Victorian agent fined $5,000 after disparaging property at rival agent's auction

Eric Cohen of Eric Cohen Real Estate McKinnon has been fined $5,000 after making disparaging comments about a property at an auction held by a rival firm in August 2012.

Following a Victorian Civil and Administrative Tribunal (VCAT) hearing in 2012, tribunal member Dr Rebecca French last month decided that Cohen would be fined the maximum penalty of $5,000 and be ordered to attend ethics classes for comments that he made regarding the condition of a McKinnon home at its auction.

Prior to the sale Cohen had appraised the property, advising the property’s elderly owner, Edith Cooper, that her home was likely to fetch $1.1 million, with a likely rental rate of $600 to $700. After the appraisal the property’s elderly owner, Edith Cooper, and her son David Cooper advised Cohen that they might rent out the McKinnon home rather than selling. According evidence given by David Cooper at the 2012 hearing, Cohen “appeared dejected” at this news.

David Cooper called Cohen a few days later advising him that the property would be rented out, rather than sold. Cohen expressed an interest in being the property manager for the Coopers, but David Cooper told the tribunal that he gave no guarantee that this would eventuate.

In the following weeks, the tribunal heard, both David and Edith Cooper rang Cohen’s office multiple times and visited the office in person to try to engage Cohen as a property manager, but Cohen never returned their calls. As a result, Edith Cooper engaged Claude Mery of Buxton Bentleigh.

Mery also advised Cooper that the property would attract a price of $1.1 million, quoting $550-$600 as a realistic rental rate. After some consultation with her accountants and legal advisors Cooper decided to sell engage Mery to sell her property.

According to David Cooper, he received a call from Cohen,  where the agent “expressed his disappointment in not getting the job and suggested that he would have got the best possible price and that by going with another real estate agent, my mother and I were making a big mistake. Mr Cooper also asked what he had done wrong, however, I just said my mother preferred Buxton Bentleigh.”

Cooper told the tribunal that Cohen concluded the call with “words to the effect of ‘Good luck trying to sell it,’” in a tone which he described as sarcastic and "not friendly", leaving him feeling "uneasy".

At the 2012 hearing, Cohen disputed David Cooper’s version of the events, telling the tribunal that he did return calls from the Coopers. While he acknowledged that the final call between himself and David Cooper described by Cooper did take place, he said that his intention was to solicit  feedback from Cooper, and that he informed him of market conditions and wished him well on the property’s sale.

David Cooper’s wife, Lucia Cooper, told the tribunal in 2012 that at the property’s auction, Cohen approached her as she was standing outside with potential bidders and onlookers. According to Lucia Cooper, Cohen claimed the property was poorly designed and asked if she knew that there was water leaking into the home’s garage. Lucia Cooper told the tribunal that she observed Cohen approaching various other people at the auction, and that his appearance and attire may have lead attendees to believe he was a selling agent for the property, although he did not introduce himself as a real estate agent, or wear a badge. Another witness, Edith Cooper’s neighour, testified to the tribunal that he saw Cohen approaching various attendees, and that after Cohen’s conversation with Lucia Cooper, she stormed off angrily.

However, Cohen claimed that Cooper had struck up a conversation with him, and while he had mentioned structural issues with the home, he did so as an explanation for his comment to her that the property would probably sell to developers. He also said that he had only spoken to other families at the auction that he was already acquainted with.

According to Lucia Cooper, she and Cohen got into an argument at the auction over his alleged disparaging comments, and at one point Cohen asked her neighbour, who had confronted him over his behaviour, if he “wanted to fight”.

Tribunal member Dr Rebecca French found at the 2012 hearing that none of the attending witnesses were truly independent. However, she found that Cohen’s conduct when approaching Lucia Cooper at the auction would “reasonably be regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.”