Powers and functions of the Authorities
1. The recruitment of the salesperson and licensing norms, considering the situation which mentions and questions about the eligibility for being a salesperson under the concerned Real Estate Act, as per the provisions of Real Estate Agent Act, 2008 an individual may be licensed as a salesperson if he satisfies that Registrar under Section 36(2):
- He has attained the age of 18 years.
- The individual is not prohibited under section 37 of the Act to hold the license(Government of New Zealand, 2021).
2. As per the provisions of Section 37(C) the individual shall not be entitled to be eligible for license approval again.
- A person is debarred from holding a license under the provisions of this act if the Registrar is satisfied that the previous license of the individual has been canceled by the concerned authority and the interval between cancellation and reapplication is not more than 5 years(Government of NewZealand, 2021).
3. The direct authority which shall be required to supervise the work of the salesperson shall be the Branch Manager as set out by Section 50 of the Act.
The other authority which shall be responsible for General supervision would be the Real Estate Agency Authority being duly established under Section 10 of the Real Estate Agency Act, 2008 would be the ultimate authority that shall be responsible for the supervision and management of the work of the salesperson. Section 12(1) sets out the powers and functions of the Authorities, management (Government of New Zealand, 2021).
4. As the Code in itself is all exhaustive and inclusive the experience of 8 years being a telemarketing expert shall not hold good for supporting to become directly the Branch Manager and the protocol and hierarchy shall be followed to attain willing positions as per the code.
5. As per Section 47 of the Real Estate Agency Act, 2008 there is a blanket restriction of the right seeking license transfer. Any other relief may be sought if any of the act provides for, the transfer is considered to be void under the provisions of this code and it is completely restricted.
- The license initially granted to the first person cannot be transferred and cannot be deemed to vest by the operation of the law in someone else (Government of New Zealand, 2021).
1. Considering the case study as discussed above, the sections that shall be of relevance in this question shall be section 72 and section 73(C) of the Real Estate Agency Act, 2008. The conduct of the salesperson, in this case, shall be construed as both Unsatisfactory conduct and Misconduct. The intent of the agent can be construed by the willful conduct of website listing of less than the expected price of the principal authorities. As per section 73(C) of the Act, the licensee shall be guilty of misconduct if the following conditions are satisfied which has been satisfied in the present discussed case study:
- An agent shall be liable to be punished and penalized for the offense of misconduct as per clause c of section 73 if he willfully or negligently contravenes the provision of the act that apply to the conduct and professional standards of the licensee and other supplemental rules and regulations concerning the professional behavior of the salespersons.
- The individual, in this case, shall also be liable under Section 72 of the act which states about unsatisfactory conduct of the agent, and this liability is attracted when a person fails to meet the standards set for being an agent of a good standard as directed by the act.
The wrongful intent of the agent can be directly sorted from the case study which mentions that the agent was well aware of the expected price for website listing and willingly posted on the website a price which was very less than the expected price and which could have deprived the principal authorities of their business rights (Government of New Zealand, 2021).
2. Considering the case as has been given where the agent was not under any kind of Agency agreement and contractual obligation, by Section 126 of the Real Estate Agency Act, 2008 any conduct by the so-called ‘agent’ shall be considered as being void ab initio. As per operation of section 126 unless there is an agency agreement in writing between the parties the conduct of the individual, not an authorized agent shall be construed as immaterial, and in the case of any deprivation to the third party client the liability shall be personally borne by the individual acting as an agent.
As far as the misconduct and unsatisfactory conduct is concerned it applies to those individuals who are governed by the virtue of the act but in this case, as the person is not under an agency agreement no further action is required to be taken upon and all the consequences shall be personally borne by the individual (Government of NewZealand, 2021).
3. Considering the case as had been given herein, where the agent or the salesperson has not provided the principal with either of the copies of the agency agreement or the approved guide. The conduct of the salesperson in this case stating that the copies and other supplementary files shall be given at a later stage depicts and indicates negligence and recklessness on the part of the sales agent. By the force and virtue of Section 127 of the Real Estate Agency Act, 2008, it is the legal duty and responsibility of the salesperson to provide the client in case the signed agency agreement exists with the copy of the signed agency agreement and the approved guide of residential place being offered and finalized for sale. The approved guide shall be given to the client without any delay to base the trust of the client that the agent is authorized to mark and sell the property and good title shall be vested in the subsequent owner.
Restrictions on license transfer
The negligent and reckless act of the salesperson shall be considered as Unsatisfactory under the provisions of Section 72 of the concerned and discussed act herein and shall be dealt with following the offending provisions of the Act to deter such conduct from probable future (Government of NewZealand, 2021).
4. Considering the case as has been stated and discussed the due provisions of the Real Estate Agency Act, 2008 has been duly honored by the salesperson as referred to herein and the major provisions which have been taken care of as per the need of the cases are Section 132 and Section 133 supplemented with the basic professional standards and Professional competence as has been mentioned under Real Estate Agents ( Professional Care and Conduct Regulations),2012. The conduct of the salesperson as to give the copy of the contractual agreement, asking to discuss with the lawyer before the signing of the contract of sale and purchase and providing the client with the deposit slip for paying the earnest amount for depositing in the agency trust account and the confirmation of the clients simply shreds of evidence, justifies and supplements the fact that agent has duly complied with the requirements of section 132 and section 133 of the act, the latter one specifically mandating the requirement to handle the client with the approved guide for ensuring and gaining full trust and confidence of the client regarding the same and only thereafter entering into the contract.
As all the requirements have been duly honored by the salesperson or agent no action needs to be taken or no case needs to be framed out as all the code and statutory requirements have been met out by the concerned working personnel (Government of New Zealand, 2021).
5. Considering the given scenario and the law as applicable, it is necessary to apply section 72 and 73 of the act. Based on these provisions, an individual is guilty of unsatisfactory and misconduct, if the act done is reasonably regarded by agents of good standing, or reasonable members of the public, as disgraceful. Also, unsatisfactory conduct is constituted if the work falls short of the standard that a reasonable member of the public is entitled to expect from a reasonably competent licensee.
Furthermore, there is a need to consider the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012.
Rule 6.4- A licensee can’t intentionally mislead a customer or client, provide them misleading information, or conceal information that is required to be given to them by law or in good faith.
Rule 9.2- If a potential client, customer, or client is under excessive or unfair pressure by a licensee, they should not be allowed to proceed.
Rule 9.3- There must be frequent and timely communication with the client and keep the client well-informed of pertinent subjects unless otherwise advised by the client.
It seems from the above section and provisions of the code that the salesperson’s actions in selling the property, while being aware of the developer’s intentions in purchasing the neighboring land, are unacceptable and constitute misconduct. In addition, this conduct is in violation of the previously mentioned rules.
1. Considering the case problem as being stated and discussed here, it has been found that the advertisement has omitted to name the licensee agent “Ferngully Reality Limited” as an important part for the contacting personnel which is a significant breach under Section 121(2)(C) of Real Estate Agent Act of 2008 which makes it mandatory for both the agent who is duly licensed as per the provision of the act or any other licensed personnel who puts out the advertisement for sale of any property shall mandatorily mention the name of the agent on the advertisement, the failure to adhere to which shall attract forfeitures and penalties under the due procedure of the code. As a Training coordinator, it is advised to all those working in this sector and under my supervision shall honor these fundamental but material requirements which may, if breached avoid and diminish the further proceedings and transactions and could also attract liabilities.
Wrongful intent of agents
2. Considering the case problem as has been discussed herein, in this case, Section 52 of the Real Estate agency act, 2008 shall be concerned and discussed. As per Section 52 of the Act as has been referred to herein. If the applicant has not received the notice of renewal from the Real Estate Authority as he got in the previous year, under this section he can make an application for the renewal of his license before the date of expiry and the grant of renewal shall be approved and considered from the date of expiry of the previous license. Although he has not received an alert notice for renewal on his motion can make an application for the same as he has been in the Real Estate Business for 6 years which duly satisfies the eligibility requirement for license approval under section 36(1)(E) of the concerned act which requires a minimum of 3-year service (Government of New Zealand, 2021).
3. Before addressing Stevie and Marc on the situation, it is important to be aware of some of the act’s requirements. Licensees are obligated to disclose the information required by subsection (1) prior to or when they submit any contractual agreements that are relevant to the transaction, according to Section 136 of the Real Estate Agents Act 2008. According to Real Estate Agents (Duties of Licensees) Regulations 2009, a customer must provide written permission in the required form 2 in order to comply with Section 134 of the Act’s provisions. And in accordance with s134, clients must submit permission in the approved form, along with a valuation. It’s clear from the above sections of the laws that if Stevie intends to buy properties in the name of her friend, there will be a conflict of interest.
As far as the problem in this case study is concerned it relates to the problem of lack of sufficient knowledge about the process and inadequacy thereof. The salesperson is connecting dots between the buyer and the seller. It is not expected reasonably that a buyer in case he wills to complain of any unethical conduct of the agent or the salesperson, is well aware of the complainant protocol and may make an informal complaint to the salesperson. The salesperson shall calmly respond to the buyer or client and make them aware of the complaint committee which is responsible for handling the client complaint against the licensee as being talked about and explained in Section 74 of the Real-estate Agency Act, 2008. The authority under section 74 shall take cognizance upon the complaint and refer or escalate the matter to the Registrar of Register of Licenses who shall thereafter consider the complaint and if the contents of complaint so made are fair enough as per section 74(3) it shall further refer the matter to the concerned agency as he deems fit or refers back the matter to the committee if no valid ground is found (Real Estate Authority NewZealand, 2022).
To explain the complaint, process a demo can be shown as real conduct would make it feasible for the complainant to be well versed with the complaint protocol.
References
Government of New Zealand. (2021, December 3). Disclosure of information as to transaction and conflicts of interest. Retrieved January 29, 2022, from New Zealand Government Website: https://www.legislation.govt.nz/act/public/2008/0066/latest/DLM1152127.html
Government of New Zealand. (2021, April 15). Licensing Norms under the Act. Retrieved January 29, 2022, from New Zealand Government Website: https://www.legislation.govt.nz/regulation/public/2012/0413/latest/DLM4932017.html
Government of New Zealand. (2021, December 1). Real Estate Agency ACt 2008. Retrieved January 29, 2022, from Newzealand Government Website: https://www.legislation.govt.nz/regulation/public/2012/0413/latest/DLM4932017.html
Government of New Zealand. (2021, December 1). Section 50: Real Estate Agent Act,2008. Retrieved January 30, 2022, from New Zealand Government Website: https://www.legislation.govt.nz/act/public/2008/0066/latest/DLM1152024.html
Government of New Zealand. (2021, December 1). Transfer of License: Real Estate Agent Act,2008. Retrieved January 30, 2022, from New Zealand Government Website: https://www.legislation.govt.nz/act/public/2008/0066/latest/DLM1151921.html
Government of New Zealand. (2021, December 1). Unsatisfactory Conduct and Misconduct. Retrieved JanuARY 29, 2022, from New Zealand Government Website: https://www.legislation.govt.nz/act/public/2008/0066/latest/DLM1151921.html#DLM1152060
Government of NewZealand. (2021, December 2). Agency Agreements. Retrieved January 29, 2022, from New Zealand Government Websitw: https://www.legislation.govt.nz/act/public/2008/0066/latest/DLM1152117.html
Government of NewZealand. (2021, December 1). Part 3 Licensing: Real Estate Agent Act,2009. Retrieved January 29, 2022, from New Zealand Government Website: https://www.legislation.govt.nz/act/public/2008/0066/latest/DLM1152008.html
Government of NewZealand. (2021, December 10). Section 127:Real Estate Agency Act,2008. Retrieved January 29, 2022, from New Zealand Government Website: https://www.legislation.govt.nz/act/public/2008/0066/latest/DLM1152117.html
Real Estate Authority NewZealand. (2022, Janurary 30). Complaint Procedure. Retrieved Januray 30, 2022, from Real Estate Authority NewZealand Website: https://www.rea.govt.nz/real-estate-professionals/complaints-and-objections/the-complaints-process/
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