Buyer’s Agent Should Double Check Legality of Parking Pad
This particular situation is an interesting one. John listed his property for sale with Fred and Wilma of ABC Brokerage.
They got things muddled up when it came to the parking pad. For whatever reason, they didn’t check it out particularly well (or, at all) and things went from bad to worse.
The Rubbles (Barney and Betty) who lived next door knew all about the mutual driveway and the parking pad. After all, they were the ones who shared the mutual driveway.
Fred and Wilma hosted a “wine and cheese” inviting all the neighbours. Really, they were looking for more listings on the street, they weren’t trying to sell John’s house, but naturally, that would be a bonus.
The MLS Listing
This is some information on the MLS:
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]”.
This information was incorrect, so Barney and Betty told the Listing agents that, at the open house.
In response to this advice, Wilma, asserted that there was a monthly revolving right to park in the mutual driveway, which the Rubbles expressly denied.
Now, at this point, you might need to know that there is no such thing as a “revolving parking spot” in law. That could be a “side deal” between two neighbours, but otherwise there’s no such thing. This is just nonsense talk after the Listing Agents have had too much wine!
In spite of the objections, Fred, Wilma and ABC Brokerage continued to market the Property as having a single parking spot.
However, when you looked at the listing on the MLS®, it was unclear as to whether the representation that:
“Front parking pad applications (sic) has been submitted to the [City]”
was with respect to the one parking spot identified on the MLS® listing or if it referred to a second additional spot.
Here is the crazy part!
As Barney becomes quite insistent about the mutual driveway, and remember he owns part of it, Fred calls the police.
Not that the police are going to do anything about it, but Fred seems to live in his own world so, I suppose he thought calling the police was a smart thing to do.
The True Facts About the Driveway and Parking
The Property:
shares a mutual drive,
has a complementary right of way with the neighbours, 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 a licence agreement.
And, by the way, the Buyer asserts that, 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.
Six prior MLS® listings for the Property, including three by ABC Brokerage in 1996, 2001 and 2002, all indicate a mutual drive and no parking spot.
The Buyer’s agent, Jeff Frey relied upon the MLS® listing as marketed by Fred, who told him that there was:
“an excellent chance to obtain approval for the parking spot”
Following the completion of the transaction, on or about September 5, 2012, the Buyer was advised by the City:
contrary to the representations of Fred and Wilma, and the marketing documents published for the sale of the Property, that his new home had no parking spots and no potential for a city approved parking pad.
So, that was THAT.
SUMMARY OF AGREEMENTS
It is agreed that Jeff Frey acted unprofessionally:
1. In failing to take reasonable steps to inquire into past listings of the Property regarding a material fact about the property, thereby failed to promote and protect the best interests of his client in violation of s. 4 of the Code.
2. In failing to take reasonable steps to inquire into past listings of the Property regarding a material fact about the property, he thereby failed to provide conscientious service to his client 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.
3. In failing to take reasonable steps to inquire into past listings of the property regarding a material fact about the property and instead relying on the representations of as to the parking issue, he thereby acted contrary to s. 21 of the Code.
4. On the basis of the foregoing particulars and allegations, Frey failed to exercise his best efforts to prevent error or misrepresentation. Frey’s omission in regard to the circumstances, would be reasonably regarded as unprofessional or unbecoming a registrant in violation of ss. 38 and 39 of the Code.
It is agreed that Frey has breached the following sections of the Code of Ethics:
4 best interests
5 competent service
21 failure to discover material facts
38 prevent error, misrepresentation and fraud
39 unprofessional conduct
A financial penalty in the amount of $5,500.00 was imposed.
COMMENT
So, that was certainly a mess. Now, this case involved the Buyer’s rep, Jeff Frey. Don’t forget that Fred and Wilma are not “off the hook”. This was the complaint against Jeff Frey by both the neighbours and their own client, the Buyer, John.
Jeff was to investigate, determine and verify the material facts. It was not his job to listen to Fred and accept at face value everything that Fred said. As it turned out, Fred was a “crazy” and everything on the MLS was wrong about the parking pad. The parking arrangements in terms of revolving months was silly, made-up nonsense.
A simple call to the City would have cleared this up.
A condition could have been placed in the Offer to provide time to check things out. But, there was nothing! No inquiry at all took place.
Then, there were 6 prior listings, but Jeff failed to check any of them. They were accessible from his computer, he didn’t even have to leave home. Additionally, there were GeoWarehouse (title) and MPAC (assessment) searches available. Again, those searches could be conducted over the internet, by simply using his own Board access account (like TREB). Both of these searches were just a few clicks away, and both would have been free.
The issue of the Seller having submitted an application, that was untrue, and the City would have confirmed that with a phone call.
In conclusion, Jeff took the lazy way out. He believed Fred and Wilma. He failed to do his own “due diligence”. Jeff is charged with the responsibility to inquire and he actively chose to do nothing. That’s why he was fined. Further, he could be sued because the “property without a parking pad” is not worth what a “property with a parking pad” is worth.
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
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