor of the Property.

1.3 The Complainant alleges the Licensee misled him about the vendor’s agreement to additional terms of the sale contract and the Licensee was verbally abusive to him.

2. Material Facts

2.1 The Complainant was the highest bidder at the auction on the Property. Following the auction he negotiated to purchase the Property and the Licensee conducted those negotiations. A contract was concluded dated the 17 October 2013 with a settlement and possession date of 17

January 2014. The settlement date was brought forward from that originally proposed by the

vendor at the Complainant’s request.

2.2 The Complainant says that he wanted the contract to include provisions giving him access to the Property before settlement to undertake repairs, to control vegetation in the garden and to allow letting agents to show potential tenants. The contract was however concluded without containing any provisions about those matters.

2.3 The vendor agreed to allow the Complainant access to the Property prior to settlement for him to undertake some work in placing a floor and cutting back some bushes in the garden of the Property. The work which the Complainant carried out was more extensive than the vendor had agreed to and he was told to stop. The Complainant ignored the request and repeatedly returned to the Property, carried out more work and was trespassed from it on or about 30

December 2013.

2.4 On 9 January 2014 following an incident in which the Police had been called when the Complainant again went on to the Property, the Licensee and the Complainant had a heated telephone conversation during which the Complainant alleges the Licensee was verbally abusive.

3. Relevant Provisions

3.1 Real Estate Agents Act 2008

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.

Section 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.

3.2 Professional Conduct and Client Care Rules 2009

Rule 5.1 A licensee must exercise skill, care, competence, and diligence at all times when carrying out real estate agency work.

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

Rule 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

Access Issues

4.1 The Committee has carefully considered the matters raised by the Complainant. In order to make a finding of unsatisfactory conduct against a licensee, the Committee must be satisfied the evidence before us has proven, on the balance of probabilities, the Licensee has breached the Act or the Rules to a level that reaches the threshold for unsatisfactory conduct.

4.2 In order to make referral to the Real Estate Agents Disciplinary Tribunal (the Tribunal) on the basis that a licensee’s actions may amount to misconduct the Committee must be satisfied the evidence before us supports the view the conduct alleged shows a marked or serious departure from acceptable standards that could constitute misconduct in terms of s73 of the Act.

4.3 The first complaint is the Licensee misled the Complainant by telling him the vendor had agreed

to allow him access to the Property prior to settlement to carry out work on the house and garden and to allow prospective tenants to be shown through. No provision allowing early access was included in the sale and purchase contract. Following the contract being entered into the Licensee facilitated contact between the Complainant and the vendor and says he did assure the Complainant he would assist him in gaining the requested access. The vendor gave her permission for the Complainant to enter the Property to weed the garden and prune some bushes and insert a floorboard into a stairwell cupboard. This permission was recorded by the Licensee in a Transaction Report dated 17 October 2013. That report also notes the vendor would consider access for tenants to be shown the Property. The agreed access did take place on 13 November 2013.

4.4 On 16 November the Licensee informed the Complainant the vendor was not going to give permission for access to the Property to show tenants. We note there is evidence from the vendor she had insurance cover over the Property which required her to be present when others were inside and was unwilling or unable to do so. The Complainant contacted the vendor directly on 17 November and was told by her, she had said she would consider the matter and on consideration her answer was no. The Complainant subsequently called the Licensee or the Agency on some eight occasions pressing the issue and was each time told the vendor would not agree to grant access to show tenants through.

4.5 The Licensee says the requests for access were made directly by the Complainant to the vendor when they met after the contract was signed. He says he assured the Complainant he would help him with access and acted in good faith but it was the actions of the Complainant that resulted in the access being denied.

4.6 The Licensee emailed the Complainant on 11 November 2013. The email told him not to go to the Property and to stop work. A copy of the vendor’s instruction to that effect was attached to the email which the Committee has sighted. The email made it quite clear permission for access was withdrawn and the reasons why.

4.7 On 17 November 2013 a further email from the vendor was received by the Licensee in which the vendor said the Complainant had been to the Property and carried out further work and had called her insisting he was entitled to do so. The vendor again instructed the Licensee access was not granted.

4.8 On 23 December the vendor again advised the Complainant had been on the Property without permission and the Licensee called the Complainant to again tell him not to go onto the Property. At this point the Licensee sought legal advice as to the position and told the Complainant he had done so.

4.9 On 27 December another email from the vendor was received. Again the Complainant had been to the Property and the vendor had reported the matter to the Police. As a result a Trespass Notice was issued and served on the Complainant. The Licensee sent an email to the Complainant in which he said “it is time for you to get the message and back off. Your lack of consideration for an elderly vendor is beyond rudeness of the highest order. You have no rights to the Property what so ever until you settle”. In the view of the Committee, the position could not have been made clearer.

4.10 On 9 January 2014 the Licensee received another email from the vendor stating the Complainant had been back to the Property in breach of the Trespass Notice.

4.11 We do not find this complaint proven. The Complainant bought the Property after the auction and had the opportunity to negotiate the inclusion of a provision giving him early access. No

provision was included and thus any access prior to settlement other than the pre-purchase inspection provided for in clause 5.2 of the contract was at the consent of the vendor. The vendor was unhappy at the work the Complainant carried out and asked that he stop. The Complainant ignored her request and continued to access the Property to work. He was advised by email and by telephone not to go onto the Property but continued to do so. He was served with a Trespass Notice but chose to ignore it. The Complainant’s conduct distressed the vendor who felt intimidated, threatened and stressed by his behaviour. We find the Complainant’s actions in this regard puzzling. He is employed in a position which would require skill in communication yet appears to have lacked any insight into how his conduct affected the vendor. In an email dated 11 November he acknowledged the vendor’s concerns and his actions to that date might have an impact on her giving permission for further access, but his subsequent conduct in repeatedly going onto and working at the Property when explicitly told not to is in sharp contrast to the sentiment expressed in that email. The Committee finds the Licensee went to considerable efforts to facilitate access for the Complainant. We find the refusal to allow further access was a direct result of the Complainant’s behaviour. The Licensee’s obligation was to his client, the vendor, and he behaved appropriately.

4.12 The Complainant sought compensation or damages for lost rent. That is not an order which this Committee can make even if it were of a mind to do to do so, which it is not.

Verbal Abuse

4.13 This arm of the complaint concerns a telephone call from the Licensee to the Complainant on 9

January 2014. The Complainant alleges the Licensee was verbally abusive and told him to stop being a “fucking wanker” and an “arrogant prick” and said “Jeez you’re an arrogant prick. In twenty -five years of real estate I’ve never met such an arrogant prick as you”. The Licensee concedes he used heated language although he does not recall if those were the exact words used. He accepts he said the Complainant was the most arrogant person he had dealt with. He says the Complainant replied “he would take that as a compliment”.

4.14 It is the view of the Committee the language used was inappropriate and in the best of worlds should not have been used however there are in our opinion several mitigating factors. The conversation came at the end of repeated breaches by the Complainant of the vendor’s rights. The vendor was an elderly lady and clearly distressed by the Complainant’s behaviour to the point the Police had become involved. On the day in question the Complainant had again visited the Property in the full knowledge there was a Trespass Notice in place. The Licensee’s obligations were to his vendor client whose distress was being ignored. It is clear the patience exercised by the Licensee up to this point simply ran out. The Committee has some sympathy for the position the Licensee found himself in which led to his use of heated and colourful language. There is no evidence the Complainant was offended or distressed at the time, by the language used. In our opinion this complaint does not reach the threshold which warrants a finding of unsatisfactory conduct being made.

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.

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. Signed

Susan D’Ath

Deputy Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 11 September 2014