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Your real estate agent is behaving badly....

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... and you want to complain about that behaviour

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Making a complaint is different to taking a dispute to the ACT Civil and Administrative Tribunal

You can do both and perhaps stop bad behaviour, helping yourself and other tenants, and future tenants!

 

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IMPORTANT NOTE: The information provided is based on the current state of ACT tenancy law and details may change. While every effort has been made to ensure the information on this site is up-to-date it is not a substitute for specific legal advice on complex matters.

Please take note of when the page was last updated.

If the information here does not apply to your specific situation we suggest you seek expert assistance and advice

 

 

 

TENANCY TIPS:
Making a Complaint about your Real Estate Agent

** last updated: 08/07/09**

Download a .pdf version of this tipsheet 

Real Estate Agents (REAs) in the ACT are regulated by the Agents Act 2003.  This Act includes Rules of Conduct that bind all REAs.  The Office of Fair Trading (OFT) has the enforcement and compliance role in relation to this Act.

If you are in public housing there is a separate complaints process you can use (see Welfare Rights & Legal Centre for assistance). 

If your landlord manages your tenancy themselves without a REA there is no avenue for formal complaints.

How does a complaint differ from a dispute?

As noted in other Tenancy Tips leaflets, your tenancy is regulated by the Residential Tenancies Act 1997.  This sets out the rules by which your tenancy operates. 

Problems in tenancies are usually disputes arising out of breaches of these rules.   If you are wanting an order redressing a breach (such as getting repairs done, getting compensation, or  limiting access) then ACAT is where you should be going. 

You can refer to other Tenancy Tips sheets for details in relation to specific issues.

If your issue relates to complaints about the professional behaviour of your agent, or the policies or procedures the agency is employing in managing your tenancy (and possibly other tenancies) then the OFT may be able to address the problem.

What can I complain about?

The Rules of Conduct cover the behaviour of licensed agents and registered salespeople in the ACT in relation to their work.  Tenants are able to make a complaint as a customer of a REA, rather than as a client, since landlords are the clients.

The Rules of Conduct for real estate agents form Part 8.2 of Schedule 8 of the Agents Regulation 2003.  A complaint should be able to identify which of the rules is being breached.

The Real Estate Agent Rules of Conduct

The sections relevant to tenants are noted below:

S 8.2 Knowledge of Act and other laws

An agent must have a knowledge and understanding of the Act, and any other laws relevant to the kind of licence or certificate of registration held (including laws relating to residential tenancy, fair trading, trade practices, anti-discrimination and privacy) that may be necessary to allow the agent to lawfully exercise his or her functions as agent.

S 8.4 Honesty, fairness and professionalism

1)  An agent must act honestly, fairly and professionally with all parties in a transaction.

2)  An agent must not mislead or deceive any parties in negotiations or a transaction.

S 8.5 Skill, care and diligence

An agent must exercise reasonable skill, care and diligence.

S8.6 High pressure tactics, harassment or unconscionable conduct

An agent must not engage in high pressure tactics, harassment or harsh or unconscionable conduct.

S8.8 Confidentiality

An agent must not, at any time, use or disclose any confidential information obtained while acting on behalf of a client or dealing with a customer, unless—

a) the client or customer consents to the disclosure; or

b) the agent is permitted or compelled by law to disclose the information.

S8.10 To act in accordance with client’s instructions

An agent must act in accordance with a client’s instructions unless it would be contrary to the Act or otherwise unlawful to do so.

S8.18 Representations about Act

1) An agent must not falsely represent to a person the nature or effect of a provision of the Act.

2) An agent must not, either expressly or impliedly, falsely represent, whether in writing or otherwise, to a person that a particular form of agency agreement or any term of the agreement is required by the Act.

S8.34 Maintenance or repairs of rental property

1) An agent managing a rental property must promptly respond to and, subject to the principal’s instructions, attend to all requests by a tenant, for maintenance of, or repairs to, the property.

2) If the principal has given an instruction that a repair not be carried out, the agent must tell the principal if the principal’s failure to carry out the repair would constitute a breach of any tenancy agreement in force in relation to the property.

S8.37 Final inspection of property

An agent must take all reasonable steps to ensure that any final inspection of the property, on vacation of the property, is conducted in the presence of the tenant, unless otherwise authorised by the tenant.

S 8.38 Obtaining tenant’s signature for rental bond refund

An agent must not solicit or obtain the signature of a tenant to any document relating to the refund of a rental bond before the termination of the tenancy, unless the document directs that the bond be repaid in full to the tenant or transferred to another tenancy in accordance with the tenant’s directions.

Who is the agent representing?

To understand where the agent’s loyalty first lies be aware of:

S8.7. To act in client’s best interests.

An agent must act in the client’s best interest at all times unless it would be contrary to the Act or otherwise unlawful to do so.

The client’s (landlord’s) best interest does not always mirror the tenant’s (customer’s) best interest.

MAKING A COMPLAINT

The Office of Fair Trading

The OFT has a complaints process that is open to all consumers, including tenants.

The Advice and Complaints Unit runs an advice line open daily from 8:30am to 4:30pm Mon - Fri.

If the unit considers that a complaint made through their advice line requires investigating they may request a formal written complaint. This will allow the unit to commence its enquiries.

If you have difficulty getting through to the advice line, don’t panic. All formal written complaints lodged with the unit are considered for further investigation.  You can send a letter to:

ACT Office of Fair Trading

GPO Box 158

CANBERRA ACT 2601

OFT has wide ranging powers and can take action against offending agents in a multitude of ways: anything from contacting the agent for the purposes of re-education, to referral to ACAT for formal disciplinary action.

The manner in which the Unit chooses to act will be contingent upon the nature and severity of the breach, the particular history of the trader involved, and the potential for consumer detriment arising out of the conduct in question.

The Advice and Complaints Unit can be contacted on:

6207 0400

For information go to:

www.ors.act.gov.au/fairtrading 

This is a summary of your rights and responsibilities.
If you have a specific problem, you should seek more detailed advice.

The information provided is based on the current state of tenancy law and details may change.
Tenancy Tips © 2009 Tenants' Union ACT Inc.

The support of the ACT Government through the Dept. Justice & Community Safety is gratefully acknowledged