Putting the house in order

Photo by Stephen Jaquiery.
Photo by Stephen Jaquiery.
Legislative changes combined with insurance implications following the Canterbury earthquakes have altered the landscape of the real estate game in Dunedin - and for the better. Shane Gilchrist goes house hunting.

A couple walks into a house: ''Oooh ... nice ... I like it ... a lot.''

''Shhh ... not too loud ... Don't let them think we're too keen ...''

A couple walks out: ''What did they say they wanted for it?''

Such conversations might be typical, well-worn even, among those who have opened the doors on the world of real estate.

Yet, it seems the landscape has changed a fair bit in recent years.

A succession of visits to open homes, various inquiries and no small number of interactions with agents and companies during the past several months might not have resulted in the actual purchase of a property, yet it has become apparent that many of those involved in this industry are operating in a new paradigm.

Sally Peart
Sally Peart
Some of these changes are borne out of legislation.

In particular, the Real Estate Agents Act 2008 introduced tougher penalties for errant real estate agents and companies (more on that later).

One of the biggest twists has been the flow-on effect of the Christchurch earthquakes of late 2010 and early 2011.

The 6.3 magnitude earthquake of February 22, 2011, might have been dwarfed by Japan's earthquake and tsunami the same year, but the New Zealand event generated a disproportionate ratio of claims because of New Zealand's high levels of earthquake insurance, especially for residential properties, according to global insurer Swiss Re, which estimated insurance claims as a result of the Christchurch quake to be $US12 billion.

Insurance companies responded by increasing home insurance levies and tightening their requirements in regards the state of properties.

In regards the latter, that has even led to instances of mortgages falling over (banks are loathe to finance mortgages on uninsured homes).

Take, for instance, the quality of electrical wiring.

Insurance companies have developed stricter requirements before they will provide cover for older houses.

Martin Montgomery
Martin Montgomery
Though companies' definitions of an older house vary, it generally means dwellings built prior to 1945 or 1935.

Given this conservative climate, many real estate companies and, indeed, house vendors (the people who ultimately pay estate agents an agreed commission), have thus become pro-active, supplying a raft of documentation for potential buyers, from land information memorandums (Lims) and electrical certificates to building and engineering reports.

In short, the more details supplied by a seller (or their agent) equals fewer questions for a potential buyer.

A recent example: Two weatherboard villas dating back almost a century; in the same Dunedin hill suburb (in fact, only separated by a fence) and therefore close to the same amenities, including schools, public transport and cafes; both faced north, received lots of sun and had similarly sized sections; one had a new kitchen and better ''flow'', the other more room for guests; significantly, both were about the same price (and had similar registered valuations).

One had reams of information about it, including an engineer's report (significant remedial work had been carried out), an electrical certificate and a Lim.

The other? Very little, apart from some photos of renovations done years earlier.

''At the very minimum, we'd advise owners to get a Lim report,'' Martin Montgomery, a consultant with Dunedin real estate company Metro Realty, says.

Though there is an expense involved (the Dunedin City Council's fee for a non-urgent, five-day residential Lim, is $260), procuring one allows an owner to check a house is code compliant and therefore potentially rectify any issues that might become apparent; or, if not, at least disclose any issues to would-be buyers.

Mar Miller
Mar Miller
''Sure, the down side is a buyer could be put off by any problems but the positives generally outweigh the negatives,'' Mr Montgomery says.

''Now, not every house owner gets a Lim up front, but doing so implies honesty and integrity on the behalf of both the owner and the agent.

''As well as Lims, the other normal thing to have done up front is an electrical inspection. Since the Christchurch earthquake, the landscape has changed forever. Insurance cover is definitely more challenging to obtain but the overwhelming majority of policies get approved.

''There are so many more road humps you have to cross before you get to the finishing line.

''The majority of buyers do not make an offer on a property without completing some sort of due diligence and checks. You don't just rush in and write something on a slip of paper on the bonnet of your car,'' Mr Montgomery says.

''Still, the market is quite buoyant at the moment. Sales have almost doubled in the past six weeks. The last five properties I've sold over the past month were all cash, unconditional contracts, which were assisted in part by pre-purchase information supplied to prospective buyers.''

Liz Nidd, Real Estate Institute of New Zealand Otago-Southland regional director, says these days house purchase contracts, ''with all the small print and additional clauses'', often resemble a Russian novel.

''Almost every contract we see now has a building clause and an electrical inspection clause. If vendors want to sell a house, they need to have it in a reasonably good state of repair, otherwise purchasers won't confirm.

''Vendors can be very quick to criticise their agent if they think they haven't done a good job, but the quality of the house will be reflected in how long it takes to sell and the price achieved,'' Mrs Nidd says.

''Our job is to get the best price for a vendor. Now, you can't get the best price if you don't have the best product. Thus we have always put some responsibility on the owners.''

Regardless of what information is supplied, purchasers should still conduct their own due diligence, Sally Peart, a partner at Dunedin law firm Marks and Worth, emphasises.

''It still amazes me that some people pay less attention to this than they would in relation to the purchase of a car - despite the fact that purchasing a property is usually the most significant investment a person will make.

''Attitudes are slowly changing to the obtaining of Lim reports, but there are still many purchasers who choose not to obtain a Lim report despite the modest cost involved.

''Even where Lim reports are provided by the vendor as is quite common, unless the purchaser has obtained the Lim report themselves and relied on it, they would not have a claim against the council for any failure to disclose a relevant matter which subsequently causes loss to the purchaser,'' Ms Peart explains.

''Building reports are also important and can assist in ensuring that the Lim report covers all necessary consents.''

For example, if a wall has been removed or if a fire has been replaced, a builder will generally be able to ascertain whether or not such work has been done following the most recent plans on the Lim. Therefore appropriate consents should appear in the Lim. If not, alarm bells should ring, Ms Peart says.

''A proper building report will also check weather-tightness and items of repair which might not be obvious to the uninitiated.''

The introduction of the Real Estate Agents Act 2008 (which actually came into effect in November 2009) has driven real change for the better, those in the industry claim.

Gone is the self-regulated complaints and disciplinary system that operated under the 1976 Act; in its place a more transparent and effective system.

''We used to be a self-regulated industry whereby the Real Estate Institute of New Zealand was responsible for everything. People applied for a licence through the institute, then if they stepped out of line were disciplined by the institute.

''The industry had been seeking change because we were so limited in how we could apply penalties. The maximum penalty was a $750 fine, which really was a slap on the hand with a wet bus ticket. There are situations where people need more than that.

''We are now quite heavily legislated and I think that is for the better,'' Mrs Nidd says.

The 2008 Act featured the establishment of the Real Estate Agents Authority, under which a Complaints Assessment Committee has a range of powers, including fining real estate licensees up to $10,000 (individual) or $20,000 (company).

After investigating a complaint or allegation, a Complaints Assessment Committee may also forward a complaint to the Real Estate Agents Disciplinary Tribunal (also established under the 2008 Act), which has the power to fine individual real estate agents up to $15,000 and companies up to $30,000, as well as order the licensee (be they an individual or company) to pay compensation for actual loss of up to $100,000 to the complainant.

Also, the Real Estate Agents Act 2008 does not rule out other existing consumer protections, such as those provided by the Fair Trading Act and the Consumer Guarantees Act.

In fact, recent changes in the Fair Trading Act have created additional obligations for agents to the effect that all representations they make must be substantiated.

In short, if an agent makes a claim about a property, they must have appropriate evidence to justify it. And the penalties under the Fair Trading Act can be significant: companies found guilty of breaching provisions of the Act may be fined up to $600,000 and individuals up to $200,000.

Edinburgh Realty general manager Mark Miller points out that the 2008 Act has also resulted in better training for staff.

''There is compulsory compliance, a responsibility for training that is shared between the industry and our company.

''People are more aware of the issues that might affect the sale, or purchase, of a property. We like to deal with any of the compliance-type issues at the front-end of the process. By that, I mean when we are talking to the vendors.

''If we have any concerns we will advise them to get an independent assessment done.

''You do hear some stories about people being back-to-front in terms of the process,'' Mr Miller says.

''For example, people might have signed a sale and purchase agreement in which there is a due diligence clause that covers, say, an electrical inspection. That frustrates me, because the whole purpose of the 2008 Act was to deal with those issues earlier rather than later.

''I'm very pleased with how robust the process has become.''

Working at the coalface of real estate in Dunedin, Mr Montgomery says tougher legislation has actually made the job easier for many agents.

''The industry is just so much more ethical and professional. That's what the Government was trying to achieve and it has worked.

''It has thinned out the cowboys, basically. There have been several companies come and go over the past four or five years.

''One of the biggest things that has changed is that now when you list a property, you have to provide a formal written appraisal, which has to be backed up by facts. You can't just tell someone, `oh you're house is worth such and such' and away you go,'' Mr Montgomery says.

''Also, when someone makes an offer, it is our company's policy that they sign a purchaser acknowledgement form that states they've been advised to seek legal advice and have been appraised of various points about a house, or we might have suggested they get various independent reports done.

''That protects us, too. Record-keeping has become crucial.''

While acknowledging there are inherent stresses involved in both the sale and purchase of a house, Mr Montgomery believes the process should be a positive experience for those involved.

''And all of these changes, particularly how they have resulted in greater transparency, are for the benefit of both the buyer and seller.

''The legislation has definitely made things easier now.

''Sure, the introduction of this new legislation has created a lot of additional work for agents but, at the end of the day, all parties involved in the sale and purchase process and its new-found transparency are definitely better off.''

 

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