Late-night email warning: lawyer caution after Dunedin real estate agent lands in hot water

The agent was found guilty of unsatisfactory conduct. Photo / File

The perils of quickly answering an email at night were pointed to by a lawyer who defended a Dunedin real estate agent found guilty of unsatisfactory conduct over what she told clients one evening.

Ellie Harrison, a senior associate at Wynn Williams, defended Geraldine Hermens of L J Hooker Dunedin in a case before a Real Estate Authority complaints assessment committee.

House buyers complained that Hermens misled them about whether a house contained scrim, about a bedroom which was smaller than stipulated and that the cooktop was an induction unit when it was ceramic.

The committee found the charge about misleading over the scrim was proven.

The buyers wanted to ensure the house they bought did not have scrim and asked Hermens about that via email. She replied saying "there is no scrim in the house".

But after buying the place and moving in, those buyers found that about half the house had scrim linings in the walls, the committee noted.

Harrison said the case illustrated the dangers of responding quickly by email at night - the agent responded to the question about the scrim within 10 minutes.

"The lesson here is one to which many of us can relate: when replying from electronic devices, take the time to check the response thoroughly before hitting send," Harrison said of her client's actions.

"In this case, the purchasers sent an email to the agent one night asking if the vendors were aware of any scrim in the house. Trying to be efficient and helpful, the agent replied straightaway saying there was no scrim in the house. With hindsight, she acknowledges she should have said 'the vendors and I are not aware of any scrim in the house'. It's a fine distinction, but that is the crux of the case," Harrison said of the matter over the Oakland St, Andersons Bay property.

"The purchasers' complaints concerned allegations of unsatisfactory conduct at the most minor end of the scale. The committee's decision upheld only one of those complaints, albeit that it declined to impose any penalty. In our view, the decision not to impose a penalty reflects the purchasers' contribution to the outcome about which they complained and the fact that the agent's unsatisfactory conduct was wholly unintentional and did not result in any loss to the purchasers or any party."

The upheld complaint was over the scrim, a type of wall lining found in houses of the Victorian and Edwardian era, a hessian tacked onto the internal wooden walls of a house with wallpaper pasted over the top.

"In its exposed form, scrim is a fire danger and can present difficulties with insurance, compared to wall linings from the 1940s onwards which have been designed to resist exposure to fire," Harrison said.

"The agent has some years' experience in the industry: she knew the walls were fibreboard and not scrim," Harrison said.

"She replied straightaway to the purchasers saying: "There is no scrim in the house". With hindsight, she should have said: "The vendors and I are unaware of any scrim in the house". That fine distinction is the crux of the matter," Harrison said.

"But unbeknownst to the agent or the vendors, at the time that the purchasers made this inquiry with the agent, the purchasers were in fact aware of scrim in the house themselves," Harrison said.

"They were in receipt of an electrician's report who had identified scrim behind the switchboard. As it turned out, the house had encased scrim behind its fibreboard walls. Of course, the agent could not have known of the encased scrim without doing invasive testing, and there was no reason for that testing to be carried out given that encased scrim does not present an elevated fire risk. The purchasers claimed that leaving scrim behind the fibreboard walls of the house was indicative of poor workmanship which is not accepted by L J Hooker," Harrison said.

The committee noted that it never occurred to the agent that there was scrim behind the wall linings because the wall linings were a hard surface and there was no scrim on the walls.

The committee said of the agent's actions on the scrim: "The consequence of the omission was that the complainants purchased the property when they might not otherwise have done so."

Those people sought a reduction in price due to issues with the house.

The committee found the agent's actions were "a minor breach. A finding of unsatisfactory conduct is sufficient in this case to meet the objectives of the act in determining penalty".