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

What do you do when a property you have contracted to sell is damaged (by flood, fire or whatever) before settlement?  What do you do if you are the buyer of that property?  These critical questions arose for more than a few sellers and buyers across Queensland during the State’s extensive flooding of December 2010 and January 2011.

A year later, with Queenslanders currently remembering and revisiting those dark days, these questions are still of concern to all involved in selling, buying or renting a home.

In one instance last year, the buyer and seller of a flood-damaged property could not agree on what to do.  So they took the matter to court.  Queensland’s Court of Appeal in the recent case of Dunworth v Mirvac ultimately ruled that a woman buying a $2.155 million river-front apartment in Mirvac Queensland Pty. Ltd’s up-market Tennyson Reach development had validly terminated her 2007 off-the-plan contract because of significant damages caused to the apartment by the January 2011 flooding.   Despite quite technical legal arguments raised by the seller/developer’s Queen’s Counsel and Senior Counsel during two hearings the appeal court finally found for the buyer.    Even before the flooding took place, every apartment in Mirvac’s complex of high-rise buildings had dropped drastically in value from the 2007 off-the-plan sale prices.  Needless to say values on most, if not all, flood-affected Queensland properties have dropped drastically since the floods.  Sales of such properties have, of course, been very few and far between.

After Mrs Dunworth had earlier attempted to escape her by now over-priced purchase contract on the basis of alleged false, misleading and deceptive representations by Mirvac particularly regarding the apartment’s elevation, Mirvac obtained a Supreme Court order obliging Mrs Dunworth to settle the contract (and pay some $500,000 interest) by 8th February, 2011.  Less than a month before that date, along with thousands of other  Brisbane and Ipswich properties on or near the river,  the Brisbane River flooded this ground-floor apartment (as it had similarly in 1974 inundated the land on which Mirvac built more than 30 years later).

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

TALE ONE (FROM NEW ZEALAND):

Warren and Rose West’s New Zealand home had been on the market for some time, but they received only one low offer despite reducing their price.  Then they became motivated, if not desperate, sellers when they contracted to buy another home subject to selling their own.  Their “window of opportunity for an advantageous sale” (as one judge subsequently put it) was limited, if they were to proceed with that purchase.  So they quickly sold for $2.75 million, even though they felt their home was worth about $3 million.

Five years, one court hearing and two legal appeals later Wests’ selling agent, KiwiRealty,was ordered to pay them almost $1million for damages, interest, costs and refund of commission.

Wests had discovered, to their dismay, that within six months their buyer, Dave Dagg, on-sold through KiwiRealty to an overseas buyer for $3.555million.   Admittedly Dagg made some improvements, conducted an aggressive international sales campaign in a rising market, but Wests felt betrayed.

They then sued KiwiRealty after dismally discovering further that its saleslady Jenny Spink had not revealed while handling their sale, that she knew Dagg often purchased properties to resell at a profit.  Nor did she disclose KiwiRealty’s ongoing “bird-dog” relationship with Dagg and, in particular, its involvement in several of his previous wheeler-dealing purchases and resales. 

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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

In my last blog posting I wrote about Consumer Affairs Victoria's failure to address bribe induced corruption in the real estate and conveyancing industry. I concluded that posting by saying that I had written to Consumer Affairs Victoria (CAV) again, drawing attention to my blog posting, and promising that I would publish CAV's response. The response that I received confirms the moribund state of CAV's policy on corruption in the real estate and conveyancing industries it supposedly regulates.

CAV's failure to act on the corrupting effects of bribes

In my blog posting "Why Corruption Flourishes Under Consumer Affairs Victoria" I outlined the problem of bribe payments made by licensed conveyancers to real estate agents, and how this has a detrimental effect on both industries and on the consumers CAV is charged with protecting.

I had made a formal written complaint to CAV, providing full details including the names of two licensed conveyancers who openly advertise the fact that they offer bribe payments to real estate agents, together with the name of a real estate agent who had admitted to receiving bribe payments, and requesting that the problem be investigated. I received an arrogant and dismissive response which stated,

"In order for Consumer Affairs Victoria to determine if any breach of the relevant legislation has occurred, Consumer Affairs Victoria would require evidence that a conveyancer has not disclosed the payment or receipt of a commission in relation to a conveyancing transaction to his or her client."

CAV completely ignored the role of the real estate agent, and the failure of real estate agents to disclose the bribe payment to the party being referred, and the fact that such failure constitutes a serious criminal offence to which the licensed conveyancer becomes a party.

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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

Consumer Affairs Victoria (CAV) has a sorry history when it comes to regulating Victorian real estate agents and, in more recent times, licensed conveyancers. It is one thing to be powerless to stop corruption, however it is something completely different when the government regulator not only fails to act, but also refuses to investigate. In this article I will explain how CAV has refused to use its statutory powers, and has itself become a part of the problem.

The bribery problem

Bribes paid to real estate agents for conveyancing referrals - a short history

Client trafficking is a particularly grubby part of the real estate industry, and it has a long history. Long before licensed conveyancers came onto the scene, it was common practice for lawyers to schmooze with local real estate agents in order to win conveyancing referrals. Initially the currency used in the trade of conveyancing clients was the occasional free lunch, supplemented by a bottle of Scotch at Christmas time. If a real estate agent ever had trouble with a client, the "pet" lawyer would quickly step in with some free advice, and may even come to the estate agent's aid with correspondence on the law firm's letterhead.

The more successful conveyancing legal practices tended be those with close ties with real estate agents, and the staff of these law firms came to understand the need to favourably consider the real estate agent's position if a dispute should arise between the firm's client and the real estate agent. It was not uncommon for a client to wonder why his or her lawyer could not see any wrongdoing on the part of the estate agent, even in the most extreme of cases.

These close relationships between lawyers and real estate agents saw real estate agents gain more and more power over real estate transactions. Eventually, real estate agents in the Melbourne metropolitan area gained almost total control over the contract stage of the real estate transaction. Today, real estate agents in Melbourne expect to be permitted to prepare contacts, draft special conditions, and provide legal advice to vendors and purchasers alike. In fact, a real estate agent who is provided with a contract document that is not to his or her liking feels entitled to "switch" the contract without conferring with the vendor's lawyer or conveyancer...

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

Not only had the buyers purported to “charge” the property with the seller’s agent’s commission liability while consequently consenting to the agent’s lodgement of an instrument-stopping caveat over the title, but also the seller had “irrevocably” authorized and directed the buyers’ solicitor to pay this commission at settlement.

After reading Peter Mericka’s excellent blog post, Conveyancing Consumer alert- Beware of the Sneaky Stamp, I was reminded of a fairly recent, not quite as sensational but equally disturbing experience I had involving a real estate agent’s “caveat clause” here in Queensland.   But first I will try to explain simply what a caveat is and does.  Essentially a caveat is a powerful legal document which, once lodged with the Registrar of Titles in respect of a particular property, has the immediate effect of preventing the registration on the title to that property  any legal instrument (such as a transfer from seller to buyer).  A lodged caveat will continue by law to prevent the registration of instruments until it lapses or is cancelled, rejected, removed or withdrawn.  Hence a caveat lodged immediately before or shortly after the settlement date of a property sale will cause chaos for all parties to the contract - as well as to their solicitors and lenders as Peter Mericka has reported.

Back to my real estate agent’s “Caveat clause” story:  I was acting for a single lady selling a Gold Coast property.  Like most agent- trusting real estate consumers she had signed the sale contract (prepared by her First National agent) without first seeking any legal advice.  When the fully-signed contract landed on my desk, I was horrified to see in special condition 3.4 of the contract these words:

Upon signing this contract … both parties hereby charge the subject property and consent to the agent lodging a caveat over the property, pending receipt by the agent of payment of the commission owing.

This obnoxious “condition”, the likes of which I had never seen in a real estate contract in my 30-plus years of legal practice, was preceded by special condition 3.4 - a no less obnoxious but quite common agent-protective proviso:

If at settlement the Agent … does not, as the Deposit Holder, hold sufficient money to satisfy payment of the commission in full, the Seller irrevocably authorizes and directs the Seller’s Solicitor, the Buyer and the Buyer’s solicitor to pay the commission or the balance of it to the Agent at settlement out of the proceedings (sic) of the sale.

Just pause a minute, dear readers, to reflect on this bizarre and extraordinary agent-orchestrated scenario:  Not only had the buyers purported to “charge” the property with the seller’s agent’s commission liability while consequently consenting to the agent’s lodgement of an instrument-stopping caveat over the title, but also the seller had “irrevocably” authorized and directed the buyers’ solicitor to pay this commission at settlement. 

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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

Readers may or may not be aware that Google has announced a new social networking facility that will compete wit Facebook, but is entirely different.

Google+ in a nutshell

Google+ has similar functions to Facebook, such as sending messages to friends, sharing links, chatting, and sharing pictures, but the big difference is that with Google+, you can choose who you want to share these things with. Unlike with Facebook where posting a link will show up on your profile for all of your 500 “friends” to see, Google+ lets you do things a little differently.

For example, the concept of Circles is a major part of Google+. This is where you choose who you want in your contacts. You can have a family Circle, a friends Circle, a co-workers Circle, and so on.

Most of us are friends with a lot of family members and colleagues on Facebook, and we enjoy seeing what they’re up to. However, we don’t always want to share everything with them. Google+ lets you to choose which people you want in what Circle. You then use those Circles for all of your Google+ activity.

Get an invitation

I am one of the early adopters of Google+ and I intend to use it to provide information and updates in future.  At this stage of the Google+ roll out it is necessary to be invited to participate.  I am sending invitations to those who want them.  If you would like to try Google+ by being included in my Real Estate Industry News Circle and/or my Conveyancing Information & Updates Circle, just click on the following link:

Google+ Invitation

Of course, the Australian Real Estate Blog will continue in its present form but Google+ will fill in the gaps between postings.

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 no automatic right to lodge a caveat over a client's property to secure the payment of commission. So some cunning real estate agents are adding a clause to the agency contract by which the client gives the real estate agent permission to lodge a caveat. If a real estate agent adds a caveat clause, the client may be able to argue that the conduct of the real estate agent is misleading and deceptive. Even more so if the clause is inserted into the contract in a manner that makes it downright sneaky!

Bell Real Estate Belgrave is a real estate agency in the Dandenong Ranges, east of Melbourne. My firm was completing the conveyancing for a vendor client who had been a long-standing client of Bell Real Estate, and who had sold his property through that agency. He had always paid his accounts on time and without dispute, and there was never any suggestion that he would not pay Bell Real Estate their commission on this occasion. Thus, my client had a history of paying Bell its proper commissions. So, it came as quite a shock when the real estate agent telephoned our office on the Friday and told us that settlement would not be allowed to proceed on the following Monday because Bell Real Estate were concerned about the payment of their commission.

Commission Rage

Commission rage is a common phenomenon in the real estate industry, and it is often the cause of desperate behaviour on the part of real estate agents who fear the loss of commission. It is particularly prevalent in lean times, and the real estate industry is experiencing lean times at present.

Commission rage may well have been a factor in this case, because when Glen Chandler of Bell Real Estate Belgrave telephoned my office to complain that he did not have enough deposit money in the Bell Real Estate trust account to cover the commission, I could sense that he was both anxious and angry. Chandler called our office and asked if the vendor had instructed our firm to draw a cheque for commission payable to Bell Real Estate Belgrave, and when he was told that we had not been instructed to make any of our client's funds payable to his office, he was put through to me. Chandler demanded that we arrange for a cheque to be made payable to Bell Real Estate Belgrave, as he had not been able to get in touch with the vendor and he did not want settlement to proceed before he had been paid.

The staff member handling the file informed me that she had spoken with the purchaser's conveyancer, but it was too late to have the settlement cheques changed. (Ordinarily the cheques delivered at settlement are payable to the vendor's mortgagee and the vendor, not to the real estate agent. It is usual for the real estate agent to deduct commission from the deposit held by the real estate agent, and to invoice the vendor for any amount outstanding. But these are tough times for real estate agents, and this may be encouraging some to grant themselves another privilege.)

It was Friday afternoon, the cheques had been ordered for settlement on the Monday, and the purchaser's lender had confirmed that it was not possible to change them. There was nothing further that could be done to have the cheques changed at such short notice, and so close to settlement.

I explained to Chandler that the commission would have to be paid after settlement had taken place, as the vendor would be relying on the settlement proceeds to pay it. Chandler was furious. He screamed into the phone, demanding that the commission be paid before settlement, otherwise settlement would not proceed at all. I asked Chandler if the vendor had given any indication at all that he couldn't or wouldn't pay the commission, and he admitted that the only reason he was so concerned was that the vendor may change his mind after settlement and decide not to pay. When I suggested to Chandler that perhaps he was being a little unreasonable, he screamed again, adding that Bell Real Estate would lodge a caveat over the vendor's property so that settlement couldn't take place at all.

Knowing that a debt of commission does not give rise to a caveatable interest in a client's property, I explained to Chandler that he was being rather extreme and that he really wasn't entitled to lodge a caveat over his client's property. In any case, lodging a caveat would be self-defeating, ensuring that the commission would not be paid, because the proceeds of the sale were needed for this purpose. In other words, by stopping the settlement, Chandler would also be stopping the payment of his own commission - a rather silly strategy.

Chandler would have none of it. He was in a heightened state of anger and he screamed into the phone again, "No cheque, no settlement, we'll slap a caveat on that place right now, we've got a clause in the sale authority that says we can!"

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

I would like to hear from lawyers who would be interested in selling real estate in competition with real estate agents.  This is a service offered by lawyers in a number of other countries, and it is time to develop the concept here in Australia.

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

Rabies is a terrible affliction. It can can quickly turn a friendly family pet into a belligerent biting beast. Commission rage can have a similar affect on real estate agents, changing them from ordinary salespeople into cruel and manipulative bullies. Like rabies, commission rage cannot be treated. However, early detection means that a consumer can take precautions against its damaging effects.

What makes commission rage particularly dangerous is the fact that it is not immediately apparent. A seemingly kind and friendly real estate agent may be in the grip of advanced commission rage, without showing any symptoms - that is, until the vendor or purchaser attempts to take control, or becomes reluctant to proceed with the sale. It is at this point the lip curls, and the snarling starts.

In this posting we examine commission rage, its symptoms and effects, and what consumers can do to minimise the impact of this horrendous illness.

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OPINION
by George Rousos
Director
Industry Training Consultants
george@itc.nsw.edu.au

François-Marie Arouet, better known by the pen name Voltaire, was a French writer and philosopher famous for his wit and for his advocacy of civil liberties, including freedom of religion and free trade. Voltaire was a prolific writer and produced works in almost every literary form including plays, poetry, novels, essays, historical and scientific works, more than 20,000 letters and more than 2,000 books and pamphlets. One of Voltaire’s famous sayings was, and I quote:

"We must distinguish between speaking to deceive and being silent to be reserved."

I echo and remark this famous quote of Voltaire’s, often forgotten during the heat of the negotiation battle and is what relates to misleading and deceptive conduct.The action for misleading or deceptive conduct is increasing in its application with the development that silence in most cases will amount to a breach of s 18 of the Competition and Consumer Act 2010.

The use of an agent is common practice in commercial transactions, however, under the provisions of both state and federal laws, it would appear that an agent found to have engaged in partial disclosure could be found to have engaged in misleading or deceptive conduct.

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

This story does not end, as many do, in a court case.  But it begins, as many do, with a property advertised for sale:

"Charmingly preserved Art Deco features abound in this ground floor cavity brick apartment.  Ornate plaster ceilings and cornices, wide skirting boards and architraves, polished timber floors all lovingly presented.
Two bedrooms – one with access to the study, a large, light, eat-in kitchen and, typical of the era, a black and white bathroom with bathtub.  Lifestyle opportunity for those who appreciate this era and want to take advantage of a rare opportunity.
Easy access to local restaurants, a direct train to the City and a bus-stop at the door.
Four units on each of two levels, the majority owner-occupied, a body corporate with reasonable levies and very friendly to pussycats in the past.
No work to be done.  However  you could have some real  fun gathering together furnishings to enhance the style.
Call now for an appointment.  Act quickly as Art Deco units are sought after by connoisseurs."

When first home-buyer and single working-mum Cathy read this agent’s spiel, she did act quickly.  She arranged an inspection, loved what she saw and immediately made an offer.  Unfortunately someone else made a better offer, and Cathy missed out. 

Undeterred, Cathy wrote to the owners of the other units in this pre-World War II building which had been strata-titled some 25 years ago.  Explaining how she just adored Art Deco architecture, Cathy asked if any owner might consider selling.

The owner of the unit adjoining the one Cathy had inspected soon replied.  He was interested in selling.  The property was not listed with an agent so Cathy and the owner negotiated privately, reached an agreement then contacted their solicitors about preparing a formal contract.

Cathy’s solicitor made sure this was subject to finance and included protective building/pest and body corporate inspection conditions.

With the contract all signed up, Cathy applied for finance.  Her bank was happy with its valuation and approved a loan.  Cathy’s solicitor’s body corporate records inspection disclosed nothing untoward, although a sinking fund forecast indicated there would be increasing but manageable maintenance expenses over coming years.

Everything was looking good with the building/pest inspectors still to report.  Cathy was devastated when both the building and pest reports came in far from favourable.

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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

This is my first attempt at video blogging.  Please provide me with your feedback, and any tips you have to offer on improvements I can make for future video blog postings.

I've tried to keep it informal and simple (note the open-necked shirt and unscripted delivery), but I'll be guided by readers as to what's best.

To view the video CLICK HERE 

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

To my mind agents particularly should be prohibited from giving buyers so much as a bus timetable, and from recommending even the local Chinese restaurant. Needless to say, solicitors and other service providers to residential buyers should also be prohibited from acting if they are not independent of everyone else involved in the transaction.

A recent edition of Australian Property Investor Magazine ( http://www.apimagazine.com.au/ ), on sale at newsagents across the country, included a case study on victims of a real estate scam. Cassie and Luke were buyers from out-of-town. They were told by a Queensland agent that the sellers of a certain property would refuse to accept anything lower than $420,000. So the buyers offered this and were pleased when it was immediately accepted. Less than a year later they needed to sell and discovered, to their horror, that the best price they could get was $400,000. Moreover, they found out that their sellers had listed the house for sale for $350,000. So Cassie and Luke had paid $70,000 more than the sellers' (undisclosed) asking price.

Queensland's Fair Trading Minister commented in API on how these buyers might get compensation from a Claim Fund on account of the licensed agent's conduct. Here are the essence of my comments which API published for balance:

Wouldn't you love an agent to sell your property for $70,000 more than you had listed it for? It beggars belief that in this case the agent was not also rorting the seller in some way.

Whatever, this sort of despicable scam can happen anywhere in Australia. Crooked estate agents are not confined to Queensland. If you have lost money as a result of being misled by an agent this way (or in any other way), every State and Territory has a government-established fund from which you can claim compensation. Whether you get any compensation, however, is another question.

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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

Enzo Raimondo is the CEO of the Real Estate Institute of Victoria (REIV), but he is not a lawyer. In fact, Mr. Raimondo is not even a licensed real estate agent, and he is certainly not a qualified real estate valuer. So why is Mr. Raimondo telling consumers about the role(s) of professional real estate valuers?

Enzo Raimondo, CEO of the REIV, has a regular column in the Saturday Age, called "Market Talk". Unfortunately, Mr. Raimondo misuses his column on a regular basis. In his most recent piece, Mr. Raimondo attempts to establish a false distinction between what he describes "present" valuations (provided by professional property valuers) and "future" valuations (provided by Licensed Estate Agents).

Misleading and Deceptive Assertions

Here is what Mr. Raimondo told his readers in The Age newspaper on Saturday 5 March, 2011 (Domain p.11):

"Valuers can serve many purposes

Valuers assess the value of property. Their services have a wide application, such as determining the valuation used by municipal authorities and state government to assess rates and taxation liabilities and estimating how much a property may be worth in the event of a compulsory acquisition.

When you take out a mortgage, the financial institution uses a valuer to determine the extent of the loan it's prepared to make...

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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

It you can't make it, then fake it.  In the real estate game this translates as a withholding of information so that the public will inevitably draw false conclusions.

Real estate agents are always keen to trumpet their triumphs.  We see all kinds of statistics about clearance rates, sales before, sales after etc. etc.; none of which have any real relevance to the average of consumer.  One real estate agent even uses Twitter to constantly bombard readers with updates on his weekly figures with "100% sold this week" next to a photo of himself with his mouth wide-open as though he's called out "SOLD" to some lucky purchaser.

While they're very quick to claim that their "negotiations skills" or "professionalism" or "marketing strategies" bring about sales (when in fact real estate sells itself) and to use statistics to prove it, what happens when the wind changes and purchasers become thin on the ground?

It's too much to expect that the industry will confess that it's not the real estate agent's fault when properties don't sell, because this would also amount to a confession that estate agents are just as irrelevant when properties do sell.

 So, when the statistics that support the myth of the professional estated agent make the estate agent look unprofessional and irrelevant, what's to be done?

Follow this link to find out: Estate Agents Covering Up Failed Campaigns