2012/413

Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012

Pursuant to section 14 of the Real Estate Agents Act 2008, the Real Estate Agents Authority, with the approval of the Minister of Justice given in accordance with section 17 of that Act, and after consultation in accordance with section 16 of that Act, makes the following rules.

Contents

1 Title
2 Commencement
3 Scope and objectives
4 Interpretation
5 Standards of professional competence
6 Standards of professional conduct
7 Duty to report misconduct or unsatisfactory conduct
8 Duties and obligations of agents
9 Client and customer care
10 Client and customer care for sellers' agents
11 Client and customer care for buyers' agents
12 Information about complaints
13 Revocation

Rules

1 Title

These rules are the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012.

2 Commencement

These rules come into force on 8 April 2013.

3 Scope and objectives

3.1 These practice rules setting out a code of professional conduct and client care have been prepared by the Real Estate Agents Authority (the Authority). They constitute the Professional Conduct and Client Care Rules required by section 14 of the Real Estate Agents Act 2008.
3.2 These practice rules set out the standard of conduct and client care that agents, branch managers, and salespersons (collectively referred to as licensees) are required to meet when carrying out real estate agency work and dealing with clients.
3.3 These practice rules are not an exhaustive statement of the conduct expected of licensees. They set minimum standards that licensees must observe and are a reference point for discipline. A charge of misconduct or unsatisfactory conduct may be brought and dealt with despite the charge not being based on a breach of any specific rule.
3.4 These practice rules must be read in conjunction with the Act and regulations, and do not repeat duties and obligations that are included in the Act or regulations.

4 Interpretation

4.1 In these rules,—
Act means the Real Estate Agents Act 2008
customer means a person who is a party or potential party to a transaction and excludes a prospective client and a client
prospective client means a person who is considering or intending to enter into an agency agreement with an agent to carry out real estate agency work
regulations means regulations made pursuant to the Act.

4.2 Unless the context otherwise requires, terms used in these rules have the same meaning as in the Act.

5 Standards of professional competence

5.1 A licensee must exercise skill, care, competence, and diligence at all times when carrying out real estate agency work.
5.2 A licensee must have a sound knowledge of the Act, regulations, rules issued by the Authority (including these rules), and other legislation relevant to real estate agency work.

6 Standards of professional conduct

6.1 A licensee must comply with fiduciary obligations to the licensee's client.
6.2 A licensee must act in good faith and deal fairly with all parties engaged in a transaction.
6.3 A licensee must not engage in any conduct likely to bring the industry into disrepute.
6.4 A licensee must not mislead a customer or client, nor provide false information, nor withhold information that should by law or in fairness be provided to a customer or client.

7 Duty to report misconduct or unsatisfactory conduct

7.1 A licensee who has reasonable grounds to suspect that another licensee has been guilty of unsatisfactory conduct1 may make a report to the Authority.
7.2 A licensee who has reasonable grounds to suspect that another licensee has been guilty of misconduct2 must make a report to the Authority.
7.3 A licensee must not use, or threaten to use, the complaints or disciplinary process for an improper purpose.
7.4 If a licensee learns that a person is committing an offence by undertaking real estate agency work without a licence, the licensee must immediately report the matter to the Authority.

8 Duties and obligations of agents

Promoting awareness of rules

8.1 An agent who is operating as a business must display these rules prominently in the public area of each office or branch, and provide access to them on every website maintained by the agent for the purposes of the business.
8.2 A licensee must make these rules available to any person on request.
Supervision and management of salespersons

8.3 An agent who is operating as a business must ensure that all salespersons employed or engaged by the agent are properly supervised and managed.3
Ensuring knowledge of regulatory framework and promoting continuing education

8.4 An agent who is operating as a business must ensure that all licensees employed or engaged by the agent have a sound knowledge of the Act, regulations, rules issued by the Authority (including these rules), and other legislation relevant to real estate agency work.
8.5 An agent who is operating as a business must ensure that licensees employed or engaged by the agent are aware of and have the opportunity to undertake any continuing education required by the Authority.

9 Client and customer care

General

9.1 A licensee must act in the best interests of a client and act in accordance with the client’s instructions unless to do so would be contrary to law.
9.2 A licensee must not engage in any conduct that would put a prospective client, client, or customer under undue or unfair pressure.
9.3 A licensee must communicate regularly and in a timely manner and keep the client well informed of matters relevant to the client’s interest, unless otherwise instructed by the client.
9.4 A licensee must not mislead customers as to the price expectations of the client.

9.5 A licensee must take due care to—
(a) ensure the security of land and every business in respect of which the licensee is carrying out real estate agency work; and
(b) avoid risks of damage that may arise from customers, or clients that are not the owner of the land or business, accessing the land or business.

9.6 Unless authorised by a client, through an agency agreement, a licensee must not offer or market any land or business, including by putting details on any website or by placing a sign on the property.
Agency agreements and contractual documents

9.7 Before a prospective client, client, or customer signs an agency agreement, a sale and purchase agreement, or other contractual document, a licensee must—
(a) recommend that the person seek legal advice; and
(b) ensure that the person is aware that he or she can, and may need to, seek technical or other advice and information; and
(c) allow that person a reasonable opportunity to obtain the advice referred to in paragraphs (a) and (b).

9.8 A licensee must not take advantage of a prospective client's, client’s, or customer’s inability to understand relevant documents where such inability is reasonably apparent.
9.9 A licensee must not submit an agency agreement or a sale and purchase agreement or other contractual document to any person for signature unless all material particulars have been inserted into or attached to the document.
9.10 A licensee must explain to a prospective client that if he or she enters into or has already entered into other agency agreements, he or she could be liable to pay full commission to more than 1 agent in the event that a transaction is concluded.
9.11 On notice of cancellation of an agency agreement being given or received by the agent under the agreement, the agent must advise the client, in writing, of the name of each customer (if any) in respect of whom the agent would claim a commission, were the customer to conclude a transaction with the client.
9.12 An agent must not impose conditions on a client through an agency agreement that are not reasonably necessary to protect the interests of the agent.
9.13 When authorised by a client to incur expenses, a licensee must seek to obtain the best value for the client.
Conflicts of interest

9.14 A licensee must not act in a capacity that would attract more than 1 commission in the same transaction.
9.15 A licensee must not engage in business or professional activity other than real estate agency work where the business or activity would, or could reasonably be expected to, compromise the discharge of the licensee’s obligations.
Confidentiality

9.16 A licensee must not use information that is confidential to a client for the benefit of any other person or of the licensee.

9.17 A licensee must not disclose confidential personal information relating to a client unless—
(a) the client consents in writing; or
(b) disclosure is necessary to answer or defend any complaint, claim, allegation, or proceedings against the licensee by the client; or
(c) the licensee is required by law to disclose the information; or
(d) the disclosure is consistent with the information privacy principles in section 6 of the Privacy Act 1993.

9.18 Where a licensee discloses information under rule 9.17(b), (c) or (d), it may be only to the appropriate person or entity and only to the extent necessary for the permitted purpose.

10 Client and customer care for sellers' agents

10.1 This rule applies to an agent (and any licensee employed or engaged by the agent) who is entering, or has entered, into an agency agreement with a client for the grant, sale, or other disposal of land or a business.
Appraisals and pricing

10.2 An appraisal of land or a business must—
(a) be provided in writing to a client by a licensee; and
(b) realistically reflect current market conditions; and
(c) be supported by comparable information on sales of similar land in similar locations or businesses.

10.3 Where no directly comparable or semi-comparable sales data exists, a licensee must explain this, in writing, to a client.
10.4 An advertised price must clearly reflect the pricing expectations agreed with the client.
Relationship between prospective client's choices about how to sell and licensee's benefits

10.5 Before a prospective client signs an agency agreement, the licensee must explain to the prospective client how choices that the prospective client may make about how to sell or otherwise dispose of his or her land or business could impact on the individual benefits that the licensee may receive.
Agency agreements

10.6 Before a prospective client signs an agency agreement, a licensee must explain to the prospective client and set out in writing—
(a) the conditions under which commission must be paid and how commission is calculated, including an estimated cost (actual $ amount) of commission payable by the client, based on the appraisal provided under rule 10.2:
(b) when the agency agreement ends:
(c) how the land or business will be marketed and advertised, including any additional expenses that such advertising and marketing will incur:
(d) that the client is not obliged to agree to the additional expenses referred to in rule 10.6(c):
(e) that further information on agency agreements and contractual documents is available from the Authority and how to access this information.

Disclosure of defects

10.7 A licensee is not required to discover hidden or underlying defects in land but must disclose known defects to a customer. Where it would appear likely to a reasonably competent licensee that land may be subject to hidden or underlying defects4, a licensee must either—
(a) obtain confirmation from the client, supported by evidence or expert advice, that the land in question is not subject to defect; or
(b) ensure that a customer is informed of any significant potential risk so that the customer can seek expert advice if the customer so chooses.

10.8 A licensee must not continue to act for a client who directs that information of the type referred to in rule 10.7 be withheld.
Advertising and marketing

10.9 A licensee must not advertise any land or business on terms that are different from those authorised by the client.
Contractual documentation and record keeping

10.10 A licensee must submit to the client all offers concerning the grant, sale, or other disposal of any land or business, provided that such offers are in writing.
10.11 If a licensee is employed or engaged by an agent, the licensee must provide the agent with a copy of every written offer that the licensee submits.
10.12 An agent must retain, for a period of 12 months, a copy of every written offer submitted. This rule applies regardless of whether the offer was submitted by the agent or by a licensee employed or engaged by the agent and regardless of whether the offer resulted in a transaction.

11 Client and customer care for buyers' agents

11.1 This rule applies where an agency agreement authorising an agent to undertake real estate agency work for a client in respect of the purchase or other acquisition of land or a business on the client's behalf (a buyer's agency agreement) is being entered into, or has been entered into.

11.2 Before a prospective client signs a buyer's agency agreement, a licensee must explain to the prospective client and set out in writing—
(a) the conditions under which commission must be paid and how commission is calculated, including an estimated cost (actual $ amount) of commission payable by the client, based on the average of the estimated price range of the land or business that the client is seeking to purchase:
(b) when the agency agreement ends:
(c) any additional services that the licensee will provide, or arrange for the provision of, on the client's behalf and the expenses relating to those services payable by the client:
(d) that the client is not obliged to agree to the additional expenses referred to in rule 11.2(c):
(e) that further information on agency agreements and contractual documents is available from the Authority and how to access this information.

11.3 A licensee must not undertake real estate agency work with customers, or other licensees, on terms that are different from those that are authorised by the client on whose behalf the licensee is carrying out real estate agency work.
11.4 A licensee must submit all offers that the licensee is instructed by the client to make concerning the purchase or acquisition of any land or business, provided that such offers are in writing.
11.5 If a licensee is employed or engaged by an agent, the licensee must provide the agent with a copy of every written offer that the licensee submits.
11.6 An agent must retain, for a period of 12 months, a copy of every written offer submitted. This rule applies regardless of whether the offer was submitted by the agent or by a licensee employed or engaged by the agent and regardless of whether the offer resulted in a transaction.

12 Information about complaints

12.1 An agent must develop and maintain written in-house procedures for dealing with complaints and dispute resolution. A copy of these procedures must be available to clients and consumers.
12.2 A licensee must ensure that prospective clients and customers are aware of these procedures before they enter into any contractual agreements.
12.3 A licensee must also ensure that prospective clients, clients, and customers are aware that they may access the Authority’s complaints process without first using the in-house procedures; and that any use of the in-house procedures does not preclude their making a complaint to the Authority.

12.4 A licensee employed or engaged by an agent must advise the agent within 10 working days of becoming aware of—
(a) any complaint made to the Authority against them, the decision of the Complaints Assessment Committee made in respect of that complaint, and any order made by the Committee in respect of that complaint; and
(b) if the matter proceeds to the Tribunal, the decision of the Tribunal in respect of the matter, and any order made by the Tribunal in respect of the matter.

12.5 If a licensee was employed or engaged by a different agent at the time of the conduct relevant to the complaint referred to in rule 12.4, the licensee must also provide the information referred to in rule 12.4(a) and (b) to that agent within 10 working days of becoming aware of the complaint.

13 Revocation

The Real Estate Agents Act (Professional Conduct and Client Care) Rules 2009 (SR 2009/304) are revoked.

Dated at Wellington this 11th day of December 2012.
The Common Seal of the Real Estate Agents Authority was affixed in the presence of:
[Seal]
Kristy McDonald,Chair.
Peter McDermott,Board member.

Explanatory note

This note is not part of the rules, but is intended to indicate their general effect.
These rules, which come into force on 8 April 2013, replace the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2009 (the 2009 Rules). They set out the standard of conduct and care that agents, branch managers, and salespersons are required to meet when carrying out real estate agency work.
In comparison with the 2009 rules, these rules—

make changes to licensees' obligations to provide information to prospective clients, clients, or consumers, including changes that require licensees to—

recommend that a person obtains legal advice before signing an agency agreement, sale and purchase agreement, or other contractual document:
explain the risks of double commission to all prospective clients:
explain to a prospective client, before an agency agreement is signed, the relationship between choices that the person may make about how to sell that person's property or business and the individual benefits that the licensee may receive:
provide a former client with a list of all persons in respect of whom the agent would claim a commission were the former client to conclude a transaction with that person, in the situation where the agent under an agency agreement receives notice of cancellation of that agreement from the client:

set out client and customer care rules that apply in the situation where an agreement authorising an agent to act for a client in relation to the purchase of a property or business (referred to in the rules as a buyer's agency agreement) is being entered into or has been entered into:
require agents to ensure that salespersons employed by them are properly supervised and managed:
make a number of other changes concerning licensee's obligations.

Further information about these changes and the new rules can be found at http://www.reaa.govt.nz/

Issued under the authority of the Acts and Regulations Publication Act 1989.
Date of notification in Gazette: 13 December 2012.
These rules are administered by the Real Estate Agents Authority.

1 Unsatisfactory conduct is defined in the Act: see section 72.
2 Misconduct is defined in the Act: see section 73.
3 The Act defines what is meant by a salesperson being properly supervised and managed by an agent or a branch manager for the purposes of section 50 of the Act: see section 50(2).
4 For example, houses built within a particular period of time, and of particular materials, are or may be at risk of weathertightness problems. A licensee could reasonably be expected to know of this risk (whether or not a seller directly discloses any weathertightness problems). While a customer is expected to inquire into risks regarding a property and to undertake the necessary inspections and seek advice, the licensee must not simply rely on caveat emptor. This example is provided by way of guidance only and does not limit the range of issues to be taken into account under rule 10.7.