Complaint No C29838 [2019] NZREAA 169 (24 October 2019)

Last Updated: 20 August 2020

Before the Complaints Assessment Committee

Complaint No: C29838

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

and

Licensee 1: The Licensee (XXXXXXXX)

Decision of Complaints Assessment Committee

Decision to take no further action

24 October 2019

Complaints Assessment Committee: CAC 520

Chairperson: Bernardine Hannan

Deputy Chairperson: Peter Brock

Panel Member: Craig Edwards

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1. On 19 February 2019 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).

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

1.4. The detail of the complaint is that;

i) That the Licensee continued to advertise the Property for sale after the Agency

Agreement had ended by not removing any reference to the Property on his website.

ii) That the Licensee did not remove the property for-sale sign until 7 days after the Agency

Agreement ended.

iii) The Complainant has also raised concerns about the Licensee’s conduct, in particular in

relation to his dealings with his wife (complainant’s wife).

1.5. In particular, the Complainant advised that he entered into an Agency Agreement with the Licensee to sell his property in November 2018. By 15 December 2018 the Property went under offer subject to a ‘house sale” clause. This agreement was extended to 30 January

2019 but cancelled on that date as the prospective purchasers were unable to sell their own home. The Agency Agreement terminated on 31 January 2019 and the Complainant requested the Licensee to remove advertising signage from the Property.

1.6. The Complainant says after this request, it was some days before the sign was removed from out the front of the Property and the Licensee continued to advertise the Property on his personal website.

1.7. The Complainant says he contacted the Licensee’s manager, demanding the advertising be removed within three hours, but this was not done. The Complainant alleges that the Licensee’s failure to remove the advertising “screwed up” his subsequent campaign to sell the Property.

1.8. The Complainant also alleges the Licensee bullied his wife and has a major attitude problem.

The Complainant was also unhappy with the photographs taken and claims the Licensee insisted his wife accept these photographs for the marketing campaign. The Complainant also states the Licensee was unhelpful in arranging open homes and determined the timing of these open homes with the Complainant’s wife without talking to him directly. The Licensee also initially advertised the Property as being in a neighbouring suburb rather than the suburb where it is located.

1.9. The Licensee responded to the complaint against him denying any breach of professional standards.

1.10. The Licensee admits the advertising sign was not removed from the Property until 7 days after the Agency Agreement had ended but says he kept the Complainant and his wife

informed about the expected removal date. He explains that on 1 February 2019 [a Friday] he put in an order for removal of the sign and the sign company advised it would be removed on the Tuesday or Thursday as the Wednesday was a public holiday.

1.11. The Licensee admits he continued to advertise the Property on his personal website after the Agency Agreement had ended but says it was an oversight and not intentional. The Licensee denies this had any effect on the marketing of the Property as it was his personal website only, not an advertising website such as Website A, Website B or the Agency’s website, and his personal traffic is low. He says he never had any enquiries for the Property during the time he inadvertently left it on his website.

1.12. The Licensee denies he bullied the Complainant’s wife. The Licensee expresses regret that Complainant is unhappy with the service he received but feels he handled the sale as best he could and is disappointed his perspective buyers could not sell their home to confirm the conditional sale.

1.13. The Licensee states he achieved an offer above his appraised price and had over 40 groups through the Property and felt he had marketed the home well to achieve this offer.

1.14. The Licensee claims to understand the frustrations the Complainant must have felt having his family split while also trying to sell their home. The Licensee says he asked for approval of everything he did from both the Complainant and his wife as evidenced in the email correspondence.

2. What we decided

2.1. 13 May 2019 the Complaints Assessment Committee (the Committee) considered the complaint and decided to inquire into it.

2.2. On 1 October 2019 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: The complaint is not upheld.

Reasons

3.2. The Committee has considered all the issues raised by the Complainant.

The Licensee took too long to remove the advertising sign from the Property

3.3. The evidence shows, the Agency Agreement was cancelled on 31 January 2019. On Friday 1

February 2019, the Licensee contacted his contractor, the sign company and requests it to remove the sign from the Property. On Sunday 3 February 2019 the Licensee emailed both the Complainant and his wife advising them when the sign will be removed on the Tuesday or Thursday as the Wednesday, 6 February is a public holiday.

3.4. On 5 February 2019, the Complainant emails the Licensee copying in the company founder, and states this delay is unacceptable. On 7 February 2019, the day after the public holiday, the sign is removed.

3.5. The Committee has assessed this timeline against the requirements of the Act. Under Rule

5.1 of the Act, a licensee must exercise skill, care, competence, and diligence at all times when carrying out real estate agency work. Rule 6 sets out the required standards of professional conduct and includes fiduciary and good faith obligations as well as obligations not to mislead or bring the industry into disrepute. Rule 9.1 more specifically requires licensees to act in the best interests of their client and to act in accordance with the client’s instructions unless to do so would be contrary to law. A simple minor mistake or taking longer than a client would like to follow his or her instructions is unlikely to be a breach of these professional standards in the absence of other aggravating factors.

3.6. In this case, the Licensee immediately requested its contractor to remove the sign. He followed this up almost immediately and on a Sunday, to inform his clients of progress and remind his clients of an intervening public holiday. The sign was removed the day after the public holiday, the contractors not having done so on the Monday or Tuesday before, a delay of only two working days or possibly three if the Friday the instruction was given is included.

3.7. The Committee accepts the Licensee did not delay removal of the sign with any intention of continuing to market the Property after the end of the agency.

3.8. The Complainant submits that it was his email of complaint to the Licensee and his employer and his contacting the Authority on 7 February 2019 or earlier that caused the sign to be removed at all. The Licensee’s evidence about when he requested removal of the sign is consistent with his email to the Complainant on Sunday 3 February 2019. The Complainant has not supplied any independent evidence that would support this contention and the Committee prefers the evidence of the Licensee that he took immediate steps to have the sign removed but this was slightly delayed by the workload of his contractor and the intervening public holiday.

3.9. The Committee considers that in the circumstances there is no breach that would allow a finding of unsatisfactory conduct on this aspect of the complaint.

The Licensee took too long to remove the listing from his personal website

3.10. The evidence shows the Agency Agreement was cancelled on 31 January 2019. The Licensee admits that his website reference to the Property was not removed by 28 February 2019 when it was noticed by the Complainant. It was removed immediately on notice of this oversight on 1 March 2019.

3.11. The Licensee is required under Rule 9.6 to not offer or market any land or business, including by putting details on any website or by placing a sign on the Property unless authorised by a client, through an agency agreement and Rule 10.9 states a licensee must not advertise any land or business on terms that are different from those authorised by the client.

3.12. Again, the Committee has considered the relevant rules and any breach. The Committee accepts the Licensee overlooked this reference on his personal website when withdrawing from his marketing of the Property at his client’s request. There is no doubt his initial marketing of the Property and placing the Property on his personal website was properly authorised. It is also clear that at the end of the Agency agreement and collapse of the conditional agreement for sale and purchase, that the Complainant and the Licensee fell into dispute. On the evidence before the Committee there appears to be some correlation

between the Complainant’s disappointment at the failed sale and his subsequent

dissatisfaction with the Licensee's conduct.

3.13. Further notwithstanding the Complainant’s complaints on behalf of his wife, the complainant’s wife has declined to take any part in this complaint notwithstanding the Committee’s investigator’s request for further information or clarification.

3.14. The Committee agrees that best practise would have the Licensee remove the website reference immediately. However, that is not the test the Committee must apply. The Committee must determine whether this delay in removing the reference amounts to unsatisfactory conduct in this instance.

3.15. The Committee accepts no deliberate breach on the part of the Licensee. It accepts that he did not intend to continue marketing the Property. The Committee accepts the Licensee simply overlooked it. Had the Licensee overlooked this listing on the Agency ’s website or some other paid advertising site such as Website A or Website B it is likely the Committee would find that the Licensee had continued to market the Property in breach of Rule 9.6 by not removing the listing.

3.16. The Committee has considered whether failing to remove a previous listing from a personal website is the same as marketing a property. The Committee accepts the Licensee’s evidence that he listed the Property on his personal website when the Agency Agreement was first signed. The Property was also marketed directly by the Licensee until the Agency Agreement was cancelled. Further the Committee accepts the Licensee did not directly market the Property once the Agency Agreement was terminated.

3.17. The Committee is not persuaded the Licensee has marketed the Property after the Agency Agreement was terminated. The Complainant accepts the Licensee’s evidence he took no action to market the Property other than failing to remove the reference. The Committee also accepts this reference generated no interest and it was not until he was notified by the Complainant that the reference remained on his website that he was aware of it. Further the Committee accepts the Licensee took immediate steps to remove the reference once he was aware. Had the Licensee been aware of the reference or responded to any contact from prospective clients in relation to this reference then the Committee may well have had a different view.

3.18. The Committee also notes the Licensee offered to apologise and refund $195.00 marketing costs to the Complainant to acknowledge his concerns, but this offer was not accepted.

3.19. Even if the Committee is wrong in this finding and merely leaving the reference to the Property on his personal website once the Agency Agreement had been terminated could be seen as a breach of Rules 9.6 and 10.9, then the Committee is persuaded this breach is inconsequential and any further action is unnecessary.

3.20. In making this finding the Committee has carefully considered the Complainant’s allegation that the advertising has “screwed up” his subsequent campaign to sell. The Complainant has not provided any independent evidence to support this claim it is not proved.

Licensee’s conduct

3.21. The Complainant makes a number of other allegations about the Licensee’s conduct including; that the Licensee had a major attitude problem, that the photographs supplied were of a poor standard, that the Licensee did not consult him over the open home times and that he incorrectly advertised the Property as being in a neighbouring suburb not the suburb.

3.22. The Committee has carefully considered all the evidence put before it. The Committee notes there is little if any independent evidence available and therefore the Committee has had to rely on the parties’ submissions and the written correspondence provided. The Committee has also considered the evidence of the Licensee’s manager representing the Agency. The Complainant’s wife has declined to provide any evidence to the Committee.

3.23. The extensive correspondence between the Complainant, the Licensee and the Agency provided to the Committee supports the Licensee’s claim that he has been courteous and attentive to the Complainant’s concerns and has addressed concerns as they have been raised. However, the correspondence also discloses the Complainant ’s obvious unhappiness as the conditional Sale and Purchase Agreement failed.

3.24. There is correspondence between the Licensee and the Complainant’s wife about the photos and what photos should be used. There is no indication of any dispute of the Licensee using photos that he was directed not to use.

3.25. Without the evidence of the Complainant’s wife, there is insufficient evidence from which the Committee could find the Licensee has exercised any undue or unfair pressure on her. This includes both the Complainant’s wife’s decision to accept the marketing photos and the timing of the open homes. There is no written evidence to suggest the Licensee has a “major attitude problem”.

3.26. Further the documented evidence confirms the Licensee did keep the Complainant apprised of the process notwithstanding the Complainant being overseas at the time.

3.27. The Committee accepts the Licensee did initially incorrectly record the Property’s address in the brochure handed out to a few people at the first open home. The Licensee claims this resulted from a software error that was not picked up before the brochure was printed. The correct address was used in other advertising, such as the Website C. Once the brochure error was picked up it was corrected immediately, and the corrected brochure was handed out at the next five open homes and at all appointments.

3.28. Again, the Committee is not persuaded a small mistake that is immediately corrected is sufficient on the facts as presented to the Committee to sustain a finding of unsatisfactory conduct. The Committee is unaware of any adverse effect this small error has had on the Complainant and notes that notwithstanding this error, the Property sold, albeit conditionally, shortly after listing at or above the appraisal figure.

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 and

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 520

Real Estate Agents Authority

Date: 24 October 2019

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 1 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.

(2) 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 Disciplinary Tribunal against the determination within 20 working days after the day on which notice of the relevant decision was given under section 81 or 94, except that no appeal may be made against a determination under section 89(2)(a) that a complaint or an allegation be considered by the Disciplinary Tribunal.

(1A) The Disciplinary Tribunal may accept a late appeal no later than 60 working days after the day on which notice was given to the appellant if it is satisfied that exceptional circumstances prevented the appeal from being made in time.

(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

(ab) the prescribed fee, if any; 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 Standards of professional conduct

Rule 6.1 A licensee must comply with fiduciary obligations to the licensee’s client.

Rule 6.2 A licensee must act in good faith and deal fairly with all parties engaged in a transaction.

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 in fairness be provided to a customer or client.

Rule 9.1 A licensee must act in the best interests of a client and act in accordance with the client’s instructions unless to do so would be contrary to law.

Rule 9.6 Unless authorised by a client, through an agency agreement, a licensee must not offer or market any land or business, including by putting details on any website or by placing a sign on the property.

Rule 10.9 A licensee must not advertise any land or business on terms that are different from those authorised by the client.