Is Real Estate Agency liable ?

[LearningMan]

Hi all, just thought I'd share a recent experience.

I purchased home recently where RE agent claimed home was built by X ( X= a reputable building company known for it's quality build ). I paid a premium as I relied on this information.

4mths after settlement I learnt that in fact home was not built by X despite advertising claims and RE agent continous boasting of quality.

I feel I have a case here given the Dept of Fair Trading's definition of Misleading and deceptive conduct. "Real estate agents need to be careful. Anybody who relies on what an estate agent says or does, and loses money because they have been misled or deceived, can take them to court."

Rest of details can be seen http://www.accc.gov.au/content/index.phtml/itemId/816458.

I have tried to resolve with agent and they clearly don't want to know anything about it saying I should have read the disclaimer and that any dispute should be between myself and previous owners !

I am interested in hearing others opinions and thoughts here ...

 

[Belu]

have you lost money? did you get a building report when you bought? were you over the valuation?

 

[LearningMan]

have you lost money? did you get a building report when you bought? were you over the valuation?

No I did not lose money. I paid a premium.

 

[Belu]

so valuation = what you paid? then you cant say you have been negitivly impacted on price as the valuer (an third party) has agreed it is worth that much.

Whilst you have been misled i doubt the agent knew different and was told as much by the vendor so you would have a hard time getting anything out of them in claims.

 

[Player]

Check with your solicitor what (if any) recourse you have.

Whilst hindsight is a wonderful thing, I will pass on a saying that I learnt from a property developer. "Look, don't listen."

Whilst listening is a valuable skill, by "looking" we are actually investigating for ourselves and validating whatever claims are made by rea's or others in the purchasing of a property.

Thanks for sharing your experience with us LearningMan.

 

[twobobsworth]

Have a read of these

http://ww5.cch.com.au/atp/atp560.html

http://www.tresscox.com.au/resources/resource.asp?id=108

 

[LearningMan]

so valuation = what you paid? then you cant say you have been negitivly impacted on price as the valuer (an third party) has agreed it is worth that much.

Whilst you have been misled i doubt the agent knew different and was told as much by the vendor so you would have a hard time getting anything out of them in claims.

Belu - yes ... I did hire a professional to value the property. They were also misled and told that the home was built by X.

Given the agent is a local and prides himself on this I still believe both the valuer and I were misled despite their disclaimer.

Huge lesson learnt by all means ... I don't think I should however let an agent get away with this conduct.

 

[LearningMan]

Have a read of these

http://ww5.cch.com.au/atp/atp560.html

http://www.tresscox.com.au/resources/resource.asp?id=108

Wow ... more evidence to support my claim. Thanks for sharing this. The more cases I have the better I will be able to build my case.

 

[evand]

I know agents are dishonest (or should i say the RE industry is dishonest) but why didn't you check with building company X?

Belu - yes ... I did hire a professional to value the property. They were also misled and told that the home was built by X.

 

[LearningMan]

Good question !!!!!!!!!!!!!!

Both myself and the valuer had no reason to believe the home was built by anyone else ! The home is a copy of homes build by builder X.

We bought the home for a number of reasons other than it was built by builder X.

The point I am trying to make is that we paid a premium for it been advertised and marketed as built by builder X. This was false information and should have been checked by the RE agent. This is what my claim is about.

 

[Raddles]

HI there
it may be time to ask a solicitor
There does seem to be a suggestion of misleading and deceptive conduct and I have known real estate agents having to make good as a result.
Your claim may be for an amount of damages - which is the premium you paid for the property.
You will have to check the fine print in the documents you signed - to see whether any representations have been excluded.
thanks

 

[LearningMan]

Your claim may be for an amount of damages - which is the premium you paid for the property.

This is correct ! This is the case that I will tbe pursuing with local govt bodies.

 

[Raddles]

Hi there
once again I think you should speak with a solicitor - government bodies are not going to be able to deliver a damages claim amount to you - they can rap the real estate agent over the knuckles and perhaps affect their licence.
If you are going to make a claim against the real estate agent - you do need to get informed advice.
thanks

 

[LearningMan]

Hi there
once again I think you should speak with a solicitor - government bodies are not going to be able to deliver a damages claim amount to you - they can rap the real estate agent over the knuckles and perhaps affect their licence.
thanks

Agree ... consumer tribunal however can order $$$'s to be paid.

 

[Ausprop]

Both myself and the valuer had no reason to believe the home was built by anyone else ! The home is a copy of homes build by builder X.


.

if you (as the buyer) as well as the valuer were fooled, then what hope did the agent stand?

 

[LearningMan]

Good point.

Of interest is the last paragraph here take from fair trading dept web site ..."Agents cannot avoid liability simply by claiming that the buyer or consumer should have made reasonable enquiries and checked the information provided. Agents are responsible for their words and actions in their dealings with their clients."

Rest of article here http://www.fairtrading.nsw.gov.au/Property_agents_and_managers/Agency_responsibilities/Advertising_guidelines.html

 

[Ausprop]

Good point.

Of interest is the last paragraph here take from fair trading dept web site ..."Agents cannot avoid liability simply by claiming that the buyer or consumer should have made reasonable enquiries and checked the information provided. Agents are responsible for their words and actions in their dealings with their clients."

Rest of article here http://www.fairtrading.nsw.gov.au/Property_agents_and_managers/Agency_responsibilities/Advertising_guidelines.html

hmm I think you may be reading too much into it but if you decide to go him then let us know how you go. Apparanlty even those seller disclosures to the agent offer no protection to the agent i.e. if the seller ticks 'yes' for insulation and it isn't in the roof = agents problem. I don't know why anybody would be an agent, but assuming they have a burning desire to have no life and be a litigation punching bag then I can see the day coming where they can make no comment about the property whatsoever. "What are the schools like here?" "please make your own enquiries prior to purchasing this product!" Buyers will probably have to sign liability waivers for the agents which will subsequently be proved worthless in court but you will need to sign them anyway!

 

[LearningMan]

Reading too much into it ? Isn't this the law governing agents according to the article ?

I'll let you all know how I go once it's over. Thanks again for all your replies & comments.

 

[Token Funder]

Reading too much into it ? Isn't this the law governing agents according to the article ?

I'll let you all know how I go once it's over. Thanks again for all your replies & comments.

Proving a loss will be the first matter to address. The fact that you were prepared to pay a premium isn't itself a loss given a lower amount may not have been accepted by the vendor. This isn't to say the ACCC wouldn't give the REA a smack - it's just that you're not necesarily up to be compensated.

If you got a val at the time AND the valuer incorporated the supposed builder's reputation into the $, recheck with the valuer and get an opinion as to the reduction a different builder would have made.

If the answer is zero, you will struggle as compensation aint possible if you have incurred no loss.

 

[Alabex]

hmm I think you may be reading too much into it but if you decide to go him then let us know how you go. Apparanlty even those seller disclosures to the agent offer no protection to the agent i.e. if the seller ticks 'yes' for insulation and it isn't in the roof = agents problem. I don't know why anybody would be an agent, but assuming they have a burning desire to have no life and be a litigation punching bag then I can see the day coming where they can make no comment about the property whatsoever. "What are the schools like here?" "please make your own enquiries prior to purchasing this product!" Buyers will probably have to sign liability waivers for the agents which will subsequently be proved worthless in court but you will need to sign them anyway!

You make some excellent points here! It is getting to a stage where as an agent you cannot say much. You just have to use phrases like... the owner has advised me that xyz, i have been led to believe that the property was built by xyz, but i dont have any solid evidence of that, the property looks solid but i strongly recommend you to get your own independent building reports etc etc.... depending on what the disclaimer says it might actually help the agent... there are cases where disclaimers have been held up and the agent has been removed from liability - BUT they have to be done in a certain way - clear, in same size/style font as the rest of the ad, be in a visable location (not over the page) and other similar rules....