Disclaimer: These comments are the writer’s own and do not necessarily reflect the current opinions and policies of the Real Estate Institute of Western Australia.
In the process of selling real estate the Agent is normally acting for and on behalf of the seller and is obliged under an industry Code of Conduct to follow the sellers’ instructions unless it is unlawful or unethical to do so. When acting for the seller, the agent is also obliged under the same Code to be “fair to all other parties” which includes the buyer.
But what does “being fair” really mean in the context of a property transaction? The answer to this question has several shades of grey but certainly, the agent is obliged to disclose any “material fact” about a property prior to a contract to buy being formed. Material facts are loosely defined as being bits of information that may cause a buying decision to alter its course. This is tricky as what might be considered unimportant to one buyer may be of critical importance to another.
Being fair includes answering questions honestly and providing general advice but in my opinion does not extend to suggesting which conditions a buyer may want to include in an offer to purchase. It is in the seller’s interest to receive an offer with as few conditions as possible, therefore an agent who suggests to a buyer they ought to include, for example, a building inspection clause might be acting against his or her legal obligations.
Agents approach this matter differently. Many will suggest a series of standard conditions that a buyer should include with their offer and whilst, this may be outside the agent’s mandate, it is common and an industry accepted approach especially when dealing with inexperienced buyers. Conversely, some agents will simply ask the question, “Do you wish to include any other conditions with your offer?” and leave it at that.
Either way, buyers are advised to be well prepared before making an offer to purchase. You ought not assume the Agent is there to provide guidance as to what conditions might suit your needs. Certainly, asking the agent pertinent questions about the property’s age and condition and if the Seller has, for example, undertaken any improvements during their tenure ought to receive an honest answer. Most importantly, predetermine what special conditions will suit your individual needs and ensure they are drafted in a manner that provides the contractual protection you are seeking.
If Immediately after settlement, should you find that not all is as it should be, a buyer typically has only 10 business days to properly notify the seller’s representatives advising of an item that’s not as the buyer had expected. For example, a dishwasher that was expected to be in sound working order upon settlement is not working at all.
by Hayden Groves
REIA Deputy President