Kamal Sharma and Wayne Keene have been censured after taking commissions on a sale from both the seller and buyer. Photos / Supplied / File
Two real estate agents have been censured and one ordered to repay thousands of dollars to a vendor after taking commissions on a sale from both the seller and buyer.
Kamal Sharma and Wayne Keene were both found guilty of unsatisfactory conduct for their roles in the 2017 transaction.
The pair were working for Resort Brokers, an Auckland-based broking company dealing in hospitality property.
A just-released Real Estate Authority (REA) decision says the vendor claimed Keene - the company's director - asked whether he would be interested in selling his property in May 2017.
The property was viewed by a buyer before an agency agreement had been drawn up. An agreement was subsequently drafted and backdated just days before a sale contract was signed.
The vendor also claimed the two agents arranged two commissions - one from him, and another from the purchaser.
The complainant said this amounted to a conflict of interest, as the agents were effectively acting on behalf of the buyer, rather than him - their vendor client.
He also alleged that Keene provided false information about the REA complaints process and offered him a $2000 payment to avoid investigators being called in.
In response, the licensees said the complainant refused to sign an agency agreement till after the purchaser had viewed the property.
They also claimed the vendor was unwilling to pay the full commission so he suggested splitting it with the purchaser. The vendor eventually paid $55,000 commission while the purchaser paid $30,000.
The commission was "heavily discounted and both portions represented a single commission", the agents claimed.
The decision does not provide details on the location of the property or how much it sold for.
The licensees admitted backdating the agency agreement but denied acting as "buyer agents".
Keene also denied providing false information about the complaints process.
"The $2000 payment offered ... to the complainant was to avoid costs associated with a complaint and not an admission of liability," he argued.
The REA ruled the agents were guilty of unsatisfactory conduct by failing to obtain an agency agreement, failing to comply with fiduciary duties to the client and taking two commissions on a single sale.
Their actions fell short of the expected standard of a reasonably competent licensee and contravened provisions in the Real Estate Agents Act.
The REA ruled there were clearly two commissions paid, not one.
"It was reasonable in the circumstances for the complainant to question whether the licensees were acting in his interests or those of the purchaser.
"A vendor naturally wants the highest price for the property and purchaser wants to pay the lowest. The same licensee cannot possibly discharge all his or her professional duties to both equally and to represent both their interests fully."
The decision dismissed claims Keene had provided false information and found his $2000 payment offer was not an attempt to dissuade the vendor from lodging a complaint.
In an email to the vendor, Keene had said he was confident they had not broken any rules and any complaint would not be upheld.
The decision described Keene's assessment as "overly optimistic".
Sharma was censured and ordered to repay the vendor more than $14,000 in commission. It is his second adverse disciplinary finding.
Keene, who did not receive any commission money, was censured and fined $4000.
Keene and fellow director Gordon McGregor confirmed the decision was being appealed but declined to comment further.
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