Articles in Category: Residential sales

Privacy laws and real estate - is your agency complying?

 Privacy and agency policies - the following information is an extract from Chapter 32.7 of the PME Manual

The Privacy Act is federal legislation which affects most businesses in Australia. Agencies must have a privacy policy statement explaining to all customers and clients;

  • Why we are collecting information

  • How we are going to store it

  • What we are going to do with it – intended purposes

  • How to update information that the agency holds on file

  • How to make a complaint about privacy

Privacy statements should be included in all application forms and management agreements plus be readily available for anyone who wishes to view the agency policy. The laws require agencies to be open and transparent in relation to how people’s privacy is protected and handled. It is recommended that agency privacy policies are on their websites and people are advised that policies as updated are updated online.

 

The following information has been sourced from www.hopgoodganim.com.au May 6th 2015.

 

 

As Australia observes Privacy Awareness Week, on Monday the Office of the Australian Information Commissioner (OAIC) published its findings in relation to its assessment of compliance with the requirements of Australian Privacy Principle 1 (APP 1) by 20 organisations with online privacy policies.  Organisations assessed include well known entities such as LinkedIn, Westpac Banking Corporation, and News Corp Australia.

APP 1 requires that organisations have a privacy policy that is clearly expressed and up to date.  While all organisations surveyed had easy-to-locate privacy policies, 55% of the policies did not comply with at least one of the requirements of APP 1.  In many cases, privacy policies:

    • did not outline how an individual could request access or correction of their personal information;
    • did not outline how the organisation would handle privacy related complaints; and
  • did not comply with the requirement to describe how the organisation protects the personal information that it holds with adequate detail.

The report acts as a timely reminder to organisations subject to the Privacy Act to review their privacy policies and business practices for compliance with the Privacy Act and the Australian Privacy Principles.

If you are concerned that your business may not be compliant with the Privacy Act, HopgoodGanim’s Intellectual Property and ICT team has the required expertise to assist.

Real Estate Excellence members

Real Estate Excellence members are reminded that there are over 40 documents at Member online  in the Privacy Act information and best practice folder. These documents include training for staff presentation, fact sheets and guides for creating a privacy policy.

 

  • Access and correction of information fact sheet

  • Access to personal information APP 12

  • April 2014 version 1 Member update

  • Authority for either party to sign and authorise – landlord letter

  • Authority for either party to sign and authorise – seller letter

  • Change of banking details – lessor instruction to agent

  • Change of banking details – seller instruction to agent

  • Checklist – are we compliant with the privacy act

  • Collection personal information and making people aware why fact sheet

  • Correcting personal information APP 13

  • Data quality and the privacy act

  • Direct marketing and the Privacy act

  • Direct marketing APP 7

  • Duty to keep personal information up to date

  • Guide to securing personal information

  • New tenant privacy consent

  • Openness requirements under the privacy act

  • Password form to access information – seller

  • Password form to access information lessor and tenant

  • Personal information that is publicly available fact sheet

  • Privacy Act – Australian principles

  • Privacy act training video

  • Privacy principles as at March 2014

  • Privacy questions – recommended article to review

  • Privacy Policy statement requirement APP 1

  • Protecting other peoples information

  • Release of information to law enforcement

  • Scanning of documents and the privacy act

  • Security of personal information APP 11

  • Spam Act understanding consent – email and sms marketing

  • Tips to protect your customers personal information

  • Training presentation power point for staff

  • Updated personal information form – for client and customer

  • Use or disclosure of personal information APP 6

 

Real Estate Excellence privacy policy

 

Salespeople - Pressure by the top end of town to break the law

 

A very alarming situation is emerging as per information provided by a reputable long term professional sales agent who wishes to remain anonymous. The agent has provided Real Estate Excellence with information that is of legal privilege and confidential which is simply alarming to say the least (and pardon the pun).

 

Salespeople do not be pressured into providing disclosure on matters that are not your legal duty to disclose. Legislation clearly states that it is the vendor/seller duty and they must disclose and or pay a professional to ensure compliance matters are sufficient such as safety switches, pool compliance and smoke alarms.

 

Simply say no and put the pressure back on the people that deserve the burden; the vendor and or their so  called legal representatives.

 

 

It is hoped that this is not a common situation and like any industry, there are a few questionable and unprofessional people.

 

 

 

"I was told I was the only agent in Queensland that had requested a professional Smoke Alarm and Safety switch contractor be engaged. I was told after several refusals to complete the checks that by the Big Banks property recovery agent that I was making things difficult for them to refer future business to me. I told them I would not put my agency at risk or the lives of the buyers at risk with inadequate checks for compliance. "

 

 

 

Estate agents need to ensure their advertising practices comply with consumer protection laws.

Real Estate Excellence note - as of December 1 2014 price guides are not allowed in Queensland for Auction and list without price property.

 

Estate agents need to ensure their advertising practices comply with consumer protection laws.
By Toan Le

The advertising of properties is an important aspect of a real estate business. In a competitive property management market, the financial success of many real estate agencies is built on the ability of their advertisements to capture buyers’ attention and interest in inspecting the property. A once-common technique used in the real estate industry to attract buyers’ interest in a property was to under-quote the likely selling price.

The legality of this practice was recently considered by the Federal Court in ACCC v Gary Peer & Associates Pty Ltd.[1] The decision by Sundberg J to declare that Gary Peer & Associates Pty Ltd (the respondent) had engaged in misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) (the Act), by falsely advertising the likely selling price of a property, put all estate agents on notice that their advertising practices needed to comply with laws that are aimed at protecting the interests of consumers.

The facts

Central to the case were two series of advertisements lodged in August and September 2003 by the respondent for the sale of a property in inner Melbourne. The August and September advertisements included the statements “PRICE GUIDE $600,000 Plus Buyers Should Inspect” and “PRICE GUIDE $650,000 Plus Buyers Should Inspect” respectively.

Both series of advertisements were published even though the vendors had given clear instructions to the respondent that they were seeking a sale price of between $780,000 and $800,000, and the respondent had appraised the property at $700,000.[2] In addition, changes to the advertised price of “$600,000 Plus” were made only after the vendors had rejected a genuine written offer of $750,000 on 27 August 2003 and had expressed their concern that the advertised price was too low and might not attract the right buyers. The property was passed in at auction for $781,000.

The applicant’s case

The Australian Competition and Consumer Commission (ACCC) alleged that the August and September advertisements had contained representations that the vendors were willing to sell the property for a price that was approximately or not substantially more than $600,000 or $650,000 and that the agent had reasonable grounds for making such representations.

The ACCC claimed that as this was never the case,[3] those advertisements were misleading and deceptive and, in making the representations, the respondent had contravened:

  • s52 of the Act which is directed at prohibiting corporations from engaging in misleading and deceptive conduct;
  • s53(e) of the Act which is directed at prohibiting false or misleading representations with respect to the price of services; and
  • s53A(1)(b) of the Act which is directed at prohibiting false or misleading representation concerning the price payable for the land.

The ACCC sought a declaration that the respondent had contravened those provisions and an injunction to regulate the respondent’s advertising practices for the next four years. In addition, an order was sought requiring the respondent to implement a compliance program.[4] 

The respondent’s submissions

The respondent did not dispute that it was acting “in trade or commerce” when it advertised the property.[5] The legal issues turned on whether the advertisements conveyed a representation as to the likely selling price and whether such representations were misleading and deceptive. In determining the first issue, it was essential to assess the words used in the advertisements in their whole context.[6] 

The respondent’s main submission was that the advertisements referred to the class of potential buyers invited to inspect the property and not to the vendors’ likely selling price or the estate agent’s opinion of the selling price.

To support this argument, the respondent contrasted the August and September advertisements, which had the words “Buyers Should Inspect”, with two other advertisements. One contained a bar chart divided into parts showing price ranges from $290,000 through $310,000 and $330,000 to $350,000, with the $310,000 to $330,000 range emphasised in black. The other advertisement was for five apartments in a single complex with a price guide stating “[f]rom $725,000”. By revealing the lowest price and the most likely price range that the vendors were willing to accept, the respondent argued the latter two advertisements were directed to the price of the property.[7] 

The respondent also used the auction/private sale distinction to submit that it would be unnatural to read into an auction advertisement a statement as to the likely selling price. In essence, the respondent argued that the selling price in an auction mode of sale is determined by the bidders and not by the vendor. As a result, it would be a departure from obligations for an agent to disclose the vendor’s likely selling price.[8] 

Finally, the respondent submitted that the information contained in the advertisements was merely an introductory feature and so should not be elevated to the status of a representation. This argument was supported by referring to Young J’s statement in Eighth SRJ Pty Ltd v Merity[9] that “it seems to me very difficult to allege that a newspaper advertisement which is designed primarily to tell people that a house is open for inspection should be construed as giving information other than preliminary information upon which a person should rely in order to enter into a contract”.[10] 

The decision

Sundberg J held that the advertisements had contained representations that were misleading and deceptive, contravening various provisions of the Act.

Section 52

By adopting the visually dominant phrase “PRICE GUIDE $600,000 Plus Buyers Should Inspect” or “PRICE GUIDE $650,000 Plus Buyers Should Inspect”, the advertisements had carried the representations that the vendors were prepared to sell the property for a price that was approximately or not substantially more than the stated price range and that the respondent had reasonable grounds for believing that was the case.

According to Sundberg J, the inclusion of the words “Buyers Should Inspect” did not deflect attention from the natural meaning of the phrase “PRICE GUIDE” – that is, it was a guide as to the selling price of the property.[11] The auction/private sale distinction was found to be not as clear-cut as the respondent had asserted, as a vendor may effectively disclose a likely selling price should the vendor wish to negotiate an early sale.[12] 

Furthermore, his Honour was not persuaded that the advertisement statements were merely “introductory”. In this respect, the statements made in the Pappas[13] and Eighth SRJ decisions were distinguished, as it was clear that words such as “Max living style with min maintenance” had little substance in them other than introductory puffery.[14] 

Conversely, the facts indicate that the vendors were aware that the price guide was directed at a likely selling price and the potential purchaser who had made a written offer of $750,000 on 27 August 2003 was certainly influenced by it.[15] 

The representations made by the respondent were representations as to future matters. As a result, s51Aof the Act deemed those representations to be misleading and deceptive for the purposes of proving s52, unless the respondent could show it had reasonable grounds for making them. The respondent had failed to discharge this onus as it always knew that the vendors were not prepared to sell for less than $780,000 and it had appraised the value of the property at $700,000.

Furthermore, the respondent was aware that the property could have been sold for $750,000 before the September advertisements were lodged. It was not contested that $780,000, $750,000 or $700,000 was each substantially more than the advertised prices of $600,000 and $650,000.[16] 

Section 53A

In addition, the respondent had contravened s53A of the Act as the advertisements carried false or misleading representation about matters “in connexion with the sale or grant, or the possible sale or grant, of an interest in land”.[17] According to Sundberg J, the use of those words clearly indicated Parliament intended the prohibition directed in s53A to include pre-sale activities.

Section 53(e)

On the other hand, the respondent was found not to have contravened s53(e) of the Act, as Sundberg J agreed with the respondent that only the vendors could provide the service identified by the ACCC – that is, rights and interests in the property.[18] 

The penalty

Noting the respondent’s conduct could affect many members of the public, Sundberg J made a declaration that the respondent had engaged in misleading conduct in making the various representations.[19] The respondent was ordered to pay the ACCC’s costs.

Interestingly, an injunction and a compliance program order were not granted, as there was no evidence to suggest that the respondent was aware its advertisements were contravening the Act, no complaints were lodged, no person suffered a loss as a result and the auction was an isolated transaction.

But Sundberg J’s reasons for declining the additional orders suggest that estate agents engaging in the same conduct in the future can expect to face harsher penalties.

Amended Estate Agents Act 1980 (Vic)

The Trade Practices Act is no longer the only Act that can be used to prosecute the practice of deceptive under-quoting. Section 47A of the Estate Agents Act 1980 (Vic)[20] now requires an estate agent to ensure that the engagement states the agent’s estimated selling price or price range. This must be done before obtaining a vendor’s signature on an engagement to sell the property.

Section 47C of the same Act then prohibits the agent from marketing the property at an estimated selling price that is less than the estimated selling price or price range as stated in the engagement. The monetary penalty for contravening s47C is substantial.[21] 

As the new provisions came into effect in June 2003, after the occurrence of the conduct in this proceeding, s47C’s application was not considered. Interestingly, Sundberg J believed there to be a “serious question” as to whether the conduct in question would contravene s47C.[22] 

Perhaps s47C should be redrafted to clarify whether it is the agent’s or the vendor’s estimated selling price or price range that is stated in the engagement. It is not uncommon for the agent and the vendor to disagree on the value of the property. If such a situation arises, should the agent refuse to advertise the property at a price that is substantially more than the agent’s estimated price on the grounds that the agent may breach s47C?

On the other hand, taking this course would appear to result in the agent breaching reg 12 of the Estate Agents (Professional Conduct) Regulations 1997 (EAPCR), which prohibits an agent from offering to sell any real estate or business for a principal at a lower price than authorised.

The better view appears to be that the “price or price range as stated in the engagement” refers to the price that the vendor and agent have agreed on after considering all points of view. If the prospective agent and vendor cannot agree, the agent should decline to act for the vendor.

Implications for normal advertising activities

Without a doubt, the decision has delivered protection and certainty to prospective home buyers. The decision makes it clear that an agent’s advertised price must reflect the agent’s estimated selling price or the price at which the vendor is actually prepared to sell. In other words, there must be a factual basis for the advertised price.

The use of price range and phrasing like “Price Guide $600,000 Plus Buyers Should Inspect” would not protect the agent from contravening the consumer protection legislation and reg 12(3)(a) of the EAPCR 1997, when the agent knew the vendor would not sell below $780,000. An agent can construct a factual basis for its marketing strategies by taking certain precautions which the respondent in this case failed to take.[23] 

Foremost, the agent should obtain written instructions from the vendor about the price at which the vendor is willing to sell. This price or the estimated selling price range should be stated in the signed engagement to provide the agent with a factual basis to defend its pricing practices should an allegation of deceptive under-quoting arise.

In addition, the vendor should be encouraged to provide input into the marketing strategies of the property and written confirmation that the vendor will seriously consider all prices within the advertised price range should be obtained before advertisements are placed.

Finally, vigilant efforts are required to ensure that changes to the vendors’ reserve price are reflected in the representations made in advertisements. In particular, the advertised price range must not include a price that the vendors had previously rejected unless the vendors had indicated they are willing to reconsider that price.[24] 

The facts in this case demonstrate that adopting these sensible practices may not only protect an agent from legal liability but may advance the vendor’s interest by attracting the right class of prospective purchasers.

An important issue that may require further judicial consideration, however, is the degree of certainty or seriousness of an “offer”[25] before an agent/vendor is obliged to alter an advertised price/price range. Bearing in mind that the offeree may withdraw or refuse to sign a contract when it is presented, and that land contracts require greater formalities,[26] this issue has important practical implications for the marketing of real estate. No doubt, the courts will shed more light on this point in future cases.


TOAN LE is an associate lecturer at the Department of Business Law and Taxation, Monash University and a member of the Corporate Law and Accountability Research Group (CLARG).


[1] [2005] FCA 404.

[2] Note 1 above, at paras 18 and 61.

[3] Note 1 above, at paras 6 and 61.

[4] Note 1 above, at para 8.

[5] Note 1 above, at para 95.

[6] Note 1 above, at para 54.

[7] Note 1 above, at para 66.

[8] Note 1 above, at para 71.

[9] (1997) NSW ConvR 55-813.

[10] Note 9 above, at para 56,392.

[11] Note 1 above, at para 75.

[12] Note 1 above, at para 76.

[13] Pappas v Soulac Pty Ltd (1983) 50 ALR 231 at 234.

[14] Note 1 above, at para 77.

[15] Note 1 above, at para 81.

[16] Note 1 above, at para 80.

[17] Note 1 above, at para 101.

[18] Note 1 above, at paras 90-97.

[19] Note 1 above, at para 106.

[20] Sections 47A and 47C were inserted into Part IV of the Estate Agents Act 1980 (Vic) by the Estate Agents and Sale of Land Act (Amendment) Act 2003 (Vic).

[21] A breach of s47C attracts 200 penalty units. For the 2006-07 financial year, the monetary value of a penalty unit is $107.43. See s5 of the Monetary Units Act 2004 (Vic) and Victoria Government Gazette G14, p680.

[22] Note 1 above, at para 110.

[23] The Real Estate Institute of Australia has issued Guidelines on the Trade Practices Act (2004), which prudent estate agents may wish to read. See http://www.reiaustralia.com.au/documents/REIA_Guidelines_on_the_TPA_as_at_13_August_2004.doc

[24] Note 23 above, at para 13.5.

[25] An “offer” may be made in a letter, over the phone or by word of mouth in the course of negotiations or mere conversations.

[26] See Walton Stores v Maher (1988) 164 CLR 387.

Sourced from http://www.liv.asn.au/ January 2015

If it isn't in writing, it does not exist

Vivlios v Lucy Cole Prestige Properties Broadbeach Pty Ltd [2014] QCATA 108 (13 May 2014)

Last Updated: 3 June 2014

CITATION:

Vivlios v Lucy Cole Prestige Properties Broadbeach Pty Ltd [2014] QCATA 108

PARTIES:

Ligeri Vivlios
(Applicant/Appellant)

 

v

 

Lucy Cole Prestige Properties Broadbeach Pty Ltd atf Gaindrift Trust
(Respondent)

APPLICATION NUMBER:

APL048 -14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe, OAM

DELIVERED ON:

13 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where appointment of agent for sale – where form 22a signed – where seller alleged oral variation to contract – where tribunal found form 22a was the basis of the agreement – where seller submitted tribunal did not consider amended response – where seller submitted tribunal did not consider affidavit material filed - whether grounds for leave to appeal

Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

[1] Ms Vivlios engaged Lucy Cole Prestige Properties Broadbeach Pty Ltd to sell her house. She signed a Form 22a, which included an authority to incur advertising costs. Lucy Cole sent an invoice for the advertising costs but Ms Vivlios did not pay. Lucy Cole filed an application in the tribunal. The tribunal ordered Ms Vivlios pay Lucy Cole $22,129.75.
[2] Ms Vivlios wants to appeal that decision. She says the learned Member did not consider or determine matters of mixed fact and law raised in her amended response. She says the learned Member did not refer to, or consider, the contents of an affidavit from Jim Vivlios sworn 3 September 2013, as she ought to have done.
[3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:

There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.

[4] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[2] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[3]
[5] Ms Vivlios’ amended response, her affidavit and Mr Vivlios’ affidavit assert that Lucy Cole’s appointment was partly written and partly oral. To the extent that the agreement was oral, Ms Vivlios says that the parties agreed that advertising costs would be paid from the proceeds of sale and that, if there was no sale, no costs were payable.
[6] The transcript shows that the learned Member did read the Vivlios’ affidavits[4]. She refers directly to Mr Vivlios’ affidavit[5]. The transcript also shows that the learned Member clearly understood the nature of Ms Vivlios’ argument. She acknowledged that Ms Vivlios claimed there was an oral agreement[6]. The learned Member heard submissions from Ms Vivlios in support of her position[7]. The learned Member asked Ms Vivlios why she signed the Form 22a in terms that were different from the alleged oral agreement[8].
[7] It is not correct to say that the learned Member did not consider or determine the issues raised in the amended response. It is also not correct to say that the learned Member did not consider the evidence contained in the Vivlios’ affidavits. The learned Member did consider that material and she was not persuaded that there was an oral contract that was different from the written contract. The evidence can support the learned Member’s findings and here is nothing in the transcript to persuade me that the learned Member should have taken a different view of the facts.
[8] There is no reasonably arguable case that the learned Member was in error. Leave to appeal should be refused.

Source http://www.austlii.edu.au/

Buyer loses claim against real estate agent over alleged misrepresentation

QCAT (QLD)

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – agents – representation – where a real estate agent made a representation that transfer duty was not payable by the buyers – where it is alleged the agent made a representation to the buyers that they would forfeit the deposit if they terminated the contract – where the buyers had opportunities to avoid or mitigate financial loss – where the buyers proceeded with the contract – whether any financial loss suffered as a result of the representations – where it was held that the buyers have not established that they have suffered loss as a result of the representations of the agent

Review the QCAT case here