Complaint No C05482 [2014] NZREAA 300 (12 November 2014)

Last Updated: 2 May 2015

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

And

In the Matter of Complaint No: C05482

In the Matter of The Licensee

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 12th November 2014

CAC301

Chairperson: Deirdre McNabb Deputy Chairperson: Pat Waite Panel Member: Rex Hadley

Complaints Assessment Committee

Decision not to inquire

1. The Complaint

1.1 The Complainants have complained to the Real Estate Agents Authority about the conduct of the

Licensee.

1.2 They listed their property (the Property) with him in December 2013. They say that the Licensee:

1.2.1 Did not return phone messages or give feedback to them after showing prospective purchasers through their Property.

1.2.2 Did not accurately describe how ‘buyer enquiry over’ (BEO) marketing of their Property worked and their obligations in relation to that kind of marketing.

2. Material Facts

2.1 The Complainants listed their Property with the Licensee in December 2013. It was marketed as a deadline sale.

2.2 The Property did not sell and so the Licensee suggested that the Complainants relist their Property using the ‘buyer enquiry over’ method of pricing. It is the way the Licensee explained this form of marketing that formed the basis of this complaint.

2.3 The agency agreement for the Property clearly states that the Property is to be advertised ‘Buyer Enquiry over $699,000’ and there is email confirmation on the file showing the Complainants specifically approved the marketing being undertaken on this basis. Next to the provision for

‘Buyer Enquiry over $699,000’ the addendum to the agency agreement states ‘We acknowledge that we will give serious consideration to written offers received at this level during the term of the Agency.’

2.4 The Licensee says that the Complainants could not sign and scan the form back to them, but that they were asked to read the form and email back if they were happy for the home to be advertised on the basis proposed. That email was provided to the Committee for consideration.

2.5 The Complainants say they understood from the Licensee that advertising in this manner was to generate interest in the Property but they did not realise what their legal obligations of advertising in that manner were, until they read information published by the Commerce Commission on the point.

2.6 The Property did not sell and the Complainants took their listing away from the Licensee.

2.7 The Complainants express frustration at not always being able to get hold of the Licensee and getting insufficient feedback about their Property after the Licensee took prospective purchasers through it. The Licensee acknowledges that it was a busy time for the Agency and occasionally it may have been difficult for the Complainants to communicate with him. Despite this he provided

a timeline of contact and communications between the parties which showed relatively frequent interaction.

3. Relevant Provisions

3.1 The Complaints Assessment Committee (the Committee) examined the information supplied by the Complainants in their written complaint to determine whether section 72 of the Real Estate Agents Act 2008 (the Act) applied, i.e. was there evidence which would indicate that the Licensee could be considered guilty of unsatisfactory conduct (section 72).

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 of rules made under this
		Act; or
	(c)	is incompetent or negligent; or
3.3	(d) Section 79	would reasonably be regarded by agents of good standing as being unacceptable. Procedure on receipt of complaint

(1) As soon as practicable after receiving a complaint concerning a licensee, a Committee must consider the complaint and determine whether to inquire into it.

(2) The Committee may—

(a) determine that the complaint alleges neither unsatisfactory conduct nor misconduct and dismiss it accordingly:

(b) determine that the complaint discloses only an inconsequential matter,

and for this reason need not be pursued:

(c) determine that the complaint is frivolous or vexatious and not made in good faith, and for this reason need not be pursued:

(d) determine that the complaint should be referred to another agency, and refer it accordingly:

(e) determine to inquire into the complaint.

4. Discussion

4.1 The Committee considered the correspondence provided by the Complainants and the Licensee along with the email correspondence that took place during the relationship between the parties.

4.2 It found in relation to the BEO marketing that there had been dialogue and correspondence between the parties about this. The Licensee is adamant that he adequately explained the way BEO worked and it is clear that the standard form used by his Agency was employed during this relationship. The Complainants are equally adamant that this form of marketing was inadequately explained to them and caused potential problems for them had they been presented with an offer over $699,000. They were not.

4.3 The Committee found that it was possible the Complainants misunderstood the BEO method of advertising despite the explanation given to them by the Licensee. However, it found that the Licensee had demonstrated sufficient caution in relation to his explanation of this method of advertising, such that it did not consider him to be likely to have fallen short of his duty under the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012 or the Act.

4.4 It also noted that, whilst it is clear the Complainants did not experience the level of communication they would have preferred with the Licensee, his conduct was insufficient for the Committee to conclude that he was likely to have fallen short of his duties under the Rules and the Act.

5. Decision

5.1 The Committee has determined under section 79(2)(a) 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 Complainants (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

Deirdre McNabb

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 12 November 2014