Real estate agent censured

A Dunedin real estate agent who switched companies while marketing a Taieri home worth more than $1 million has been censured following disputes over the $25,000 sale commission.

At the heart of the matter is whether the Taieri homeseller was exposed to the risk of paying two commissions on the property, following its sale in March last year.

Real estate agent Shane Robinson had been working for Edinburgh Realty in Dunedin. He switched to Harcourts in early March last year, taking with him the files of seven homes listed with Edinburgh. They included the Taieri property, which he subsequently sold about a fortnight later.

A complaint against Mr Robinson by Edinburgh managing director Mark Miller to the independent Complaints Assessment Committee last August was not upheld.

Mr Miller appealed that decision to the Real Estate Agents Authority (REAA).

The matter was heard by Judge Paul Barber of the Real Estate Agents Disciplinary Tribunal in Dunedin last November.

Mr Miller's appeal was successful, and Judge Barber found Mr Robinson guilty of ''unsatisfactory conduct'', fining him $1000 and ordering him to pay $1000 towards costs.

The penalty was publicly released last month by the REAA.

When contacted yesterday, Mr Robinson said he was ''confused and disappointed'' by the tribunal's finding, saying the vendor was ''never exposed'' to paying two commissions, and noted he had since sold another, separate, property for the vendor.

''From the outset it was made clear to them [vendors] there would only be one commission paid,'' Mr Robinson said.

The tribunal's 15-page decision said Mr Robinson ''took files from a previous employer and exposed the vendors to the risk of paying double commission''.

On the splitting of the $25,000 commission, the decision said Mr Robinson would normally have got 50%-70% (or between $12,500-$17,500) had he remained at Edinburgh.

The decision said Harcourts had suggested to Edinburgh in May last year that $12,500 go to Mr Robinson, and $2500 (10%) to Harcourts, and that same day paid 40%, or $10,000, to Edinburgh.

However, about three weeks later Harcourts became aware Edinburgh was threatening legal action over the full commission and Harcourts forwarded the $15,000 balance to Edinburgh.

In evidence, Harcourts witness manager Kelvin Collins said: ''This [$15,000 payment] was in accordance with our undertaking to the [Taieri] vendors that they would not be put in a double commission situation.''

In his decision, Judge Barber said he agreed with Edinburgh's legal counsel, Dunedin QC Colin Withnall, who said Mr Robinson's removal of files before he resigned implied his ''intent to poach'' clients, goodwill and knowledge base from Edinburgh.

Judge Barber said it was clear Mr Robinson had put the Taieri vendors in a ''position of liability for double commission'' but noted mitigating factors.

He had explained the risk to the sellers, and had given his word that ''one way or another'' they would not pay two lots of commission. The vendors had not complained and gave a letter supporting Mr Robinson to the tribunal.

''[However] they may not have understood their real liability at law,'' Judge Barber said.

He said Mr Robinson ''seemed to think that either his new employer or previous employer would capitulate and do a deal...indeed, that is what happened''.

Mr Withnall submitted, during evidence, it was ''part of a pattern'' by Mr Robinson to attempt to get ''a slice'' of commissions for himself and Harcourts, which Edinburgh was entitled to ''at all stages''.

In finding Mr Robinson guilty of ''unsatisfactory'' conduct, Judge Barber said ''indeed, depending on the facts of a particular case, the type of background outlined to us could sometimes well amount to misconduct''.

It was ''fundamental'' that when an agent went from one employer to another, the vendors were not put at risk of having to pay double commission, any type of litigation, ''or even the cost of obtaining legal advice'', Judge Barber said.

simon.hartley@odt.co.nz

 

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