Your real estate agent is behaving badly and you want to complain about that behaviour.
Making a complaint is different from taking a dispute to the ACT Civil and Administrative Tribunal.
You can do both and perhaps help other tenants…
Real Estate Agents in the ACT are regulated by the Agents Act 2003 and Agents Regulation 2003, as well as Australian Consumer Law(ACL) The Agents Regulation includes Rules of Conduct that bind all real estate agents. Access Canberra operates Fair Trading (FT) which has the enforcement and compliance role in relation to these Acts.
If you are in public housing there is a separate complaints process you can use (see Canberra Community Law for assistance).
If your landlord manages your tenancy themselves without an agent, Access Canberra can only investigate very limited types of complaints, eg rent bidding or poor behaviour by agents that breach their code of conduct and/or the ACL
How does a complaint differ from a dispute?
As noted in other Tenancy Factsheets, 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 want an order redressing a breach (such as getting repairs done, getting compensation, or limiting access) then the Tribunal is where you should be going. You can refer to other Tenancy Factsheets 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 Access Canberra 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 an agent, 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.
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.
S8.38 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
Access Canberra has a complaints process that is open to all consumers, including tenants. The Complaints Management Team can be contacted on 132281, there is an IVR that will direct you to Complaints Management directly (Option 1 then Option 5). You can check the website here for information on:
- what you must do before making a complaint,
- frequently asked questions,
- forms and,
- guidelines on how to make a complaint.
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.
Access Canberra 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, issuing a warning, or referral to the Tribunal for formal disciplinary action.
The action that the Access Canberra takes will depend on the nature and severity of the breach, the particular history of the agent/agency involved, and the potential for consumer detriment arising out of the conduct in question. Access Canberra is more likely to act when they have received multiple complaints about the same agency or property manager, so your complaint could make a difference.
Going to the Tribunal before making a complaint
Access Canberra is more likely to act on your complaint if you have written evidence that your agent breached the rules of conduct. Orders from the Tribunal would be persuasive evidence.
So, if you are going to the Tribunal for other orders, you can explain that you want to make a complaint to Access Canberra and you want the Tribunal to address specific questions and include the answers as “findings” in their written orders. The Tribunal won’t do this unless you ask them to—make sure they understand.
Examples of relevant questions are:
- Did the agent access the premises unlawfully and was the landlord ordered to pay compensation for it?
- Did you have to pay the fee that the agent said you had to pay?
- Did you have to do a certain thing (eg: sign a clause, keep paying rent after you moved out, allow extra access) which the agent said you had to do?
- Did the landlord have to do repairs which the agent said they didn’t have to do?