Silence Is Not Golden In Real Estate Negotiations

Published 23 June 11 09:53 AM | Peter Mericka 

OPINION
by George Rousos
Director
Industry Training Consultants
george@itc.nsw.edu.au

François-Marie Arouet, better known by the pen name Voltaire, was a French writer and philosopher famous for his wit and for his advocacy of civil liberties, including freedom of religion and free trade. Voltaire was a prolific writer and produced works in almost every literary form including plays, poetry, novels, essays, historical and scientific works, more than 20,000 letters and more than 2,000 books and pamphlets. One of Voltaire’s famous sayings was, and I quote:

"We must distinguish between speaking to deceive and being silent to be reserved."

I echo and remark this famous quote of Voltaire’s, often forgotten during the heat of the negotiation battle and is what relates to misleading and deceptive conduct.The action for misleading or deceptive conduct is increasing in its application with the development that silence in most cases will amount to a breach of s 18 of the Competition and Consumer Act 2010.

The use of an agent is common practice in commercial transactions, however, under the provisions of both state and federal laws, it would appear that an agent found to have engaged in partial disclosure could be found to have engaged in misleading or deceptive conduct.

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Filed under: Conveyancing, Deception, real estate, melbourne, victoria, real estate agent, George Rousos, negotiations, misleading and deceptive

Comments

# Tim O'Dwyer said on June 24, 2011 11:07 AM:

For a couple more articles on this critical topic readers are referred to:

Two Tales of Estate Agents' Wilful Silence

Were Hoges & Linda Dudded By A Dodgy Agent?

How The Regulator Went Through Ray White Like A Dose Of Salts

# Property Search said on June 24, 2011 3:28 PM:

In real estate it's a business where negotiations are crucial especially on agreements on property lease.

# Mandurah Real Estate said on June 24, 2011 10:10 PM:

Transparency is essential in any real estate transaction. The estate agent should be able to conduct written negotiations, as doing so involves giving legal advice and the performance of legal work.

# George Rousos said on July 1, 2011 11:18 AM:

What readers need to be aware also of - are the misunderstandings in Australia surrounding gazumping.

The word gazump came into vogue with a buoyant real estate market, lending a new term to an ancient practice of doing someone down on a deal. In gazumping, the seller raises the price - usually of a house and in response to a better offer - just before the deal is clinched or they choose not to formalise a contract at the last minute inorder to accept a higher offer. Even though this practice is not illegal in Australia, many people still think it is unethical to do. However, if unethical practices had led to the seller changing their mind for a more appealing offer, it would be most likely that such behaviour would amount to misleading and deceptive conduct anyway.

If a seller changes their mind for another offer and the original buyer loses out, as long as the agent has worked honestly, fairly and professionally with all parties in a transaction - the perceived thoughts of gazumping would suddenly disappear and lose all meaning.

A mythical word such as gazump should be replaced by a new word - so to not confuse the general public and the real estate profession no more.