OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

I believe that the real estate industry in Victoria is the most corrupt in Australia. This is confirmed time and again, not only by the conduct of individual real estate agents, but also by the behaviour of the peak body representing real estate agents, the Real Estate Institute of Victoria (REIV). We have seen how the REIV condones criminal conduct by providing its members with REIV prepared contract conditions, encouraging estate agent involvement in the preparation of sale offers and ignoring the growing problem of bribery and "referral fees". As if to confirm its role in maintaining the right of real estate agents to cheat and deceive, the REIV has now voted against a measure by which, according to the former head of its own ethics committee, "...almost all dubious price manipulation practices would be eliminated".

According to Herald Sun journalist Craig Binnie:

"ESTATE agents have voted down a proposal to stamp out deliberate under-quoting on properties being auctioned.

A secret committee ballot within the Real Estate Institute of Victoria voted nine to three against a motion that would have forced vendors to publish the prices they were willing to sell at.

The motion proposed that the REIV ask the State Government to introduce legislation requiring vendors to publish their reserve price before auction.

Complaints from angry buyers have been brushed aside by agents, the REIV and Consumer Affairs Victoria.

The former head of the REIV's ethics committee, John Keating, said his motion was voted down despite growing discontent about the "misleading and deceptive practices of many estate agents in over-quoting to vendors and under-quoting to purchasers".

Mr Keating, the managing director of Keatings Real Estate, said if vendors and estate agents were required to publish their reserve price, almost all dubious price manipulation practices would be eliminated."

(Craig Binnie Herald Sun June 29, 2009)

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OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

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OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

Imagine traveling in a taxi through an unfamiliar part of your city. Suddenly, the taxi driver confesses that he doesn't travel in that area very often, he is too frightened to continue, and he is going drop you off at the next corner. He tells you that it will be up to you to find another taxi driver at that late hour - you will have you make your own arrangements. The taxi driver then takes payment for having delivered you to this dark and unfamiliar place, and drives off into the night. What would you do?

An increasing number of consumers who use Licensed Conveyancers are experiencing something similar to this. It was a common occurrence before the new Conveyancers Act 2006 was introduced, and it was expected that the new-found professionalism of the conveyancers' industry would result in a more professional approach to client welfare. Unfortunately, old habits die hard, and client dumping is as prevalent as ever, if not more so.

Conveyancing client dumped

A few days ago I had a distraught woman telephone me with a typical example of client-dumping. According to the woman, she had engaged a Licensed Conveyancer at the very start of her conveyancing transaction, which involved the off-the-plan purchase of a city apartment.

Everything was fine while the matter involved no more than paper-shuffling processes, but when a few small difficulties arose this changed.

Apparently, the Licensed Conveyancer became quite flustered when questions arose regarding the conduct of the developer. When the conveyancer found that she was having to write to the vendor's lawyers on behalf of her client, provide legal advice to the client, and assume responsibility for the client's legal well-being, it all became a bit too much.

The conveyancer explained to the client that she charges a very low fee for "straight-forward" matters, and this matter was becoming anything but "straight-forward". Moreover, the matter involved legal issues that were beyond the capacity of the conveyancer, and a lawyer's expertise would be required. And to cap it all off, the time and effort the conveyancer was having to invest in the matter was making it unprofitable for the conveyancer, so that she would be operating at a loss to complete it.

Why was the conveyancer complaining to the client? And what was the significance of all of this for the client?

The conveyancer went on to explain that she could no longer act for the client, and that the client would have to find a qualified lawyer to take the matter to settlement. Effectively, the client had been dumped, and settlement was just a few days away!

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OPINION
by Tim O'Dwyer M.A., LL.B
Solicitor
Consumer Advocate
watchdog@argonautlegal.com.au

Some agents seem to delight in making it difficult for novice home-buyers, as the story below reveals.  The whistle-blowing agent here was not known to me and his detailed account arrived completely unsolicited.  I subsequently phoned him and suggested that, for what it might be worth, he should personally report the whole matter to the Office of Fair Trading.  But don’t hold your breath, I added.

"Your article The Battle Of Multiple Offers  has motivated me to forward details of my recent experience of unprofessional behaviour.

I am the principal of an agency on the Gold Coast.  I have been selling real estate on the Gold Coast for the past 13 years.

As real estate agents, I believe we are often prone to disassociate ourselves from experiences of unethical and unprofessional conduct by our peers, due in part to the “lame duck” perception of our regulating body.  But more importantly to the fact that we are loath to take on the confrontation of a tribunal hearing and also recognise that some of our own office procedures and administration may very well be proven to be less than perfect.

Last Wednesday, I received an enquiry from a lady about a home we had advertised in a real estate magazine.  I advised her that the property had been sold.  In further conversation with her, I discovered that she and her husband were first home-buyers and approved for finance up to $300,000.  They were finding it almost impossible to purchase a property on the Gold Coast for themselves and their two children.

I informed her we currently had nothing suitable for her on our books, but made a commitment that I would endeavour to find this family a property within their budget.

Within a couple of days, I contacted the wife by phone about a property listed at $259,000 by another Coast agency.  I advised her to contact that agency direct, as I did not see how a shared commission would be in her best interest.  She promptly phoned the agency, was given the address of the property and completed a “drive-by”.

The subsequent anguish and humiliation inflicted upon this lady and her husband after her next contact with that agency is an indictment of our industry and I find myself unavoidably seeking redress on their behalf..."

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OPINION
by Tim O'Dwyer M.A., LL.B
Solicitor
Consumer Advocate
watchdog@argonautlegal.com.au

Vic Murphy was a former real estate agent and – scout’s honour -  one of the nicest, most decent blokes I have ever known.  Many years ago my wife and I bought a holiday unit on Queensland’s Sunshine Coast through his agency, Vic Murphy Real Estate.  We remained friends with Vic until he died in 2005.  Vic Murphy Real Estate still operates at Maroochydore and in the office window, along with the usual photos of properties for sale, is this Anzac Day story which I wrote (for a number of publications) about the remarkable man who founded the agency.

Every Anzac Day, retired real estate agent Vic Murphy would recall how he spent that day in 1945.  This former RAAF fighter pilot was at that time still feeling lucky to be alive after his Spitfire was shot down over Nazi Germany.

On April 25th 1945, with only a week or so remaining before the war in Europe would come to an end, 25 year old Vic was being held in solitary confinement in a 2m x 3m cell on a Luftwaffe (German Air Force) base.  “My bed was a table with a straw mattress on it,” he recalled.  In adjoining cells were British soldiers and a number of other fighter pilots.  But they were not allied pilots.  These prisoners were Luftwaffe officers who refused to fly because, Vic explained, “they were scared of our Spitfires and Mustangs, and because of their losses from our ground-strafing.”

In Vic’s case it was a matter of “just doing a job, flying for your country and doing the best you could.”  Which is how Vic Murphy modestly described his World War II service which effectively ended on April 19, 1945 during a sortie over enemy airfields in Northern Germany to ensure the few remaining Luftwaffe planes stayed on the ground.

Unfortunately some enemy aircraft were already in the air, and being flown by German pilots still keen to do their defensive job.  On that spring afternoon Flying Officer Murphy’s four-plane section found itself attacked and outnumbered by a formation of Focke Wolfe 190s which, he still suspects, were factory-fresh because they had no camouflage on their fuselage.

His later debriefing report for the Royal Air Force, to which he was attached, described one of the last aerial dogfights in the European theatre:

“I was in a steep turn attacking a FW 190 when I saw another FW 190 firing at me, but as his angle off was 60 degrees I did not think he could hit me.  But then my engine cut and I caught fire, so he must have hit me.  I bailed out and landed south of Wittenburg.”

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OPINION
by Shannyn Hunter
Conveyancer Lawyers Conveyancing

The Budget has good news for first home buyers: the cut-off date for the First Home Owner Boost (FHOB) will be extended by six months.

In Parliament Tuesday night, Treasurer Wayne Swan announced, "the First Home Owners Boost has supported employment and helped 59,000 Australians buy their first home. In light of the continuing global uncertainty, and the success of this initiative, tonight I announce that we will extend the Boost for a further six months — including three months at the full rate, before stepping it down".

The FHOB, announced in October last year , gives $7,000 to eligible purchasers when they buy an existing home, and $14,000 for a new home, on top of the existing government grants in the First Home Owner Scheme.

The FHOB was set to end 30 June this year. Now, if the legislation is passed by Parliament, first home buyers will be able to get the extra cash until 30 September 2009, after which the Boost will be halved until 31 December 2009 when it will end. To be eligible the contract must be signed by the vendor on or before the cut off dates.

Interested purchasers should visit the State Revenue Office website which is updated as the details become available.

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OPINION
by Tim O'Dwyer M.A., LL.B
Solicitor
Consumer Advocate
watchdog@argonautlegal.com.au

Call me old-fashioned, but part of my personal property investment strategy has always been never sell! At the same time within my law practice over many years my advice to conveyancing clients, intending to sell properties, has always been: Try to find a buyer yourself without the expense of a real estate agent s commission . The vast majority of my seller clients engaged agents anyhow. Some took my advice, but later listed with agents. Only a handful, I must admit, ever made successful D.I.Y. sales.

Recently I found my self needing to sell a property. A little old lady client had some years earlier made a will appointing me her executor. When she died the major asset in the estate was her former residence. Because the will provided for distribution among a number of family beneficiaries I was obliged, as executor, to sell this home. Once the sale had settled the estate would be wound up with the beneficiaries receiving their respective shares.

Although another solicitor in my office handled the legal work involved in administering the estate, I made the final decision at each step. The first step, when it came to selling the house, was to find out what it was worth. I decided to obtain a (free) market appraisal from an estate agent or two, as well as pay for a formal valuation from a valuer.

The first agent s written appraisal was that this property would sell on the current market for approximately $280,000 to $300,000 . He explained that this range was based on current market conditions, the benefits of the property and comparable sales of similar properties within a reasonable time period. At the same time he stressed that, although every care had been taken in arriving at his appraisal, it was an estimate only and was not to be taken as a sworn valuation . Moreover, he would not be responsible should the estimate or any part there of be incorrect or incomplete in any way.

A second agent put nothing in writing but, after inspecting the property, advised by phone that he thought it was worth about $340,000 because it was within a zoning area for duplexes . A quick inquiry at the local council showed that this house was in no such zone.

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OPINION
by Tim O'Dwyer M.A., LL.B
Solicitor
Consumer Advocate
watchdog@argonautlegal.com.au

What do you do when your property has been listed for sale and your agent refuses, on the basis of the Privacy Act, to give you the names of prospective buyers introduced to your property? Well, you stick it right up your agent as clients of mine recently did.

These folk had listed their home with a local agent who was a member of the Real Estate Institute of Queensland (REIQ). Their listing agreement with the agent, unusually, did not provide for a sole or exclusive agency. Rather, it was an open listing which meant my clients had the contractual right to try to sell their home themselves. So, while their agent showed buyers through the property, my clients placed their own adverts on the Internet and dealt with a number of consequential private enquiries. When one of these Internet buyers offered to buy at the right price, a private sale was negotiated subject to the parties’ solicitors finalizing formal and binding contracts.

While I was taking instructions on the proposed sale contract, I asked my clients if their property had been listed with an agent. I wanted to ensure that there would be no risk of any agent’s commission claim down the track. The clients told me what they had done and handed me a copy of their open listing agreement. After showing them the fine print, which stipulated how the agent would legally become entitled to commission if the agent was the “effective cause” of any sale, no matter when it occurred, I explained to my clients what this essentially meant: Commission would be payable on their private sale if the agent had, in fact, introduced their buyer to the property. Hence I advised that it was important for them to ask the agent to provide them with the names of all prospective buyers introduced by the agent. Hopefully their Internet buyer would not be on the list but, if he was, they would need to renegotiate their sale price to allow for the agent’s legal commission entitlement.

“No way will I give you any buyers’ details,” said the agent in effect. The formal rely to his clients’ email was courteous, uncompromising (and, of course, total nonsense)...

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OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

Last year Scott Goodman, a licensed conveyancer and owner of Goodman Group Conveyancing, launched what he called the Goodman Group Conveyancing Referral Program - a scheme whereby a bribe of $150 is paid to a real estate agent each time a client is referred by that real estate agent to Goodman Group Conveyancing for conveyancing services. Anecdotal evidence suggests that Goodman's scheme has been a runaway success, but questions arise over the ethics and legality of the scheme. I wrote to a prominent real estate agency to find out how they deal with the bribe payments.

In a previous posting titled "Conveyancing Bribes - A New Growth Industry" I exposed the blatant use of bribery in the conveyancing industry. The issue was also raised in The Australian newspaper (see "Paid referrals distort market in conveyancing").

I have since been told by licensed conveyancers in different parts of Melbourne that their businesses have suffered because the real estate agents on whom they rely for client referrals are now channelling their referrals to Goodman Group Conveyancing in return for bribes payments. I also became aware that the General Sales Manager of Rosier Real Estate, Mr. David Priest (also a part-time lecturer in real estate practice and ethics), had been sending clients to Goodman Group in return for bribe payments.

In December, 2008 I wrote to the Principal of Rosier Real Estate, Mr. Kurt Gunther:

"Dear Mr. Gunther,

It has been reported to me that Rosier Real Estate accepts bribes from conveyancing business"Goodman Group", operated by Mr. Scott Goodman.

I understand that these bribes, also known as "referral payments", are paid to Rosier Real Estate each time Rosier Real Estate refers a client to Goodman Group for conveyancing services. According to the information I have received, your General Sales Manager Mr. David Priest is your office's contact person for Goodman Group and that he is responsible for channelling the bribes from Goodman Group to Rosier Real Estate...

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Opinion by Neil Jenman
Consumer Advocate

Within an hour of reading this article another investor will almost certainly have been ripped off in another dud Queensland property deal. That's how often it happens.

While there is no official 'Register of Rip Offs', it's not hard to work out the figures. Based on the number of sales made - especially to novice investors (often from interstate) - I estimate that a thousand people are ripped off in Queensland property deals every month. And that's probably conservative.

The rip offs are quite simple. Investors pay too much for the properties they buy. And, what's worse, the vast majority don't know they've been ripped off. Some never realise it. This is especially true during a boom.

Let's say the true value of a property is $350,000 and the naïve investor buys it for $450,000. A few years later, the property may be worth $650,000. The naïve investor has made a [gross] profit of $200,000. He thinks he's done well. The poor chump (and there are plenty in this category) may even buy a second or third property (and unknowingly get ripped off a second and a third time).

Of course, when the market is stable (or rising only moderately) some of these investors do discover they've been ripped off. The discovery happens if they come to sell. They go to a local agent and are horrified to learn that the property they bought for $450,000 is only worth $400,000, at best.

Right now, especially in Queensland, hundreds of novice investors are buying house-and-land package deals. Well, actually, I think it's wrong to say they are "buying" because that infers they acted wisely.

No, these investors are being "sold". They are being talked into buying properties that are way over-priced, often by as much as a hundred thousand dollars, certainly fifty thousand dollars. The reason so many of these novice investors are buying is because skilled salespeople are making the buying process so easy. "Just sign here and we'll take care of everything."

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OPINION
by Tim O'Dwyer M.A., LL.B
Solicitor
Consumer Advocate
watchdog@argonautlegal.com.au

Acting for both parties is an unwise, high-risk practice for solicitors and their trusting clients. It should be prohibited absolutely by law.

Brisbane solicitor Richard Ebbott is mentioned twice in real estate rebel Neil Jenman’s book, DON’T SIGN ANYTHING! Jenman describes how Ebbott handled the conveyancing for two Sydney clients who lost more than $50,000 each after buying two overpriced Brisbane townhouses. Then four years later Ebbott acted for Victorians Murray and Helen Casey who had been pushed into signing for a Gold Coast unit overpriced by $70,000.

After discovering the distressing truth Helen Casey called Ebbott to cancel. He said, "You have signed and you cannot pull out and if you do you will be sued by the property owner." Funnily enough, three years after that Ebbott told Sydney clients John and Barbara Hamilton, who wanted out of their overpriced contracts, almost the same: "You both signed the contracts for the purchase of the two properties, you did sign freely and voluntarily and without any pressure from anyone."

Ebbott finally faced a little justice when he pleaded guilty to professional misconduct charges laid by the Queensland Law Society in the Solicitors Complaints Tribunal (SCT).

The charges arose from a number of conveyancing matters from 2001 where he acted for the sellers and their buyers. The SCT fined Ebbott $25,000.00 with costs. It took into account, among other things, his plea of guilty, his professed remorse and his since-altered practice methods. Ebbott undertook not act again for both parties in conveyancing matters.

In the lucrative transactions in question, he had received two lots of professional costs while a marketing agent, who had referred the buyers to him, collected substantial commissions from the settlement proceeds. There was evidence, the SCT found, of purchase prices inflated to cover the middleman’s marketing commissions. These commissions were disclosed to the sellers but not to the buyers. In most transactions the payments were made on top of regular commissions paid to the selling agents. The marketing commissions ranged from $10,450.00 to more than $30,000.00. On one sale the marketeer’s commission was one third of the purchase price.

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OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

Real estate agents have been parading about in their "negotiator" suits like the naked emporer in his invisible new clothes, trying to convince consumers of their competence in real estate negotiations. I have had enough of incompetent real estate agents' stupid mistakes, deceptive practices and consumer indifference. I have now banned real estate agents from the negotiation stage of the real estate sale!

In past weeks my office has received the usual number of formal written contracts prepared by real estate agents, containing dumb mistakes:

"Settlement: is due on 31 February, 2009"

incomprehensible special conditions:

"1. Should the offer be accepted by the Vendor, a more detailed contract be drawn up with specifications to suit purchasers requirements, but within the builders proposed budget, to the satisfaction of both parties' solicitors."

and deceptive special conditions (the classic deceptive special condition is the one circulated to real estate agents by the Real Estate Institute of Victoria (REIV) which limits the purchaser's right to end the contract to rare situations where the building is affected by a major structural defect).

Enough is enough.  We now inform our vendor clients and their real estate agents that all expressions of interest are to be directed to us, and that we will attend to all matters associated with negotiation of the sale, preparation of the contract, and completion of the sale and conveyancing.

Real estate agents are prohibited by law from conducting genuine negotiations

Few real estate agents, let alone real estate consumers, are aware that real estate agents are prohibited from providing legal advice or performing any of the legal work involved in real estate negotiations, and that they face a penalty of imprisonment for 2 years if they do so.

In the past we have required real estate agents to consult us before presenting offers to vendor clients, and have had to put up with arrogant and reckless real estate agents ignoring our instructions and causing problems for vendors and purchasers alike.

We are no longer allowing real estate agents to participate in real estate negotiations, and we have set out a number of reasons in support of our stance.

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OPINION
by Tim O'Dwyer M.A., LL.B
Solicitor
Consumer Advocate
watchdog@argonautlegal.com.au

The Supreme Court of New South Wales recently ruled that the buyers of an off-the-plan property were entitled to a rescission of their contract and a deposit refund because the estate agent for the developer had engaged in misleading and deceptive conduct. These inexperienced investor-buyers had relied on baseless representations in newspaper advertisements that the value of the inner city terrace units being marketed by the agent would double in five years.

A major law firm soon issued a media release suggesting that, in a falling market, off-the-plan buyers might try to get out of deals done years earlier by relying on pre-contractual mis-representations. Property developers and their agents were warned “to carefully check the wording of their advertisements or other representations” to make sure they were “based in fact”, while any statements regarding future value must have a “reasonable basis” with further information being provided to qualify those representations.

However when sellers’ agents get found out on their porkies, some buyers will still settle but later sue the lying agent.

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OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

Neil Jenman does most of his fighting on behalf of consumers who have fallen victim to real estate corruption. But who fights for Neil Jenman when powerful and corrupt real estate industry forces direct their collective fury at him by way of a highly orchestrated and well resourced smear campaign? A group of Jenman's supporters have decided to fight anti-Jenman forces through a new website.

The popular ABC Television program Australian Story profiled Neil Jenman in "The Avenger" and describes him as follows:

"Neil Jenman made a fortune in real estate before deciding to switch sides and act for consumers who’d fallen foul of the property market. It was a controversial move that won him as many enemies as it did friends.

Jenman uses unorthodox methods to make his point - stalking the ‘bad guys’ for answers, often in the company of television cameras. But he has no regrets about his style. The adrenaline of the chase coupled with naming and shaming the perpetrators can, he says, lead to quick and effective results."
Australian Story - ABC Television 29 October, 2007

Protecting consumers has not made Jenman popular with those who exploit consumers, and the spruikers, marketeers and their dodgy acolytes have come to fear and despise him. Unable to legitimately defend their improper conduct, they have resorted to smear and psychological attacks. According to Jenman's wife Reiden, one has even published the Jenmans' home address on the internet.

Jenman Fights Back - The Truth

The website Jenman Fights Back - The Truth states its purpose quite clearly:

"Jenmanfightsback.com.au responds to smears spread by spruikers about Neil Jenman. We truthfully confront the lies, twisted-truths and rumours about one of the country’s most dedicated consumer advocates. The purpose of this site is to help protect Neil Jenman, the man who protects consumers."

Personally, I think the truth of the situation is neatly bundled into a short quote from Jenman:

"If crooks liked me, I wouldn't be doing my job," says Jenman. "I am proud to be so disliked by so many rogues."

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OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

When unknown visitors rummage through children's clothes during a property inspection it can give rise to all sorts of fears and concerns. It is now well known that theft and "snooping trauma" are common occurrences during real estate inspections conducted by real estate agents. Real estate vendors are advised that they should never allow a real estate agent to conduct property inspections. The only person qualified to protect valuables, privacy and safety during a property inspection is the vendor.

We regularly receive reports of theft and snooping during real estate inspections, and the following is just one more:

"We had heard the horror stories about valuables being stolen during open for inspections, breaks ins etc. so we did our best to minimize the risk by hiding our valuables away and taking all keys with us during our open for inspections.  What we hadn't anticipated was that it would be our real estate agent who would expose our family to a higher risk.

 At the beginning of our contract we specified that photo id must be provided for all people who came to  open for inspections.  However, one of the representatives from our agency not only managed to advertise the wrong time on the internet not once but two weekends in a row without notifying us.  Because the agent and those people that saw our house on the internet (the only place the house was advertised at the time) turned up one hour early, when our family was swimming in the pool, we knew that 9 groups of people (mostly groups of 2-3) had attended that day. 

At the end of the open for inspection, the agent showed us a loose piece of paper (not even the proper record) with just 5 names on it.  When we queried this, we were told it was "a new strategy".  The agent let around 20 people into our house and only asked them on the way OUT if they were interested,  if they said yes, he would take their name and contact number.  So the other 15 of so people who went through our home, searched through our children's wardrobes etc.. we have no idea who there were.

This is only one of our shocking experiences with this very prominent agent. Do we have any recourse?"

See also:

Open For Inspection? Open For Exploitation!

Open For Inspection - Open For Theft!

What advice can we offer to a vendor who is concerned about the safety of their property and valuables during inspections? The only responsible advice we can offer is to ensure that the inspection is carried out by, or under the strict supervision of, the vendor. All visitors must be accompanied through the property by the vendor. The reasons for this advice are set out in full in a Consumer Alert titled "Open House Inspections - Warning on Estate Agent Property Inspections".

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