Who can raise a concern?
Anyone can raise a concern with us about the behaviour of a current or former licensee.
What can a concern be raised about?
A concern can be rasied about the behaviour of a licensee if they do not comply with the Real Estate Agents Act 2008, Regulations or the Code of Professional Conduct and Client Care.
If someone does break the law, or falls short of the standard set out in the Code, this may constitute unsatisfactory conduct or misconduct depending on how far short of the standard the conduct is found to be.
The terms "unsatisfactory conduct" and "misconduct" are defined below:
Unsatisfactory conduct
A real estate agent may be found guilty of unsatisfactory conduct if they carry out real estate agency work that:
- falls short of the standard that a reasonable member of the public is entitled to expect from a reasonably competent licensee; or
- contravenes a provision of the Real Estate Agents Act 2008 or of any regulations or rules made under the Act; or
- is incompetent or negligent; or
- would reasonably be regarded by agents of good standing as being unacceptable.
Misconduct
A real estate agent may be found guilty of misconduct if their conduct:
- would reasonably be regarded by agents of good standing, or reasonable members of the public, as disgraceful; or
- constitutes seriously incompetent or seriously negligent real estate agency work; or
- consists of a wilful or reckless contravention of-
- the Real Estate Agents Act 2008; or
- other Acts that apply to the conduct of licensees; or
- regulations or rules made under the Act; or
- constitutes an offence for which the licensee has been convicted, being an offence that reflects adversely on the licensee's fitness to be a licensee.
What happens when a concern is raised?
The first thing we do when we receive a concern is confirm that it is in our jurisdiction to resolve – that is, it relates to real estate agency work or the behaviour could be considered to be misconduct.
If we can’t help resolve the concern…
We will provide the person with the appropriate information and refer them to the agency than can help you. They will be sent a letter with this information.
If we can help resolve the concern …
We will decide which of the following three responses is the most appropriate way to resolve the concern:
- Compliance advice: if little or no detriment resulted from the licensee's behaviour, the behaviour is not on-going, the licensee has not had any previous compliance problems and there are no other wider public interest issues as a result of the behaviour, we will send the licensee a compliance advice letter.
- Alternative Dispute Resolution (ADR): if the concern is only between the licensee and the complainant, doesn’t involve issues of wider public interest and is capable of being resolved between the licensee and the complainant, we will suggest ADR as the best way to resolve the concern.
- Enforcement: if it is a serious concern and does not fit into one of the above categories it will be heard and dealt with by a Complaints Assessment Committee as a formal complaint. Generally these are concerns where there was an intention to breach the law or the relevant Rules and Regulations, the licensee has previously engaged in similar behaviour or there is a wider public interest in the behaviour being fully investigated and considered.
This approach means that the concern will be responded to in a way that is appropriate to its seriousness and both the licensee and the complainant will have timely and satisfactory resolution of the concern.
What is the role of the Real Estate Agents Disciplinary Tribunal?
The Real Estate Agents Disciplinary Tribunal (the Tribuanal) 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. 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 Tribunal is serviced by the Ministry of Justice.
The Tribunal considers any charges laid before it by a Complaints Assessment Committee (CAC). It also hears appeals about decisions on complaints taken by a Committee and on application can review licensing decisions of the Registrar. It can also consider an application by a CAC 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 Tribunal finds that a charge against a licensee is proved, the Tribunal may make any of the orders that can be made by a CAC 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 being heard by a Complaints Assessment Committee?
If a concern is raised about you and it becomes a formal complaint that is heard by a Complaints Assessment Committee (CAC), the CAC is required to carry out their functions in a way that is consistent with natural justice. This means that the CAC must advise the person complained of that they are the subject of a complaint, and give that person the right to respond. A CAC can receive and take evidence on oath. The licensee will also receive a copy of the complaint.
If the CAC decides to refer a matter to the Real Estate Agents Disciplinary Tribunal (the 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 CAC to the 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 Tribunal when considering a complaint are also subject to the rules of natural justice. Anyone whose rights may be affected by the Tribunal proceedings is entitled to legal representation and has the right to appear before the Tribunal and be heard. The 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).
