| March 15, 2016
We’d like to interrupt our regularly scheduled Fraud Prevention Month blog posts to talk a bit about buyer beware. That’s right caveat emptor.
As you may guess, this has been prompted by a recent CBC news story about the misrepresentation of a property size in a listing.
While investigation files are confidential, as explained in the news story, both the listing agent and the buyer’s agent were disciplined by RECA. And while some may not agree with the discipline, there are guidelines and principles that we need to follow when disciplining. There is only so much RECA can do when disciplining industry professionals for contraventions of the Real Estate Act or the Real Estate Act Rules. You can also view two years of disciplinary history for industry professionals on reca.ca.
But this is also a good time to talk about standards generally, the role of real estate professionals and the role of consumers, and what we mean when we say buyer beware.
Buyer beware does not mean consumers are on their own, climbing onto roofs to check the age of shingles. It doesn’t mean that consumers need to be experts in electrical panels and it certainly doesn’t mean that consumers are all alone in the wild west of real estate.
Black’s Law Dictionary defines caveat emptor as “let the buyer take care.” It’s not that a seller or a seller’s representative doesn’t need to do their own due diligence to ensure they’re not mispresenting something about the item being sold, but rather that if it’s that important to a buyer that certain qualities are met – they may need to do some due diligence of their own.
Broadly speaking, buyer beware means that buyers and their representatives need to bear some responsibility for making sure any home or property they are purchasing meets their needs. When you hire a licensed real estate professional to represent you and your interests in a real estate purchase, make sure you talk to that professional about what you’re looking for in a home, what’s important to you, what your needs and your wants are. Real estate professionals are not mind-readers and the best way to ensure they know what’s important to you is for you to tell them.
Imagine a consumer hiring a real estate professional to represent them as they search for a new home. They make it abundantly clear to their real estate professional from day 1 how important it is to them to buy a property that is at least 1,800 square feet of livable space. The reason they want that square footage is irrelevant; they’ve made it clear that any home they buy needs to be at least 1,800 square feet. Their real estate representative takes them to view a home that is advertised as being 1,900 square feet.
Because the buyer, in this case, made it clear with their real estate professional that 1,800 square feet of space was of the utmost importance to them, the buyer’s real estate professional needs to do appropriate due diligence to ensure the size of the property. If the real estate professional is unable to verify the size for whatever reason, he or she needs it to make that clear to the buyer—preferably in writing—and the buyer needs to consider what steps he or she will take to satisfy themselves that the property is the “right” size.
Misrepresentation of size is not acceptable. The recent CBC story also mentioned there have been a substantial number of complaints about misrepresented condominium sizes in Edmonton. What the story didn’t say is that as of the end of November 2015, RECA had issued discipline in 191 matters relating to the misrepresentation of registered condominium sizes. Of those 191 matters, some of them encompass more than one complaint (i.e. one piece of discipline can resolve multiple complaints if the complaints are about the same individual; we don’t need to issue separate pieces of discipline). Other condominium registered size complaints are still working their way through our disciplinary processes.
We don’t want consumers walking away from these stories with the belief that misrepresentation is okay (it isn’t) or that RECA doesn’t do anything about it (we do). But we do want consumers to know how important it is to have these conversations with their real estate representatives and make their requirements known.
Equally important is the need for real estate professionals to remember their obligations to clients. Use your best efforts to find a property that meets their needs and take reasonable steps to discover facts about any property on which a buyer is considering making an offer.