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Case Study 4

Agency appointment in dispute

A Tasmanian couple is being sued for commission by a real estate agency which was not involved in the sale of their home. The agency is claiming it held a 120-day agency to sell the home; the owners say their signatures on a document were obtained by deception and that they have suffered "emotional and mental torment".

"Selling our home was supposed to be a pleasurable experience and it has turned into a complete and absolute nightmare," they say.

Jeanette and Edward said they first had contact with a salesperson, 'S’, when they received a phone call from him during a campaign to seek new listings. They agreed to an appraisal of their property but decided they did not wish to sell.

In March they received another call from S, now working for a different agency. They again agreed to an appraisal but declined to list their property for sale with the agency.

Around Easter they received another phone call from S, who said he had prospective buyers wanting to look at their home. They agreed to allow the buyers to view their home.

Jeanette said: "S told me that we had to sign a piece of paper that was required legally to allow the people to come and look at our house. This was arranged for Monday night, 25 March, the day before the viewing. S arrived Monday night with this piece of paper for us to sign. I signed it and as my husband was signing it, he said: "What’s this for?" and I said: "It’s so the people can have a look tomorrow" and S agreed that that was what we were signing. Straight after it was signed S left and did not leave us with a copy of what we had signed."

Soon after the inspection took place without the agent in attendance, the prospective buyers decided they were not interested in the house. Jeanette and Edward told S they had decided not to sell their house yet anyway.

They then received another call from S who said he wanted to take photos of their house. They repeated that they did not want to sell their home. Later, while surfing real estate sites on the Internet, they discovered their home had been posted on the agency website.

Jeanette says: "I was furious and sent the agency an e-mail telling them that as far as we were concerned, they did not have authority to sell our house, let alone put it on the Internet. We also told them we did not want to deal with S and if they required to speak to us any further about this matter that their boss was the only person we would talk to."

The next day they received another call from S, who advised that their house had been taken off the market and removed from the Internet web site. She says: "We then presumed that it was all a stupid misunderstanding and left it at that."

Later Jeanette and Edward decided to list their home with another agency. However, a week later they discovered that the form they had signed earlier with S was a 120-day listing.

S’s agency insisted that the listing would stand and that he would be entitled to a commission if the house was sold through the second agency. His letter said: "Our company’s policy is that we never void an authority to sell ... It will legally remain in force for 120 days ... It is important you realise the implications of selling the property with another real estate company."

After the house sold the first agency wrote to the selling agency claiming a $4,310 commission for the sale of the house.

Jeanette said: "The only thing that we can see that we have done wrong in this whole mess is to sign that stupid piece of paper without reading it and not trusting my gut instinct telling me not to deal with S."

The HHPF wrote to the first agency that Jeanette and Edward were "extremely distressed" at the conduct of his agency and the agency appeared guilty of unethical conduct and breaches of the Trade Practices Act.

The letter advised that Jeanette and Edward had been granted approval to use the fund to defend any litigation brought against them by the agency. "Such proceedings will be vigorously defended and appropriate counter-claims for damages initiated," the letter said. Particulars would be submitted to the Director of Fair Trading and Consumer Affairs in Tasmania, and reported also to the ACCC.

The letter sought confirmation from the agency of the termination of its "purported agency", confirmation that no further claim would be made against the owners and a letter to them regretting any inconvenience or stress caused to them.

There has been no response from the agency, which appears to have dropped the matter.

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