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Is a real estate agent liable as per the vcat system if it…

Is a real estate...

Is a real estate agent liable as per the vcat system if it knowing falsely advertises an aspect of a property, or are they exempt because they are acting in behalf of the vendor?. Case is a non working fireplace was advertised with an admitted photoshopped lit and fully flamed fire in the fireplace. If the agent is not liable then is the recourse with the vendors via the civil court system?

Lawyer's Assistant: What state/territory are they in? It matters because laws vary by location.

Hello Pearl. Of course - Victoria

Lawyer's Assistant: What steps have they taken so far?

The fireplace needs to be completely demolished and rebuilt. Cost $10,000 to $12,000

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

They are in the process of taking action

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Answered in 5 minutes by:
3/24/2018
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,948
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Verified

Hi, I am Leon, a NSW Solicitor. I am reviewing your question and will reply again in a moment.

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Customer reply replied 4 months ago
Thanks
Customer reply replied 4 months ago
No call thanks

Good Afternoon

Yes the act clearly says they cannot mislead in their advertising.

The following link sets out their responsibilities.

https://www.consumer.vic.gov.au/licensing-and-registration/estate-agents/running-your-business/advertising-and-representations

If they give the impression that it is fully working and it is faulty then you have an action against them.

If you made it known to them that this was a feature that really attracted you to the property and they did not make any attempt to advise you that it was not working you have a claim.

The contract usually has a clause in it that you cannot hold the vendor liable for any representations made if they are not included in the contract and it will also say you accept the state and condition of the property and fittings.

But if the agent has never disclosed it was not working and has mislead you and the advertising is deceptive you have a claim.

Make sure you have a copy of the the advertisement.

If you wish to have a phone call to discuss this in more detail please elect a call or I can send you a request.

I hope this makes sense and is of assistance. If you have found my answer to be helpful, please rate me five stars so I can get paid for my services to you. You rating my work 5 stars allows me to continue to provide a service to those who require it.

I am happy for you to ask further questions on anything you wish more detail on.

Let me know if I have answered your question today.

Regards

Leon

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Customer reply replied 4 months ago
At this time I’m not sure if the condition of the fireplace (working or not) was mentioned in the contract.
It wasn’t made known to the agent before purchase that the fireplace was an attraction for purchase.
I have a copy of the advertising including the beautifully lit fireplace.
The agent (via the receptionist (?) on the front desk) has said (and now trying to backtrack) that they knew it wasn’t working, had disclosed that to other interested parties, but didn’t disclose it to my son and partner (they are the purchasers).
Also - the chimney has since been identified by experts as extremely dangerous and could collapse. Can it be replaced as a matter of safety before any legal action has taken it’s course, which could be months away?

Good Afternoon

You have to look at the contract in detail.

Your conveyancer should have given you advice on it.

That photo can be held to be misleading.

If they were disclosing it they should have done that to all parties or pulled the photo from the advertising.

Did you have a building and pest report undertaken on the house?

The state of the building you cannot hold the agent liable.

This is something that a purchaser should check as they take it as it is. All purchasers should undertake a building and pest report before they enter into a contract.

If you did and it was not picked up by the builder then they may have been negligent.

But the saying buyer beware applies.

The fireplace is different the add holds out that it works and shows it lit and gives the impression of a cosy nice room in winter.

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Customer reply replied 4 months ago
Ok so can you please confirm that what you’re saying is the fireplace was misleading in that it was advertised as working, however the chimney is a totally different matter as it comes under the state of the building and the onus is on the prospective purchaser to undertake an inspection.
What then in legal sense separates the fireplace from the chimney if the faulty chimney is the reason the fireplace doesn’t work, taking into account the advertised photo?

Good Afternoon

What you have described, the advertisement showing the room with the fireplace lit appears ot be misleading and deceptive.

It gives the impression that it is a working fireplace.

You have to separate the 2 issues.

If the fireplace was not sown lit in the photo, you would not be able to do anything. You would be in the same position as with the chimney.

The agent has photos of the property and they show the fireplace working.

Your position is that the advertisement, gives the impression to any prospective purchaser that the house has a working fireplace.

It is misleading and deceptive.

It is all about the agent misleading purchasers into believing that the fireplace works.

Their conduct is what you are suing for. They have mislead you into believing that the fireplace was in working order.

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Customer reply replied 4 months ago
I understand the two issues. However I’m not sure re suing the agent for misleading advertising if the chimney is the fault. I get that we’d be suing for their misleading conduct, however what outcomes can that achieve? And is it a case for VCAT or the civil courts?

Good Afternoon

Can I interest you in a call. It may be easier than trying to put it down in writing.

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Customer reply replied 4 months ago
Just want to say thus far thstyou’re educating me well here. Thinking my responses sound a bit sharp!?
S
Customer reply replied 4 months ago
sorry! I just clicked call me in error. Please ignore! I’d rather chat online

They have mislead you that the chimey works.

To get it to work it will cost $X

If the chimney was a selling point and you paid a premium then you argue that

If you would have paid less had you known that the chimney did not work this is also part of your argument

So you are not out of pocket if you would be claiming that the cost to get the chimney to work should be paid for the agent because of the misleading photo.

I hope this is clearer.

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Customer reply replied 4 months ago
Hi just checking you’re still with me Leon

Good Afternoon

I am here.

I will be logging off in about 10 min and will be back at 7pm sydney time.

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Customer reply replied 4 months ago
Thanks yes clearer.
Is it a case for VCAT or the civil courts?

VCAT can deal with it as it is within its maximum limit which I think is $ 10,000.00 but check this with them. If you wish to calim more than $10,000.00 then the magistrates court is the place to sue.

https://www.vcat.vic.gov.au/get-started/goods-and-services

You will need to get a detailed report on the cost to repair it.

Also you should use a solicitor.

I have to go but will be back if you have anything further,

If there is nothing further please do not forget to rate my work 5 stars so I can be paid and continue providing my service.

Regards

Leon

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Customer reply replied 4 months ago
Please one last question. The agent is saying he’s not liable as he only advertised what the vendors advised. So is it the vendor or agent we sue?
Customer reply replied 4 months ago
Hi Leo. Are you still with me?

Good Evening

To sue the vendors you have to check and see what the contract says.

The fact the vendors lied to the agent, is no reason for him not to be liable. He can joint the vendors for lying to him, he has to make sure that his material is accurate.

I hope this makes sense.

Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,948
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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