Agent Fails to Discover Parking Pad Legality and Terms of Mutual Driveway
This is an interesting situation. Fred Flintstone took a listing of a property but failed to check the records, failed to check the prior listings, failed to look at the title documents, failed to look at the survey and failed to contact the City.
You can appreciate, that this isn’t good.
The MLS listing information indicated that the Property had a mutual drive, one (1) parking space and the remark:
“Front Pad Parking Application has been submitted to the City”.
The next door neighbours, Barney and Betty Rubble attended an Open House. Having seen and reviewed the feature sheet and the list of features for the Property, they spoke to Fred Flintstone and another member of the “Team” to advise them that the MLS listing information was incorrect regarding the parking representations.
In the response to this advice, Flintstone, or the other member of the “Fred Team”, asserted that there was a monthly revolving right to park in the mutual driveway, which the Rubbles expressly denied.
The discussion between the parties concluded with the member of the Fred Team stating that the listing error would be corrected.
Notwithstanding the objections voiced by the Rubbles, Fred continued to market the Property as having:
· a single parking spot
· with the potential for a second,
· along with the express misrepresentation” “Front parking pad applications [sic] has been submitted to the City”.
The continued efforts of the neighbours (and later the Complainants to RECO) to rectify the misrepresentation in the MLS listing information were not acknowledged by Fred.
The Buyer’s agent was told by Fred that there was one parking spot and “an excellent chance to get a second parking spot”, or words to that effect.
The RECO Discipline Committee found that:
· the Property shares a mutual drive,
· has a complementary right of way with the Rubbles.
· there was no parking space,
· licensed parking spots in the City do not follow the trade of a Property,
· the new owner is required to apply for a transfer of the licence agreement with the City, and
· contrary to the representation in the MLS listing information regarding the potential for an additional parking spot, the City had already rejected the Sellers’ application for a parking pad.
As you will undoubtedly appreciate, this situation is not going in the right direction. Both the neighbours and the Buyer independently complained to RECO.
RECO Discipline Decision
Fred Flintstone acted unprofessionally:
1. In failing to advise his brokerage, Brokerage ABC, the co-operating registrant, Registrant, and the Buyer of the erroring the marketing documents and, therefore, a material fact about the Property. Fred failed to treat the participants in the transaction fairly, honestly and with integrity in violation of s.3 of the Code.
2. In failing to take reasonable steps to inquire into the assertions of the Rubbles regarding a material fact about the Property, Fred falsely represented a material fact about the Property on behalf of the Sellers and, thereby, failed to promote and protect the best interests of his clients in violation of s.4 of the Code.
3. In failing to take reasonable steps to inquire into the assertions of the Rubbles regarding a material fact about the Property, Fred falsely represented a material fact about the property on behalf of the Sellers and, thereby, failed to provide conscientious service to his clients and customers and in so doing failed to demonstrate reasonable knowledge, skill, judgment and competence in providing those services in violation of s.5 of the Code.
4. By issuing opinions about the status of the parking and the potential for a parking pad permit that were contrary to the existing and readily determined facts, Fred failed to demonstrate reasonable knowledge, skill, judgment and competence in providing such opinions, contrary to s.6 (1) of the Code.
5. In failing to take reasonable steps to determine a material fact about the Property and instead relying on the representations of his clients while disregarding the assertions of the Rubbles as to the parking issues, Fred, thereby, acted contrary to s.21 of the Code.
6. On the basis of the foregoing particulars and allegations, Fred knowingly made an inaccurate representation in relation to a trade in real estate, failed to exercise his best efforts to prevent error, misrepresentation or fraud, and knowingly engaged in an act or omission that, in having regard to the circumstances, would be reasonably regarded as disgraceful, dishonourable, unprofessional or unbecoming a registrant in violation of ss.37, 38 and 39 of the Code.
The result was a $10,000.00 fine.
Many times a registrant will have to attend a course to upgrade their skills. In this case, such a remedy was not imposed. The obvious conclusion was that Fred knew what to do, he just failed to do it.
This matter had previously gone to RECO concerning the conduct of the Buyer’s Agent, who was the recipient of a $5,500.00 fine.
If you are interested, you can find that case here:
So, to summarize RECO gets $15,500.00 in fines from the two cases. The next door neighbours get nothing at all, and the Buyer likely gets the value of one parking space and possibility the value of one more, depending upon the evidence at a civil trial.
Note: As a rule, I use fictitious names. The actual case is published on RECO’s website and is available to the public. For educational purposes, the names of the parties really don’t have any bearing. If you need to quote the case, you will have to obtain the proper legal citation.
Brian Madigan LL.B., Broker