OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

I have been very critical of the underhanded approach taken by the Real Estate Institute of Victoria (REIV) in designing the new standard form Contract of Sale of Real Estate so as to create an even more deceptive document than the old Contract Note. To put my money where my mouth is I have designed a superior form of the standard Contract of Sale of Real Estate, and I am making it available free of charge to all estate agents and industry professionals.

In my 22 September, 2008 posting "Contract Note Banned! Estate Agents Lose Deception Tool" I was optimistic that the banning of the Contract Note and the introduction of a single, full Contract of Sale of Real Estate containing all of the terms and conditions of the sale would end the deceptions perpetrated by estate agents when handling real estate contracts.

In my most recent posting "New Contract - Same Old Deception" I fired a broadside at the Real Estate Institute of Victoria (REIV) after I had received a "short form" Contract of Sale of Real Estate which the estate agent had sent to me and to my client with the message, "Please find attached contract of sale ready for the purchasers to sign...", and with no General Conditions or Cooling Off information. The estate agent was able to do this because of the devious way the REIV has designed its version of the new Contract of Sale of Real Estate.

To demonstrate that is is possible to incorporate the new prescribed Contract of Sale of Real Estate into a document that is both estate agent friendly and consumer friendly, I have prepared an alternative.

Just click on the following link to download the new Contract of Sale of Real Estate. It is available free of charge to all estate agents and industry professionals:

I have already received positive feedback from an estate agent, who left the following comment:

"I have just downloaded your contract and had a close look at it. There is no doubt, in my opinion, that it is better than the REIV one. The idea of making it openly available is also a great idea..."

I would appreciate any further feedback on this new version of the Contract of Sale of Real Estate.

OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

The new Contract of Sale of Real Estate prescribed by the Estate Agents (Contracts) Regulations 2008 was supposed to end the dodgy practice of estate agents withholding terms and conditions from purchasers, but it hasn't. The document designed by the Real Estate Institute of Victoria (REIV) allows estate agents to trick purchasers into believing that they have received "the contract" when in fact they have not. The new standard Contract of Sale of Real Estate is not yet a week old, and already the good intentions of the new contract have been undermined by a dodgy estate agent.

The Contract Note Is Dead - Long Live the Contract Note

The Contract Note was supposed to have been banned, replaced by a new full contract which clearly states all of the general conditions of the sale. However, the Real Estate Institute of Victoria (REIV), through some clever redesigning and the use of large fonts, has effectively replaced it with something even more sinister.

The new Contract of Sale of Real Estate, prescribed by the Estate Agents (Contracts) Regulations 2008 for use by estate agents, has two parts. Form 1 contains the "Particulars of Sale", and includes all of the variable information which is added by hand to the contract, such as names and addresses, property details and so-on. Form 2 contains the prescribed "General Conditions" of the contract. Together, the two forms constitute the new full Contract of Sale of Real Estate.

Everything would fine had it not been for the design adopted by the REIV, which allows an estate agent to present just the Form 1 to the purchaser as "the contract". By printing the words "Contract of Sale of Real Estate" across the top of Form 1, and placing the REIV logo adjacent to it, the REIV has created something of a Contract Note look-alike document which can be used in the absence of the essential Form 2.

To see the REIV version of the Form 1 CLICK HERE.
To see the REIV version of the Form 2 CLICK HERE.

But to make matters worse, much worse, the mandatory "Cooling Off" warning" is eliminated from the Form 1 entirely. Thus, it is possible for the an estate agent to have a purchaser "signed up", without the purchaser ever seeing either the "Cooling Off" warning or the General Conditions which determine the conduct of the transaction.

The dodgy estate agents who in the past have relied so heavily on the Contract Note to perpretrate their deceptions, must feel that they have struck the mother lode!

More about "New Contract - Same Old Deception"...

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by Shannyn Hunter
Conveyancer shannyn@lawyersconveyancing.com.au
Lawyers Conveyancing 

Anyone who has dealt with the banks for a home loan will tell you about their battle scars with pride. Simply securing finance approval can be a frustrating and baffling task. An anxious purchaser can be kept waiting for finance approval because the valuation has been delayed, the vendor has gone overseas, the valuation has been done but your documents are being processed, your broker is on leave, your call is important to us...

It is best to ensure that the finance condition in the contract allows ample time to secure finance approval, because the unexpected happens.

With the right information, the naive purchaser can arm themselves against the common mistakes people make when buying a home and securing finance.

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OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

The document known in the real estate industry as “the standard REIV Contract Note” has been banned.  As from 28 September, 2008 the only document available to estate agents will be the standard form of contract prescribed by the Estate Agents (Contracts) Regulations 2008 or a contract prepared by a Legal Practitioner or a Licensed Conveyancer.

Contract Note – A Deceptive Title

The single page Contract Note was favoured by real estate agents in Victoria, firstly because of its name.  Everyone knows what a contract is, but what is a Contract Note?  Whenever a purchaser asked an estate agent if the Contract Note they were asked to sign was an actual contract, the answer was always a firm “No”, followed by the words, “it’s only an offer, and there is no contract unless the vendor accepts it.”

Technically, this explanation was true.  No mere document is a contract unless it has been executed by the parties. But this was not really the question being asked.  The question “Is this a contract?” was really a question about whether or not the purchaser was entering into a binding contract.  But the estate agent was always able to avoid having to answer this question truthfully because the name of the document, “Contract Note” suggested that it was something less than a binding contract.

The new Contract of Sale of Real Estate is appropriately titled “Contract of Sale of Real Estate”.

Contract Note – An Alternative Contract

The Contract Note was also deceptive insofar as it presented as a lesser alternative to the full “Contract of Sale of Real Estate” which was also prescribed in the Estate Agents (Contracts) Regulations 1997.

The fact that two contract documents were prescribed, one being the Contract Note and the other being the Contract of Sale of Real Estate, made it even easier for real estate agents to pretend that the Contract Note was either not a contract, or a lesser form of contract.

In fact, the Contract Note was every bit as powerful as the full version of the Contract of Sale of Real Estate.  It was just that the details were hidden from consumers.

Using the concept of “incorporation by reference” the Contract Note displayed only brief details of the transaction on its face, but it bound the purchaser to all of the conditions contained in the Contract of Sale of Real Estate by including the following clause under the heading “SUBJECT TO”:

“The general conditions of sale, other than GC3, contained in the Contract of Sale of Real Estate prescribed under section 10 of the Estate Agents Act 1980.”

Of course, no purchaser would go to the trouble of looking up the Estate Agents Act to find out what the full Contract of Sale of Real Estate contained.  Not that it would do them any good anyway, as Section 10 the Estate Agents Act has been changed by subsequent amendments to to the point that a lay-person would soon lose the trail.  So what would the purchaser do?  The purchaser would ask the estate agent.

There are three problems with estate agents who answer questions asked by purchasers in relation to contracts.  First, the estate agent doesn’t want to purchaser to be “spooked” into seeking legal advice before signing.  Second, the estate agent doesn’t know anyway.  Third, it is illegal for an estate agent to offer legal advice to anyone, let alone a purchaser in circumstances where the estate agent is in a conflict of interests.

The answer of the estate agent was invariably, “It’s just standard wording, and if there’s a contract later it will have the general conditions in it.” Technically true, but highly deceptive nonetheless.

More about "Contract Note Banned!"...

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OPINION
by Tim O'Dwyer M.A., LL.B
Solicitor
Consumer Advocate
watchdog@argonautlegal.com.au

There is an old joke about Lady Cul de Sac.  She did not want the title, but there was no way out.

Julie James (not her real name) did not want to complete the contract she signed to sell her investment property after she received a significantly better offer from another party.   When her buyer sued for specific performance there was no way out.  Julie had to settle.

Then two estate agents claimed commissions on this sale.  Only one agent (let’s call him “Alex”) actually sold Julie’s two-story commercial building.  Trouble was, Julie had earlier engaged the other agent (let’s call him “Harold”) under an “exclusive” agreement.  This meant that Harold was legally (but hardly morally) entitled to commission on any sale during the term of his engagement – whether he made the sale or not.

Harold’s agency was on foot on 24th May when Alex and Julie, unbeknownst to Harold, met at the property.  Julie told Alex she was considering a purchase offer through Harold, but asked Alex if he could do better for her.  Alex quickly approached a developer before arranging a meeting between himself, the developer and Julie on 27th May.  A deal was soon done, with formal documents to be signed shortly.

Meanwhile Harold’s agency would continue until 26th June.  Because Julie mistakenly thought this ran out on 1st June, she signed a “sole agency” agreement on 2nd June with Alex then, immediately afterwards, a sale contract with the developer.  After the sale settled on 20th June, Julie had to pay Harold’s commission.  When she refused to pay Alex’s commission, he sued.

More about "How To Pay Two Commissions In One Sale"...

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OPINION
by Tim O'Dwyer M.A., LL.B
Solicitor
Consumer Advocate
watchdog@argonautlegal.com.au

When will governments put in place stronger legislative measures to protect real estate consumers not only from self-serving real estate agents, but also from their own trusting natures?

The story below from a school teacher client of mine, whilst ending happily, gives ample reason for a long-overdue legal prohibition on agents’ referring buyers to building inspectors, mortgage brokers, solicitors and the like.

"A recent experience with building inspectors and a real estate salesman may serve as a warning to others looking to purchase a home.  My experience was enough to turn a normally reasonable person into someone with noticeable traits of paranoia.

It all started when my partner and I visited a real estate agency as part of our search for a new home.  The salesman we dealt with soon showed us a tenanted property – which he happened to own himself.  The house, although thirty years old, was a log cabin with beautiful timber cathedral ceilings, it had a touch of class.

The seller/salesman negotiated a sale price with us and, while we were signing the contract, helpfully gave us a card (from many others in his office) for a building (and pest) inspector.  He suggested that this fellow was thorough, but cheaper than the rest.  My partner and I were thankful for this advice, and happily engaged the recommended inspector...

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OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

Peter Francis is a high-flying legal-eagle with the high-powered law firm Maddocks Lawyers of Melbourne. Peter Francis wrote a letter to a vendor of real estate on behalf of a very well known real Melbourne estate agent, accusing the vendor of "dummy bidding". It is highly unusual for a lawyer to make a direct allegation of such a serious nature, and so I decided to investigate the matter.

Why did Francis write to the vendor?

Here is the letter written by Peter Francis of Maddocks Lawyers to the vendor. Details of the vendor and the estate agent have been blanked out because at this stage I want to focus on the letter, rather than the parties involved.

What is of particular interest is the following:

"...our client subsequently discovered that the person to whom the property was knocked down was a 'dummy bidder' and that he made the bid on your behalf within the meaning of section 38 of the Sale of Land Act 1962.

Of course, our client did not know and had no way of knowing that any of the bids which it accepted from the 'dummy bidder' were made on your behalf and were not genuine."

Given that the estate agent did not initially know that the bidder was a 'dummy bidder', something must have happened to bring this to the attention of the estate agent. What was the "smoking gun" that caused the estate agent to realise that he had a dummy bidding situation on his hands? In other words, what was the evidence?

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OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

Hot on the heels of the contract switchers at Barry Plant Real Estate Croydon comes Ranges First National Real Estate of Belgrave. But things get much worse when the switching of contracts is compounded with lies and threats as part of an attempted cover-up.

The contract switch

As usual (see other postings on contract switching), we told the Ranges First National Real Estate not to use the REIV Contract Note in our client's sale, as we had prepared a full Contract of Sale for this purpose. And as often happens in contract switching cases, the first we knew of the switch was when the estate agent sent us an REIV Contract Note attached to the Section 32 Vendors Statement.

I immediately sent a fax to Ranges First National Real Estate, addressed to sales consultant Jim Conder, and estate agency director Rik Rushton, asking for an explanation. Here is the explanation Jim Conder left for me by voicemail:

“Peter it’s Jim Conder from Ranges First National, I know you’ve sent us a fax in regards to the contract note.  There was no deception in using that, what’s happened is that the page in regards to not using a contract note was faxed to us and put in our file, the section 32 we had emailed and uploaded that, so what’s happened is we’ve got the section 32 prior to the fax, and given that to the clients, and obviously that fax has been put in our main file, and you’ll notice that the contract was written up the very next day.  So, it’s just obviously that fax did not come to my attention until that’s obviously been drawn up.  I’m happy to have it written up by both parties if that’s an issue, but there was no-one hiding anything or not wanting to use it.  It’s just that the fax has gone into one section, and the emailed section 32 has gone into another…”

OK, apparently poor office management had meant that an important fax from the vendor's lawyer had been filed without being read. I accepted this. However, Conder's explanation that he had received only the Section 32 did not ring true. The Contract of Sale and the Section 32 had been sent in a single PDF document, so it was not possible for Conder to have received only the Section 32. I concluded that Conder was telling porkies!

ASIDE: As disgraced US President Richard Nixon discovered, bad behaviour is one thing, but it's the lies and the cover-up that can really compound a problem.

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OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

According to Chris Vedelago, writing for The Age newspaper, "Falling sales levels and the prospect of a weaker market has led more than one in 10 real estate companies to consider selling up...The number of companies looking to move out of real estate has quadrupled...The Real Estate Institute of Victoria says agency revenues have dropped 20%." When things get tough for estate agents consumers must be ever more alert for crooked behaviour.

Times are hard for estate agents

"Softer market has estate companies ready to pack it in" is the title of the article by Chris Vedelago (The Age Wednesday 20 August, 2008 p.9).

According to Vedelago,

"Last month, the Real Estate Institute of victoria said that agency revenues may have fallen by as much as 20% across Melbourne in line with a decline in the number of transactions."

According to the CEO of the REIV, Enzo Raimondo:

"The good ones will survive and get stronger, while the marginal operators will disappear. That's not necessarily a bad thing, either."

What was left unsaid is the likelihood that these "marginal operators" will not leave this normally lucrative industry without a struggle, and there is nothing more dangerous for real estate consumers than desperate estate agents with cash-flow problems.

More about "Estate Agent Theft Threat Increasing"...

OPINION
by Neil Jenman
Consumer Advocate

A former Ray White franchise agent, John Michael Talia, has been convicted of obtaining property by deception.

Last Thursday (August 14, 2008), after the guilty verdict was read out in the Victorian County Court, John Talia was remanded in custody. Locked up.

Well done prosecutors. It's about time that agents who rob the naïve and the elderly were properly punished - and the proper punishment for agents such as John Talia is a criminal conviction and a stint behind bars.

John Talia's crime was a simple and common real estate crime. He bought the home of an elderly man for less than its real value.

The elderly man's home was worth $300,000, but Talia, in his role as a real estate agent for Ray White in Doncaster (operating under the network slogan of "The Right Advice") made sure that the man received the wrong advice.

Talia arranged for the elderly man to be tricked into thinking his home was worth between $135,000 and $155,000. Talia then offered him $145,000.

More about "The Conviction of John Talia"...

OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

Geoff Thompson is the Director of Barry Plant Real Estate in Croydon Victoria, and the Barry Plant Real Estate tag line is "The red carpet experience". I felt that the red carpet had been pulled out from under me and my client when Geoff Thompson's sales representative Pauline Ferguson switched contracts without my knowledge and without any explanation.

Secret contract switch

Contract switching is a major problem in the real estate industry. The reason contracts are switched by estate agents has nothing to do with protecting the client's interests, and can cause all kinds of problems for the client and their lawyer.

In an effort to reduce the likelihood of lazy or incompetent estate agents tampering with our clients' contracts, I advise every estate agent in writing, 'The REIV "Contract Note" is not to be used in this sale...', and I provide detailed instructions designed to ensure that the estate agent doesn't spoil the client's sale.

Unfortunately, some estate agents choose to disobey both the law and the directions of their client's lawyer.

Pauline Ferguson, switched the contract my firm had prepared, and replaced it with a simple "fill in the blanks" Contract Note. Neither Pauline Ferguson nor her boss, Geoff Thompson, made any attempt to discuss the matter with me (probably because they knew they would be told reminded that it is illegal for them to tamper with contracts), and secretly switched the contracts without my knowledge.

Geoff Thompson offers no explanation

As I have done with other contract switchers, I sent a fax to Geoff Thompson, addressed to "The Principal, Barry Plant Real Estate Croydon". I put the following to Geoff Thompson:

"We seek your explanation for the improper and unlawful “switching of contracts”.  We understand that it was Pauline Ferguson of your office who has switched the contracts, and that she is neither a legal practitioner nor a fully licensed estate agent.

In our fax to your office of 19th May 2008 we stated quite clearly:

“The REIV “Contract Note” is not to be used in this sale.  We have been instructed to prepare the legal documents by which the sale of the above property is to be effected, and we have prepared the combined Contract Note and Section 32 Vendor’s Statement for this purpose.  There is no need for the preparation of an REIV Contract Note

Our Contract Note and its Special Conditions provide the vendor with maximum legal protection, and take into account such issues as land identity, purchaser acknowledgements and warranties, and comprehensive default provisions.  No part of it is to be altered without prior consultation with us.”

Despite these clear instructions, the contract was secretly switched and replaced with a Contract Note drafted by a non-lawyer from your office.  No person from your office made any attempt to discuss the matter with the vendor’s legal representative, nor was our client advised to seek our advice before being invited to execute the substitute contract note.

We believe that the switching of contracts was kept from us because you and your staff knew that we would not allow it.

We regard this conduct as an illegal act of deception, requiring a full and immediate explanation."

Neither Geoff Thompson nor Pauline Ferguson had anything to say on the matter, apparently believing that by keeping quiet the problem would just go away.

More about "Geoff Thompson - Contract Switching At Barry Plant RE"...

by Tim O'Dwyer M.A., LL.B
Solicitor
Consumer Advocate
watchdog@argonautlegal.com.au

Real estate consumer protection goes west as a result of a convoluted dog’s breakfast amendment to the law, according to Tim O'Dwyer.

Linda Lavarch MP noticed two Legal Aid lawyers sitting in the public gallery during a recent session of State Parliament.  “They had tears in their eyes as the Attorney rose to speak,” she later told her parliamentary colleagues before explaining how these lawyers saw firsthand the misery caused by payday lenders’ interest rates.  It was understandable, she said, that lawyers brought to tears by clients’ stories would be emotional over Attorney-General Kerry Shine’s Consumer Credit and Other Acts Amendment Bill which would limit the lenders’ charges.

Any conveyancing lawyers present would have also wept - less with joy over this long-overdue action, and more with despair over the betrayal of real estate consumers by the Bill’s unrelated amendment of Section 24 of the Legal Profession Act 2007.

While the Bligh government was effectively giving a green light to legally unqualified estate agents to continue to  prepare legally binding contracts, the weepiest moment came when the Attorney-General said the amendment gave “certainty” to agents and solicitors regarding their “roles and responsibilities” within property transactions.  Yet Mr Shine was aware of the inability of most agents to properly prepare contracts because his office had been briefed with examples of agents’ contractual recklessness, incompetence, ignorance and illiteracy.

The only “certainty” is that agents will continue to control the contracting process.

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Opinion by Neil Jenman
Consumer Advocate

Victoria's real estate industry is embroiled in another scandal. This time, the body at the centre of the scandal is the Real Estate Institute of Victoria (the REIV) and its CEO, Mr Enzo Raimondo.

The REIV is an industry association whose members comprise around 80 per cent of the state's 6,000 estate agents. The REIV's purpose is to protect the interests of its member agents. One of its aims is to convince the public that REIV agents are honest and ethical. It's a tough task.

As CEO, Enzo Raimondo is the REIV's main spokesperson. In my opinion, the REIV has the wrong person as its chief.

Since the turn of the century, Raimondo has made a constant series of embarrassing public blunders as he has sought, in many cases, to defend the indefensible.

Back in 2000, when the dummy bidding scandal was at its peak, Raimondo told an ABC Radio interviewer, "I'm not sure what is meant by dummy bids. I haven't heard anyone explain to me what a dummy bid is." The interviewer explained it to him, "Someone in the audience pretending to be a real bidder when they are not." Raimondo immediately hit back with this gem of wisdom, "The auction process has been around for a long, long time."

When Raimondo tried the same logic on Radio 3AW, the interviewer said, "Enzo, you are treating me as an idiot here."

And therein lies the problem that has plagued the Victorian institute this century. Enzo Raimondo's response to many scandals is to make an idiotic statement. In doing so, he not only damages his own credibility, he tarnishes every agent - good or bad - in the entire state.

It seems, finally, however, that Enzo Raimondo may have made one blunder too many.

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OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

David Sowersby is the Director of Walshe & Whitelock Real Estate, Brunswick and an Associate of the Real Estate Institute of Australia. David Sowersby is also a "contract switcher". Some years ago I pounced on Sowersby for "switching" contracts, and thought he had changed his ways. Unfortunately, it seems that when you've been in the industry as long as Sowersby has, old habits die hard.

Every property lawyer and conveyancing in Victoria is familiar with the grubby practice of "contract switching". It's where the lawyer or conveyancer prepares a contract for a vendor client, only to discover that the estate agent has "switched" the prepared contract for a simple one-page Contract Note. The Contract Note is a document distributed to estate agents by the Real Estate Institute of Victoria (REIV), supposedly to be used to assist a purchaser to submit an offer when no contract is available. Where a lawyer or conveyancer has prepared a contract for the sale the estate agent is required to use the prepared contract, and is not permitted to use the Contract Note.

Why do estate agents "switch" contracts? The most common reason is laziness. Basically, estate agents don't know much about contracts, don't like reading them, and certainly don't like having to answer purchasers' questions about them. The simple fill-in-the-blanks Contract Note is something of a no-brainer for the estate agent. Sometimes there may be more selfish reasons (See "Shane Lowe of Methven Real Estate - Switching of Contracts and Conditions").

What was David Sowersby's reason for "switching" a comprehensive Contract of Sale of Real Estate, containining special conditions designed to protect the parties, with a simple and inadequate Contract Note; particularly after he had been told off for the same thing in the past? I wrote to Sowersby as follows:

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OPINION
by Peter Mericka B.A., LL.B
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd

Estate agents have a marvelous talent for redefining words so that their everyday meaning is distorted to the point that they become oxymorons. The use of the word "transparent" by Real Estate Institute of Victoria CEO Enzo Raimondo suggests that the transparent "window" offered to consumers is really a two-way mirror.

We have previous demonstrated the way in which estate agents have redefined common words to suit themselves. For example, the word "sale" as defined in the Exclusive Sale Authority document produced by the Real Estate Institute of Victoria (REIV) is defined so that a property can be regarded as sold (and the estate agent can collect a commission) even if the property is not sold. See also our blog posting on the term "ethics" at Maitland Horler Ethical Agents - An Oxymoron?

It seems that estate agents have now redefined the term "transparency" as it applies to real estate transactions, so that the term refers to a concept similar to that of the two-way mirror. According to Wikipedia, "A two-way mirror, also called a one-way mirror, is a mirror which is partially reflective and partially transparent. It is used with a darkened room on one side and a well-lit room on the other, allowing those in the darkened room to see into the lighted room but not vice versa."

In a real estate transaction it is the consumer who sits in the well-lit room, while the estate agent occupies the dark side.

More about "Transparency? More Like A Two-Way Mirror"...

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