Who can make a complaint?
The 2008 Act allows any person to complain to the Real Estate Agents Authority about the conduct of a licensee or former licensee. It will be possible to make a complaint about a wider range of matters under the 2008 Act than is currently possible under the 1976 Act.
How does the complaints process work?
When the Real Estate Agents Authority receives a complaint about a licensee, the Authority will refer it to a Complaints Assessment Committee. These Committees will have three members. One member will be drawn from the Authority Board and at least one member must be a lawyer with no less than seven years experience.
A Complaints Assessment Committee will be able to do a number of things including:
- investigate complaints and allegations
- decide to take no action on a complaint if, for example, it is determined to be unjustified or inconsequential
- on its own initiative, investigate allegations against a licensee
- promote resolution of complaints through negotiation, conciliation or mediation
- lay and prosecute charges of alleged misconduct before the Real Estate Agents Disciplinary Tribunal
- refer the complaint to another agency
- publish its decision.
If as the result of a hearing a Complaints Assessment Committee finds a licensee guilty of unsatisfactory conduct, it may make one or more of a number of orders including:
- censuring the licensee
- requiring a licensee to apologise
- requiring the licensee to undergo further training or education
- ordering the licensee to reduce, cancel or refund fees or rectify an error or omission
- fining the licensee up to $10,000 if an individual or $20,000 if a company
- ordering the licensee to pay costs to the complainant in respect of the inquiry, investigation or hearing by the Committee.
After enquiring into a complaint or allegation, a Complaints Assessment Committee may also decide that the complaint should be considered by the Real Estate Agents Disciplinary Tribunal.
What is the role of the Real Estate Agents Disciplinary Tribunal?
The Real Estate Agents Disciplinary Tribunal is an independent body that will consist of a Chairperson who is a barrister or solicitor with not less than seven years legal experience, plus up to four other members, one of whom must be a licensee under the Act. The Chairperson and members are appointed by the Minister of Justice, who must consult the REINZ on the first appointment of the member who is a licensee. The Disciplinary Tribunal is serviced by the Ministry of Justice.
The Disciplinary Tribunal considers any charges laid before it by a Complaints Assessment Committee. It also hears appeals about decisions on complaints taken by a Committee and on application can review decisions of the Registrar. It can also consider an application by a Committee to suspend a licensee's licence pending determination of a charge, or it can decide of its own volition to suspend a licence.
If the Disciplinary Tribunal finds that a charge against a licensee is proved, the Disciplinary Tribunal may make any of the orders that can be made by a Complaints Assessment Committee and/or one or more of a number of orders, including:
- cancelling or suspending the person's licence
- ordering the licensee's employment to be terminated and order that no agent employ or engage that person in connection with any real estate agency work
- requiring the licensee to pay a fine of up to $15,000 for an individual, and up to $30,000 if the licensee is a company
- ordering the licensee to pay compensation for actual loss of up to $100,000 to the complainant.
What rights or protections does a licensee have if they are the subject of a complaint?
Complaints Assessment Committees are required to carry out their functions in a way that is consistent with natural justice. This means that a Committee must advise the person complained of that they are the subject of a complaint, and give that person the right to respond. A Committee can receive and take evidence on oath.
If a Committee decides to refer a matter to the Disciplinary Tribunal it must give notice to the person to whom the charge relates, as well as to the complainant.
A licensee who has been the subject of a complaint has the same rights of appeal as a complainant. A licensee can therefore appeal a decision of a Committee to the Disciplinary Tribunal, and appeal a decision of the Tribunal to the High Court. There is a further appeal to the Court of Appeal, but only on questions of law.
The proceedings of the Disciplinary Tribunal when considering a complaint are also subject to the rules of natural justice. Anyone whose rights may be affected by Disciplinary Tribunal proceedings is entitled to legal representation and has the right to appear before the Disciplinary Tribunal and be heard. The Disciplinary Tribunal can take evidence on oath. Other than applications to review determinations by the Registrar, hearings are open to the public (except to the extent that privacy issues may apply).
What happens to existing complaints, or complaints about events before 17 November 2009?
Any complaints or disciplinary proceedings that have been commenced under the 1976 Act before 17 November 2009 will be completed as if the 1976 Act had not been repealed.
If a complaint is made about an event that occurred before 17 November 2009, but the complaint was not dealt with under the 1976 Act before that date, a Complaints Assessment Committee may consider the complaint and the Real Estate Agents Disciplinary Tribunal may also hear a charge. However, in these circumstances a complaint can only be made about something that could have been the subject of a complaint under the 1976 Act. Orders would also be restricted to those that would have been available under the 1976 Act
