Complaint No C11373 [2016] NZREAA 109 (25 May 2016)

Last Updated: 27 December 2016

Before the Complaints Assessment Committee

Complaint No: C11373

In the matter of

Part 4 of the Real Estate Agents Act 2008

Licensee: Licensee One (XXXXXXXX)

Licensee: Licensee Two (XXXXXXXX)

Decision to take no further action

25 May 2016

Members of Complaints Assessment Committee: CAC403

Chairperson: Susan D'Ath Deputy Chairperson: Amelia Bardsley Panel Member: Sandra Wilson

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1. On 12 November 2015 the Real Estate Agents Authority (the Authority) received a complaint against Licensee One and Licensee Two from the Complainant.

1.2. Licensee One is a licensed Branch Manager and Licensee Two is a licensed salesperson under the Real Estate Agents Act 2008 (the Act).

1.3. The complaint relates to a property (the Property).

1.4. The details of the complaint are that the Complainant says she was interested in the Property and she viewed it on 5 November 2015 through Licensee Two and was given a brochure. She says when she viewed the Property, Licensee Two told her the Agency would not be presenting offers to the vendor until the Deadline date. She says the Deadline sale was not specified on the advertising and brochure for the Property.

1.5. The Complainant says that after viewing the Property on 5 November 2015 she met Licensee Two at the Agency as she wanted to make an offer. As Licensee Two was writing up her offer the Complainant asked whether she had clarified the Deadline date. She says Licensee One came over to her in an aggressive manner, waved his finger in her face and said, “you are an idiot”. Licensee Two and the receptionist were witnesses to this behaviour, and when she pointed this out Licensee One said, “they’ll say it didn’t happen”. She went into an office to get her handbag and leave, and Licensee One followed her into this office and shut the door. She says she told him she did not feel safe and left the office. She says she told Licensee One she would call her lawyer, and Licensee One left the building. She says she called her lawyer, who advised her to call the police.

1.6. The Complainant says the manager of the branch (the Manager) then arrived and she explained the situation. She says he explained they had a “seven day embargo” policy on presenting offers to the vendor. She says the next day the Manager called her to say they would present her offer to the vendor’s lawyer, but then called back later to say the vendor would not accept the offer until the Deadline date.

1.7. In particular, the Complainant complained:

a) That the Property was not advertised with a Deadline date.

2. Of the “underhanded behavior” and offensive and unethical behaviors of the Agency and its staff, in particular Licensee One.
   

1.8. The Complainant requested a remedy, being:

a) For Licensee One to lose his licence.

b) For Licensee Two to have further training and a warning.

c) For the Manager to “retrain to fix the dysfunction in the office.”

1.9. The Licensees gave statements in response to the complaint against them. To summarise their statements: when Licensee Two first showed the Complainant the Property on or

around 4 November 2015, she explained to her that the Property was being sold by Deadline sale. She also explained that they were waiting for the vendor’s solicitor to confirm conditions of sale and Property disclosures before printing the proper flyer and marketing the Property. The Complainant became instantly heated and insisted she had the right to make an offer that day. She became increasingly agitated when Licensee Two advised her that the Agency has a 7-day embargo on all new listings when no offers are to be presented. The Complainant appeared to refuse to listen to Licensee Two’s explanations and insisted on an offer from her being drawn up. They agreed to meet at the office 4pm that day.

1.10. Licensee Two drew up an offer for the Property from the Complainant with the listing agent reminding Licensee Two that this was a Deadline sale and the 7-day embargo on offers. Licensee Two had already tried to explain that to the Complainant and tried to explain it to her again but “every time I opened my mouth, she spoke over me in a loud voice saying she didn’t want to hear and repeated she will be phoning her lawyer and making a complaint to the REAA”.

1.11. When the Complainant arrived at the office, Licensee Two tried to explain that they had not yet received the Property disclosures or sale date. Licensee Two alleges that the Complainant continued to insist on signing the offer, raising her voice and calling her and others in the office racist.

1.12. Licensee One heard the Complainants raised voice and Licensee Two trying to explain matters to her. He then came over and tried to explain the process to the Complainant but she also refused to listen to Licensee One. Both Licensees attempted to get the Complainant to calm down to no avail. Licensee One ended up walking off telling the Complainant to “get a life”. The Complainant continued “ranting and hysterical” when Licensee One came back to leave the office. They got into further discussion where eventually Licensee Two told the Complainant “get out of our office – you are an idiot”.

1.13. From there it appears things went rapidly downhill with the Complainant continuing to call them all racist, dysfunctional and that Licensee One had assaulted her.

1.14. The Agency receptionist had texted the Manager to urgently come to the office because of the matter. He arrived to find Licensee Two sobbing and the receptionist cowering behind her desk. The Manager discussed what had gone on with the Complainant and said he would email her later that night, which he did. He did not hear back from her. He passed on the Complainant’s offer to the vendor, who would not look at it until the Deadline date. There were 8 offers on the Property; it sold for $250,000 with the Complainant’s offer being

$180,000.

1.15. On behalf of the Licensees and the Agency, Mr. A (owner of the Agency) also responded to the complaint against them.

1.16. In particular, Mr. A provided the Committee with documentation and marketing material about the Deadline sale.

2. What we decided

2.1. On 18 January 2016 the Complaints Assessment Committee (the Committee) considered the complaint and decided to inquire into it under section 79(2)(e) of the Act.

2.2. On 11 May 2016 the Committee held a hearing on the papers and considered all the information gathered during the inquiry.

2.3. The Committee has decided to take no further action on the complaint.

2.4. This decision was made under section 80(2) and section 89(2)(c) of the Act. The decision was also made with reference to the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012 (the Rules), Rule 5.2 (skill, care and competence).

3. Our reasons for the decision

The Committee concluded:

3.1. The Complainant complained that the Property was not advertised with a Deadline date nor did the brochure she was given at the viewing specify the Deadline sale.

3.2. On the evidence provided to us by the Agency, we find that the Property was advertised with a Deadline date. For instance, the property magazine issued on 4 November 2015, current to

11 November 2015, which contained a full-page advertisement of the Property, clearly specifies “Deadline sale closing 25th November 2015”.

3.3. Whilst it appears that the brochure the Complainant was given at the viewing did not specify the Deadline sale, the Committee finds no breach for this. Under Rule 5.1 a licensee must exercise care, skill and competence when marketing a property. The published advertising for the Property did specify the Deadline sale, and significantly, Licensee Two made sure she explained to the Complainant that the brochure was not the completed one and explained to her about the Deadline sale. Therefore we dismiss the Complainant’s complaint about the Deadline sale.

3.4. The second key area of complaint revolved around Licensee One’s conduct, and the other staff at the Agency office, towards the Complainant. In particular she complained about Licensee One calling her “an idiot”.

3.5. Licensee One accepts that he told her “to get a life” and he called her an “idiot”. He states he is extremely regretful of saying these things, but given the provocation he received from the

Complainant, he is surprised he did not say more.

3.6. Whilst a licensee saying to a potential buyer “get a life” and calling them “an idiot” appears unsatisfactory, we find that there should be no further action against him on the matter. Whilst a reasonable licensee would be expected to control themselves in situations of conflict, there are limits to reasonable persons’ patience when faced with antagonistic and challenging behaviour. The Complainant was verbally attacking him and his staff and refusing to listen to them trying to explain and help her. Further, the Complainant was calling him and the others racists, which he found, as most reasonable people would, extremely offensive and upsetting in that situation. We also give Licensee One credit for owning up to such name calling and accept his evidence that this was totally out of character and he was driven to it by the Complainant’s behaviour. Therefore, while such name-calling is unwise, the Committee, using discretion under Section 80(2) has decided to take no further action on the complaint.

4. Your right to appeal

4.1. If you are affected by this decision of the Committee, you may appeal in writing to the Real Estate Agents Disciplinary Tribunal (the Tribunal) within 20 working days after the date of this decision (section 111).

4.2. For further information on filing an appeal, read Guide to Filing an Appeal at Mi ni stry of

J usti ce -Tri bunal s ( ww w. justi ce. g ov t. nz/ tri bunal s ).

5. Publication

5.1. At the Committee’s discretion, the decision will be published without the names or identifying details of the Complainant (including the address of the Property), the Licensees and any third parties.

5.2. The Authority will publish the Committee’s decision after the period for filing an appeal has ended, unless the Tribunal receives an application for an order preventing publication. The Authority will not publish the Committee’s decision until the Tribunal has made a decision on the application.

5.3. Publishing the Committee’s decision supports the purpose of the Act by ensuring that the disciplinary process remains transparent, independent and effective. The Committee also considers that publishing this decision helps to set industry standards and that is in the public interest.

Signed

Amelia Bardsley

Deputy Chair

Date: 25 May 2016

Appendix 1: Relevant provisions

The Real Estate Agents Act 2008 provides:

89 Power of Committee to determine complaint or allegation

(1) A Committee may make one or more of the determinations described in subsection (2) after both inquiring into a complaint or allegation and conducting a hearing with regard to that complaint or allegation.

(2) The determinations that the Committee may make are as follows:

(a) a determination that the complaint or allegation be considered by the

Disciplinary Tribunal:

(b) a determination that it has been proved, on the balance of probabilities, that the licensee has engaged in unsatisfactory conduct:

(c) a determination that the Committee take no further action with regard to the complaint or allegation or any issue involved in the complaint or allegation.

(3) Nothing in this section limits the power of the Committee to make, at any time, a

decision under section 80 with regard to a complaint.

111 Appeal to Tribunal against determination by Committee

(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 the notice given under section 81 or 94.

(2) The appeal is by way of written notice to the Tribunal of the appellant's intention to appeal, accompanied by—

(a) a copy of the notice given to the person under section 81 or 94; and

(b) any other information that the appellant wishes the Tribunal to consider in relation to the appeal.

(3) The appeal is by way of rehearing.

(4) After considering the appeal, the Tribunal may confirm, reverse, or modify the determination of the Committee.

(5) If the Tribunal reverses or modifies a determination of the Committee, it may exercise any of the powers that the Committee could have exercised.

The relevant provisions from the Real Estate Agents Act (Professional Conduct and Client Care) Rules

2012 are:

Rule 5.2 A licensee must have a sound knowledge of the Act, regulations, rules issued by the Authority (including these rules), and other legislation relevant to real estate agency work.