Melbourne real estate agents not underquoting

Homes selling for more than their reserve and quoted price at auction does occur – in fact, it is what most vendors hope for – but it cannot always be described as underquoting.

The legal definition of underquoting is quite different, and those who seek to point out instances of alleged unlawful activity should take the time to understand the law first.

The Australian Consumer Law requires that all business people – including real estate agents – not engage in conduct that misleads or deceives or is likely to do so.

This general statutory obligation is allied to specific requirements imposed on Victorian estate agents by the Estate Agents Act to not over-quote to sellers or under-quote to buyers the estimate selling price of properties they are employed to sell. The act also makes it clear what is meant by the term “estimated selling price”, and this is critical information for all those who comment publicly on this matter.

The estimated selling price is “the amount the agent believes, on the basis of his or her experience, skills and knowledge, that a willing but not anxious buyer would pay” for the property in question. The estimated selling price can be a single figure or a price range.

If a price range is used, the agent must believe the estimated selling price is likely to fall within it. The range cannot be more than 10% of the amount of its lower limit. An estate agent must provide a vendor with the estimated selling price and include it in the sale authority the vendor signs.

The act goes further. It prohibits an estate agent making a statement in marketing material, advertisements, or even when talking to people, in which he or she indicates the selling price is less than the estimated single figure selling price or in the case of a price range, is less than the lower end of the range. For example: if the agent has provided an estimated selling price to the vendor of $500,000 to $550,000 he or she cannot advertise the property using a range of $490,000 to $530,000.

In practical terms, this means an agent can’t use a quoted price that is below what he or she believes (as expressed by the estimated selling price given to the vendor) the home will sell for.

The Australian Consumer Law’s prohibition on misleading and deceptive conduct obliges an estate agent to keep an advertised estimated selling price or price range under review during a sale campaign and to align it with a vendor’s actual selling price requirements, as may be necessary.

If during a campaign an offer or enquiry is received at a price above single figure estimated selling price or above the lower limit or upper limit of a price range an estate agent is advertising, and the vendor indicates he or she want something more, the estimated single figure selling price or price range as advertised must be adjusted in line with the vendor’s current expectations.

For example: if the price range is advertised at $500,000 to $550,000 and an enquiry is received at $510,000 in response to which the vendor indicates he requires an offer of at least $520,000 before he will consider selling, the range will have to be adjusted so the lower limit is advertised as  $520,000, to avoid misleading or deceiving the public about the selling price.

The act also requires that the real estate agent provide proof to the director of Consumer Affairs about how they arrived at the estimated selling price, if the director requests it

In drafting this law, the Victorian Parliament made an effort to be very clear that the estimated selling price and the vendor’s reserve or asking price do not need to be the same – the agent has his or her view about what the home may sell for, and that can be totally different from what the vendor wants. And this, of course, can be totally different to what the market is prepared to pay.

As a result, it is impossible for commentators to conduct or provide “research” about the extent of “underquoting”, because they do not know what estimated selling price the agent has provided to the vendor. As the act explicitly says that ”nothing …. requires the estimated selling price and the seller's reserve price to be the same amount”, commentators also can’t prove underquoting by comparing the sale price with the reserve.

Maybe all that sort of “research” can prove is that the market sets the selling price, not the advertisement.

Finally, it’s worth reminding those alleging underquoting that there is one agency that does know what the extent of underquoting actually is: Consumer Affairs Victoria. It was recently reported (AFR 27/10/12) that CAV had received 15 complaints about underquoting in 2011–12. Over the same time there were around 70,000 home sales in Melbourne alone.

A cursory glance at the Consumer Affairs website shows that in the past 12 months there have been no instances of real estate agents being required to sign enforceable undertakings because they underquoted, and only two court actions against agents in which they were found guilty of underquoting.

This shows that while homes may sell for more than quoted or expected, Victorian real estate agents do have an excellent record of compliance with the law against underquoting.

Robert Larocca is policy and public affairs manager at the Real Estate Institute of Victoria.