This might seem to be an episode of the “Keystone Cops”, but it isn’t.
Fred Flintstone listed a property. He negotiated successfully the sale of the property with the Buyer’s agent, Barney Rubble.
The price was $322,000.00 and the property was scheduled to close on 27 June 2014. A re-visit was negotiated in the Agreement of Purchase and Sale:
“The Buyer reserves the right to re-visit the property on at least two separate occasions prior to the date of closing at a mutually agreed upon time.”
Barney called Fred to arrange the final walkthrough on 26 June 2014. Fred couldn’t reach the owner.
At approximately 4:36 p.m., Fred sent a text to the owner stating:
“The buyer is doing a final walk-through at [the Property] today is that ok just want to make sure there is a key there”.
Fred also made a call to the Owner’s father, at approximately 7:32 p.m.
Barney contacted Fred to advise that the key was not in the lock box. While Fred and Barney were brainstorming ideas on how to enter the property, the buyer made a unilateral decision to enter the property via the opened kitchen window. Following this, the buyer opened the patio door for Barney to enter.
The Owner’s father came to the property and noticed that there was a van in the driveway and the lights were on in the house. He entered the house to discover that Barney and his clients were there in the Property.
He contacted Fred to inquire why and how Barney and his client entered without a key.
At no time on June 26, 2014, did the Owner provide consent to Fred allowing Barney and his clients to enter.
RECO Discipline Decision
The Panel concluded that there were breaches of the Code of Ethics by both agents, namely, 3 (best interests), 4 (fairness and honesty), 5 (competent service), 39 (unprofessional conduct).
Particulars in respect to Fred Flintstone, the Listing Agent:
1. Failed to treat the Owner fairly, honestly and with integrity when he allowed Barney and his client to enter the property without the Owner’s knowledge or consent, thereby breaching section 3 of the Code of Ethics.
2. Failed to promote and protect the best interests of the Owner by failing to obtain her consent prior to allowing and/or recommending that Barney and his client enter the property, thereby breaching section 4 of the Code of Ethics.
3. Failed to provide conscientious service to his clients and/or failed to demonstrate reasonable knowledge, skill, judgment and competence by allowing and/or recommending Barney to enter the Property without the consent of the Owner, thereby breaching section 5 of the Code of Ethics.
4. Engaged in an act that would reasonably be regarded as disgraceful, dishonourable, unprofessional or unbecoming a registrant by allowing Barney and/or recommending Barney to enter the property without the consent of the Owner and/or without the availability of the keys to the property, thereby breaching section 39 of the Code of Ethics.
Particulars in respect to Barney Rubble, the Buyer’s Agent:
1. Failed to treat his client fairly, honestly and with integrity when he allowed client to enter the Property knowing that there may be an issue with entering the Property as the key was missing from the lock box, thereby breaching section 3 of the Code of Ethics.
2. Failed to promote and protect the best interests of his client by allowing his client to enter the Property without consent of the owner and thereby commit trespassing, thereby breaching section 4 of the Code of Ethics.
3. Failed to provide conscientious service to his client and/or failed to demonstrate reasonable knowledge, skill, judgment and competence by allowing and/or recommending his client to enter the Property without consent and not through a typical entrance, thereby breaching section 5 of the Code of Ethics.
4. Engaged in an act that would reasonably be regarded as disgraceful, dishonourable, unprofessional or unbecoming a registrant by allowing his client and/or himself into the Property via an open window without obtaining the needed consent, thereby breaching section 39 of the Code of Ethics.
On 14 August 2015, Fred received a $7,000.00 fine which he has to pay by or before February 29, 2016.
Barney received a $4,000.00 fine, to be paid by February 29, 2016, and he must take the OREA Law Course.
I am not quite sure why the two agents were treated differently. Fred paid the higher fine but it was Barney who was closest to the action. Why should Barney take a Law Course and not Fred?
I would think that it would be relatively simple and straightforward. You can’t break into somebody else’s house, even if it suits your convenience. The answer for Fred is clear: “No”. “I am sorry, I can’t reach my client”. And, of course: “I have no authorization to permit access”.
This might be taking the Power of Attorney contained in the Listing Agreement to new levels. It’s just for verification, not entry.
There is a Trespass to Property Act in Ontario which includes a $2,000.00 fine. There are also the Breaking and Entering provisions in the Criminal Code. A criminal offence would not be pursued if the trespasser can prove that there was no intention to commit an indictable offence when present. There is also a civil action for trespass which would award damages to the Owner.
So, this is serious stuff. If there is going to be an access problem the day before, then if you are Fred, get a key, get the Owner’s permission in advance, attend the walkthrough. This way everyone will be happy.
If you are Barney, don’t permit your client to enter through a window. Just say “no, …. we’ll comeback later…”. This would be simple enough.
These were slightly more substantial fines. We had been seeing $3,000.00 to $3,500.00 simply for unauthorized access, that is, taking the key out of the lock box without consent.
You might also expect a suspension for a short period of time. That is a permitted penalty but seldom utilized.
Brian Madigan LL.B., Broker