Complaint No C13688 [2016] NZREAA 187 (16 September 2016)

Last Updated: 14 April 2017

In the Matter of	Part 4 of the Real Estate Agents Act 2008
And
In the Matter of	Complaint No: C13688
	The Licensee (XXXXXXXX)

Decision of Complaints Assessment Committee

Decision to take no further action

16 September 2016

Members of Complaints Assessment Committee: CAC412

Chairperson: Bernardine Hannan

Deputy Chairperson: David Bennett

Panel Member: Craig Edwards

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1. On 14 April 2016 the Real Estate Agents Authority (the Authority) received a complaint against the Licensee from the Complainant.

1.2. The Licensee is a licensed salesperson under the Real Estate Agents Act 2008 (the Act)

employed at time of conduct by the Agency.

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

1.4. The details of the complaint are that the Complainant was the tenant of the Property at the material time. The Licensee had been contacted by the owner, the Trust, and asked to list the Property for sale. On 30 March 2016, the Complainant, who suffers from multiple sclerosis, claims he was feeling unwell, lay down on his couch in his underwear and fell asleep. The Complainant alleges he was then woken by the Licensee who woke him up and introduced himself. The Complainant says the Licensee had not notified him that he would be visiting the Property that day. The Complainant claims that he was unaware the Property was being listed for sale, but admits the Property owner had suggested this might happen during a conversation with him a week or so earlier.

1.5. The Complainant says he asked the Licensee if he had a listing agreement and the Licensee responded that he did not have it. The Complainant asked the Licensee to leave the Property, but claims the Licensee refused to do so, indicating he did not have to leave and had every right to be there. The Complainant says the Licensee stood over him and he felt intimidated and embarrassed. The Complainant alleges he again told the Licensee to leave but the Licensee refused to do so and watched him as he got dressed. The Complainant alleges he then ushered the Licensee out the door. The Complainant says the Licensee was belligerent and he had to physically push him out the gate and close it behind him to remove him from his Property.

1.6. The Complainant says this upset him greatly and as soon as the Licensee had left the Property he drove to the police station and took out a trespass order against the Licensee. The Complainant says that when he served the trespass order on the Licensee, the Licensee immediately walked across the road and tried to lay an assault charge against him. The Complainant claims the police refused to accept the Licensee’s complaint and the police later told him they had reprimanded the Licensee for entering the Property without authority.

1.7. The Complainant says he was also later contacted by the Property owner, the trustee Mrs A, who advised him she had not yet signed the listing agreement and that she had provided the Licensee with his phone number and asked the Licensee to contact him, with a view to visiting and appraising the Property once the listing agreement had been signed.

1.8. The Complainant also says he complained about the Licensee’s behaviour to the Licensee’s manager, Mr X, but believes that Mr X did not take his complaint seriously and has not responded to him. However the Complainant also alleges that Mr X apologised to him for the Licensee’s behaviour and asked the Complainant to leave the matter with him. However the Complainant has confirmed to the Committee that he has not included either Mr X or the

Licensee’s partner, Ms Y, in this complaint.

1.9. The Complainant says his rights and his privacy were violated and he believes if it had been a woman in the same situation, the Agency and the police would have taken it more seriously.

1.10. In particular, the Complainant alleges that:

a) The Licensee failed to meet the required professional standard when he entered the Property without authority and then intimidated him without regard to his health condition. The Complainant suffers from multiple sclerosis.

b) The Licensee engaged in conduct which brought the industry into disrepute.

1.11. The Complainant requested a remedy, being:

a) That the Licensee to be censured and undergo further education to recognise that he must abide by the law and respect the rights of others.

b) The Complainant also seeks the termination of the Licensee’s licence.

1.12. The Licensee responded to the complaint against him. In particular, the Licensee denied the complaint.

1.13. The Licensee claims that he first met the Complainant in October 2015, when he went to the Property with the intention of appraising the Property for the owner. The Licensee claims this visit was cordial but admits the Complainant made it quite clear he was not happy at the prospect of the Property going on the market.

1.14. On 28 March 2016, the Property was listed with the Licensee for sale. The Licensee admits that at this time the owner advised the Licensee that the tenant (the Complainant) had not been happy with the news that the Property was going on the market, and the owner asked the Licensee to liaise with the tenant to market the Property.

1.15. The Licensee admits that on 30 March 2016, at approximately 10.30am, he visited the Property, but claims he remained outside and did not enter the dwelling. The Licensee claims that he and his wife, Ms Y, were at the beach, just around the corner from the Property, at about 10.30am. As they were close by and the listing agreement had already been signed, the Licensee decided to drop by so that he could introduce his wife to the tenant and they could arrange a time to have the photographs taken for marketing.

1.16. The Licensee claims they drove down the driveway and stopped at a white gate at the side of the Property. They walked to the side door, which leads into the dining room. This door was wide open. The Licensee claims he walked ahead of his wife and knocked on the door. There was no answer. The curtains were closed in the dining room and the lounge, and it was dark. There were no lights on but the TV was on. The Licensee assumed that someone was home.

1.17. The Licensee claims he knocked a second time and called out, "Hi, it's [the Licensee] and [Ms Y] here from [the Agency].” There was still no answer, but he then noticed someone moving on the couch. He called out again, still remaining outside of the Property. There was a distance of approximately 1.5 metres from where he was to the back of the couch.

1.18. At this point, the Licensee claims he saw the Complainant sit up from the couch with a duvet wrapped around him. He looked bleary-eyed and a bit confused. Again, the Licensee introduced himself to the Complainant and he responded by saying, "Did she give you my

number?” The Licensee claims the Complainant then screamed at the top of his voice, "Did she give you my fucking phone number?" to which the Licensee said that she had, assuming the Complainant was referring to the Property owner. The Complainant continued screaming, "Well then, you can get the fuck off my property. I know my rights. You have to give me 48 hours' notice and if you don't fuck off, I'll put a Trespass Notice on you and complain to the REAA."

1.19. The Licensee claims he tried to reason with the Complainant, stating that the owner had asked them to put the Property on the market. The Complainant dropped his duvet cover, picked up a packet of cigarettes, lit one, and then put on a pair of jeans. The Licensee says that all this time the Complainant continued screaming and swearing at him in a very intimidating and aggressive manner.

1.20. The Licensee admits he did not call the Complainant prior to going on to the Property on the day in question, but strenuously denies that either he or his wife ever entered the house on that day. The Licensee claims that he is legally allowed to knock on doors, had the permission of the owner to liaise with the tenant to market the Property, and that he had not been told by tenant to ring first prior to this instance.

1.21. Further, the Licensee denies that he said he had full authority to be there or that he said he did not need to call first as he had every right to be there. The Licensee also denies he said he would get the police and that he was not going anywhere. The Licensee denies the allegation that he entered the house illegally, or was intimidating or behaved aggressively. The Licensee also denies he displayed any disgusting or lewd behaviour or that he stood over the Complainant whilst the Complainant got dressed. The Licensee claims that he feels truly disappointed, shocked and saddened that things have come to this point.

2. What we decided

2.1. On 4 July 2016 the Complaints Assessment Committee (the Committee) considered the complaint and decided to inquire into it.

2.2. On 1 September 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 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.

3. Our reasons for the decision

3.1. The Committee concluded:

1. The Committee is not persuaded on the evidence before it that the Licensee failed to meet the required professional standards when visiting the Complainant at his home on

30 March 2016.

2. The Committee is not persuaded on the evidence before it that the Licensee has engaged in conduct which is likely to bring the industry into disrepute.

Reason

3.2. The Committee has carefully considered all the evidence put before it. The Committee is not persuaded on the evidence before it that the Licensee has failed to meet the required professional standards when visiting the Complainant at his home on 30 March 2016.

3.3. The Committee understands the Complainant’s concerns regarding this visit and accepts the Complainant may have preferred to be telephoned before the Licensee knocked on his door. The Committee understands the Complainant was distressed by the impending sale of his home and the resulting inconvenience. However, for the Committee to be persuaded that the Licensee has failed in his obligation to meet the required professional standards in this matter, the Committee would have to be persuaded both that the Licensee was not entitled to visit the Complainant without first contacting the Complainant by telephone and secondly, the Committee would have to accept that the Licensee entered the Complainant’s home without the Complainant’s permission or that he failed to leave when requested to do so.

3.4. The Committee has little independent evidence before it. Whereas the Committee has no reason to disbelieve the Complainant’s view of events, on the Complainant’s own evidence he was awoken suddenly from a deep slumber and may have been confused as the events unfolded around him. The Committee also has insufficient evidence to dismiss the Licensee’s view of events. It is clear that some disturbance occurred. What is less clear is which parties’ version of these events is more reflective of the actual situation as may have been observed by an impartial observer.

3.5. Whereas it may have been wise for the Licensee to contact the Complainant prior to his visit of the Property on 30 March 2016, a failure to do so of itself does not render his behaviour in visiting the Complainant on that day, unsatisfactory. The Committee accepts that licensees, or indeed any member of the public, is in general permitted to knock on doors. The situation may be different if there had been a number of such disturbances, however both the Complainant and the Licensee accept this was the first such contact.

3.6. Further, in this case the Committee accepts the Licensee had the permission of the owner to liaise directly with her tenant, the Complainant, over the marketing of the Property. The Committee also accepts that the Licensee was told by the Property owner that he would contact the Complainant and advise him of the Licensee’s authority in this matter. Further there is no evidence before the Committee that the Licensee was told to telephone the tenant before approaching the Property.

3.7. Of course the Committee accepts that once a licensee finds himself in this situation and is asked to leave the Property, it is reasonable that a licensee would do so without delay. The Complainant alleges that not only did the Licensee fail to leave the Property immediately, but that he entered his home without permission and then refused to leave claiming he had a right to be there. The Licensee denies this absolutely. To determine this, the Committee must consider both the evidence before it and the relevant evidential standard. The Committee must be persuaded that the Complainant’s view of events is the more likely one on the balance of probabilities. In this instance, the Committee is unable to conclude this. Perhaps not unsurprisingly the evidence of Ms Y supports that of her partner. The Committee is aware that Ms Y’s evidence could not be considered independent evidence.

3.8. The Committee also has access to the evidence of two of the Complainant’s neighbours, Mr B

of number xx and Mr C at number xy. Whereas both witnesses appear to confirm the Complainant’s view of the altercation, both witnesses also confirm that the Complainant “was not quiet” and they could hear him shouting. Mr C confirms that the Licensee was backing off when he first saw him and that the Complainant was shouting at him to leave. Both neighbours also confirmed that the Complainant was distressed after this altercation. The Committee accepts the Complainant was distressed by his interaction with the Licensee and the knowledge that his occupation of his home would be disrupted by an imminent sale of the Property. However both neighbours also confirm that they had no view or indeed any knowledge of whether the Licensee had entered the Complainant’s dwelling or had refused to leave when loudly asked to do so, other than what they had been told by the Complainant.

3.9. In addition, the Committee can draw little conclusion from the involvement of the police in this matter. The Committee accepts that the Complainant was successful in obtaining a trespass order against the Licensee; however such orders are not difficult to obtain and are usually issued merely as a way of maintaining the peace rather than as any attribution of fault. The Committee understands that the Complainant believes that the police supported his view of the events, however again the Committee has no evidence to support this allegation. It certainly appears that no further action has been taken by the police in regards to the actions of either the Complainant or the Licensee in this matter.

3.10. In the absence of any evidence supporting the Complainant’s allegation that the Licensee entered his dwelling and refused to leave when requested to do so, the Committee is not persuaded that it has sufficient evidence to find unsatisfactory conduct in this instance. It is equally likely that the Licensee was simply attempting to make a courtesy call on the Complainant, popping in without contact first being a relative common occurrence in small communities, and not in itself evidence of unsatisfactory conduct. Further, in this instance, the Licensee had a reasonable basis to believe that the owner of the Property had already alerted the Complainant to this possibility and had not been told to desist.

3.11. Once it became clear that the Complainant was not open to such an approach, it is equally likely that once the Licensee realised he was not able to “calm the Complainant’s concerns” about the visit, he was backing off and attempting to exit the gate. It is also possible that there was some contact between the Complainant and Licensee as the Licensee attempted to leave, however, in the circumstances as described above, again this is not evidence of unsatisfactory conduct on the part of the Licensee, but rather evidence of the keenly felt concern of the Complainant.

3.12. As either the Complainant or the Licensee’s view of the confrontation is equally likely, at least in regard to the speediness of the Licensee’s withdrawal, the Committee is not persuaded that it has sufficient evidence to make a finding of unsatisfactory conduct on this instance. Further, on the evidence before the Committee, the Committee is not persuaded that the Licensee entered the Complainant’s dwelling without permission, notwithstanding the Licensee admission’s that he did knock on the Complainant’s door. Again, this in itself is not sufficient to support a finding of unsatisfactory conduct.

3.13. The Committee has determined to take no further action on this complaint.

4. What happens next

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. Your appeal must include a copy of this decision and any other information you wish the Tribunal to consider in relation to the appeal. Refer to Appendix section 111.

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

Justice-Tribunals (www.justice.govt.nz/tribunals).

Publication

4.3. 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 Licensee and any third parties.

4.4. 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.

4.5. 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

Bernardine Hannan

Chairperson

For Complaints Assessment Committee 412

Real Estate Agents Authority

Date: 16 September 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 5.1 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.