Real Estate Council of Ontario DISCIPLINE DECISION

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1 Real Estate Council of Ontario DISCIPLINE DECISION IN THE MATTER OF A DISCIPLINE HEARING HELD PURSUANT TO THE REAL ESTATE AND BUSINESS BROKERS ACT, 2002, S.O. 2002, c. 30, Sch. C BETWEEN: REGISTRAR UNDER THE REAL ESTATE AND BUSINESS BROKERS ACT, AND- SYED FATMI Subject to Rule 4.02 of the Discipline and Appeals Committee Rules of Practice (REBBA 2002), I, the Chair of the Discipline Committee (REBBA 2002) have reviewed and considered the Agreed Statement of Facts and Recommended Penalty together with the Waiver of Hearing submitted by the Parties to this proceeding and provide the following Order: DATE OF DECISION: January 19, 2011 FINDINGS: In violation of Sections 3, 4, 17, 28(1), 37(1), 38, 39 and 40 of the REBBA 2002 Code of Ethics. ORDER: Fine of $20, payable to RECO within 365 days of sending this decision. Successful completion of the three courses listed below and to provide RECO with confirmation of successful completion within 365 days of sending this decision: 1. REIC 2600 Ethics and Business Practice 2. The Real Estate Transaction General and Residential Real Estate Transaction 3. Land, Structure and Real Estate Trading WRITTEN REASONS: REASONS FOR DECISION Page 1 of 9

2 INTRODUCTION This matter proceeded on the basis of an Agreed Statement of Facts and Penalty and Waiver of Hearing, pursuant to Rule 4.02 of the Rules of Practice (REBBA 2002). The Agreed Statement of Facts and Penalty read: AGREED STATEMENT OF FACTS AND PENALTY 1. Mr. Fatmi is a salesperson registered under the Act. At all material times, Mr. Fatmi was employed by and carried on business on behalf of Brokerage A in City A. 2. The Complainant, Seller A is a consumer (the Complainant ). 3. The Complainant arrived in Country A from Country B in 2004, and between 2005 and 2006, the Complainant decided she would like to purchase investment properties. At this time, the Complainant was introduced to Mr. Fatmi, a registered salesperson. 4. On or about February 13, 2007, Mr. Fatmi represented the Complainant in the purchase of two condominium units at 1-A Street. These were units #A1 and #A2 1-A Street (the Properties ). Unit #A1 was purchased at $302, Mr. Fatmi listed the Properties at different times for the Complainant and obtained tenants for the Properties. 6. Over the years, the Complainant gained Mr. Fatmi s trust and the Complainant and Mr. Fatmi became very close friends. Mr. Fatmi also represented the Complainant in the purchase of her own residence that was located four doors away from Mr. Fatmi s personal residence. 7. Sometime in 2008, the Complainant considered selling the Properties. At this time Mr. Fatmi asked the Complainant to leave the Properties vacant. For a few months the Properties did not sell so Mr. Fatmi obtained new tenants and took the Properties off the market. 8. In or about February 2009, the Complainant once again contacted Mr. Fatmi and asked him for an approximate market value of the Properties as she was contemplating selling one of them. Mr. Fatmi drew a dismal picture of the real estate market, and suggested that the Properties would not sell at a very good price at this time. Of the two, the Complainant had hoped to sell unit #A2. 9. Shortly after the inquiry above, Mr. Fatmi contacted the Complainant and advised the Complainant that he had a buyer for unit #A1 and that the buyer was willing to pay $393,000 for the unit. 10. The Complainant s intention was to sell unit #A2. The Complainant advised Mr. Fatmi to hold as she considered this price, and made a decision on whether or not she wished to sell unit #A1. Page 2 of 9

3 11. Shortly thereafter, Mr. Fatmi once again contacted the Complainant and advised her that unit #A1 had already sold and a closing date was already set. The Complainant voiced her concerns that she had not decided if she wished to sell at this time. Mr. Fatmi advised that it was too late as the unit had already sold, and the buyer could sue her if she did not follow through with the trade. The Complainant questioned how unit #A1 sold when she had not seen or signed any documents let alone an Agreement of Purchase and Sale ( Offer ). 12. The details of the Offer were as follows: a. The Seller Complainant; b. The Buyer Buyer A1 and Buyer A2; c. Offered price $393,100; d. Deposit - $5000 payable to the vendor s lawyer; e. Offer date February 18, 2009; f. Irrevocable by buyer February 20, 2009 at 8 p.m.; g. Offer Accepted February 19, 2009; and h. Completion date March 6, There was no indication on the Offer as to the identity of the vendor s lawyers who was to receive the deposit. Mr. Fatmi advised the Complainant that a lawyer by the name of Lawyer A would be representing her during the trade of the property. 14. The address of service on the signage page of the acknowledgement section of the Offer was 1-A Street, Unit #A3. Unit #A3 1-A Street is a unit owned by Mr. Fatmi. 15. The Offer was conditional on a number of things, including the following: a. Financing within five days of acceptance of the Offer; b. the seller providing all condominium documents to the buyer within 10 days of acceptance of the Offer; and c. Buyer s lawyers reviewing the condominium documents within 5 days of receipt of same. 16. The investigations disclosed that Mr. Fatmi neither listed unit #A1 on the MLS system nor submitted the trade to Brokerage A, the brokerage that employed Mr. Fatmi. 17. The investigations further suggest that this transaction was entered into without a listing agreement and a determination of the terms of any agency relationship between Mr. Fatmi and the Complainant. 18. On reviewing the Offer, although the transaction was commenced without her consent, the Complainant decided to complete the transaction. At about this time, Mr. Fatmi suggested that: a. the fair market value for unit #A1 would be $335,000; and b. that the $58,100 above and beyond $335,000 should be received by him. 19. In earlier transactions, the Complainant had paid Mr. Fatmi 1% commission and it was also the understanding of the Complainant that Mr. Fatmi is paid by his brokerage, or the lawyer involved in the trade. For these reasons, the Complainant Page 3 of 9

4 did not pay much attention or take seriously the suggestion by Mr. Fatmi of $58,100 from her in paragraph 18 above. 20. The Complainant was not given a copy of the Offer, and it was not until she initiated her complaint that she was advised by another lawyer to obtain a copy of the Offer from the lawyer who had represented her in the trade. 21. The transaction concluded on March 6, 2009 as scheduled. 22. Following the conclusion of the transaction, Mr. Fatmi began calling the Complainant asking for the $58,100 from her. During these calls Mr. Fatmi continued to underscore the fact that he had inflated the price from $335,000 to $393,100, and that the difference was owing to him. The Complainant ignored these requests and left for Country B for a week. 23. Upon her return, from Country B, the Complainant received a cheque from the sale of the unit in the amount of $166, Mr. Fatmi continued to call the Complainant repeatedly up to the extent that the Complainant on occasion refused to answer her phone. 24. Mr. Fatmi then began to come to the Complainant s house and ask for the funds. 25. On or about March 12, 2009 Mr. Fatmi and his relative, Individual A came to the Complainant s home and offered to drive the Complainant to the Bank to deposit the proceeds of the transaction of unit #A Although the Complainant banked with the Financial Institution 1, Mr. Fatmi asked the Complainant to open up an account at Mr. Fatmi s bank, the Financial Institution 2 at 1-B Street. According to Mr. Fatmi, the cheque would clear faster there. The Complainant complied, and on or about March 12, 2009, the Complainant opened account no. ####/####### at the Financial Institution 2 and deposited the cheque therein. 27. On or about March 13, 2009 Mr. Fatmi called the Complainant and instructed the Complainant to call the Financial Institution 2 to find out if the cheque had cleared. The Complainant did this and confirmed with Mr. Fatmi that the cheque had cleared. 28. On or about March 13, 2009, Mr. Fatmi and Individual A came to the Complainant s home where Mr. Fatmi explained that he needed the $58, to pay someone he owed money. He advised that if he did not pay this money he stood to lose his real estate licence. 29. The Complainant advised Mr. Fatmi that as a single mother of three, she could not afford to lend Mr. Fatmi such a large sum of money. 30. The Complainant was driven to the Financial Institution 2 at 1-B Street where Mr. Fatmi asked the Complainant to transfer $58,100 to his relative s account; No. ####- #######. 31. Some months later, in the company of a relative, the Complainant confronted Mr. Fatmi regarding the $58,100 he had taken on March 13, The Complainant Page 4 of 9

5 advised Mr. Fatmi that she needed her money back otherwise she would lodge a complaint regarding Mr. Fatmi s actions with the Real Estate Council of Ontario. 32. Eventually, however, Mr. Fatmi agreed to pay back the money, but asked for six months to begin payments. Mr. Fatmi also agreed to pay $4, in rent to the new owner of unit #A1. Despite this undertaking, Mr. Fatmi did not pay the new owner the outstanding rent payments, nor did he make payments to the Complainant for the $58, The Complainant has since been sued by the new owner of unit #A1 for the outstanding rent owed to him by the tenants, the amount Mr. Fatmi previously undertook to pay in paragraph 32 above. 34. On or about March 4, 2010 Mr. Fatmi was interviewed by RECO Investigator, an investigator with RECO assigned to this matter (the March 4, 2010 Interview ). During the March 4, 2010 Interview, Mr. Fatmi produced a copy of a bank draft payable to one Individual B, dated March 14, 2009 for the amount of $48,000 purchased by Individual A (the March 14, 2009 Bank Draft ). On the March 14, 2009 Bank Draft was a hand written notation that read: On behalf of Complainant, received by Individual B 35. The March 14, 2009 Bank Draft was also purportedly signed by Individual B. Individual B s business card was also copied onto the March 14, 2009 Bank Draft. 36. At the March 4, 2010 Interview, Mr. Fatmi advised the RECO Investigator, among other things that: a. The Complainant owed this money to Individual B and that the Complainant asked Mr. Fatmi to deliver this money to Individual B as the Complainant was going to Country B: b. The $10,100 left over from the $58,100 received from the Complainant on March 12, 2009 was owed by the Complainant to Individual A for prior loans; and c. He had no involvement in this trade, and that the Complainant had sold unit #A1 privately. 37. On or about March 10, 2010, the RECO Investigator interviewed Individual B regarding the March 14, 2009 Bank Draft (the March 10, 2010 Interview ). At the March 10, 2010 Interview, Individual B stated among other things that: a. He neither knew nor done any business with the Complainant; b. He knew Mr. Fatmi for at least six years and they had referred business to each other in the course of those years; c. That the March 14, 2009 Bank Draft came from Mr. Fatmi for part of money Mr. Fatmi owed him for different business referrals; d. Mr. Fatmi owed Individual B approximately $68, and the March 14, 2009 Bank Draft came from Mr. Fatmi for part of the money Mr. Fatmi owed him for different business referrals; e. The March 14, 2009 Bank Draft given to the RECO Investigator had been altered by inserting the words on behalf of Complainant and by printing his name Individual B below his signature and; Page 5 of 9

6 f. Mr. Fatmi had come to Individual B s office and asked Individual B to support his position stating that the March 14, 2009 Bank Draft was for moneys owed by the Complainant to Individual B from Country C. 38. On or about March 10, 2010, the RECO Investigator conducted a telephone interview with one Individual C. Individual C had the following to say regarding his knowledge about the sale of unit #A1: a. He knew and he was a friend of Buyer A2, the buyer of unit #A1; b. He personally owned a number of units at 1-A Street. One day he saw a for sale advertisement on the bulletin board for unit #A1. The for sale advertisement had the business card of Mr. Fatmi copied on it; c. He gave the for sale advertisement to Buyer A2 and asked Buyer A2 to speak directly to Mr. Fatmi whom he had known personally and had also done business with; d. Buyer A2 decided to buy the property and asked him for the use of his office for purposes of faxing an offer to Mr. Fatmi; e. Mr. Fatmi sent the offer from his home to Individual C s office. Buyer A2 and his wife signed the offer and faxed it back to Mr. Fatmi from Individual C s office. This is how they normally dealt with Mr. Fatmi in real estate matters; and f. Mr. Fatmi had come into their office and advised him and Individual B that Mr. Fatmi was being sued for $58,100. Mr. Fatmi asked Individual C and Individual B to support his position that the $48,000 in the March 14, 2009 Bank Draft was in relation to money owed by the Complainant to Individual B. 39. The RECO Investigator also conducted an interview with Buyer A2, the buyer of unit #A1 1-A Street. At this meeting, Buyer A2 among other things confirmed the statement of Individual C in paragraph 38 above and stated the following: a. A friend named Individual C had brought him a flyer advertising unit #A1. On this flyer was a copy of Mr. Fatmi s business card; b. He contacted Mr. Fatmi who proceeded to arrange a showing of unit #A1; c. Mr. Fatmi advised them that unit #A1 was tenanted until July 2009 after which they could take possession; d. Mr. Fatmi advised him that the price of $393, was fair price. When they contacted Individual C who also owned a unit at 1-A Street, Individual C confirmed that he had paid close to the same for his own unit. He therefore felt that $393, was indeed a fair price; e. He instructed Mr. Fatmi to draft an offer which Mr. Fatmi did; f. On or about February 18, 2009, as per the arrangement, Mr. Fatmi faxed the offer to Individual C s where upon Buyer A2 and his wife signed it and faxed the offer to Mr. Fatmi; g. He arranged and subsequently met Mr. Fatmi at the offices of Brokerage A in City A. At this meeting they discussed the closing of the transaction and issues related to the tenants and the rent. h. At closing, Mr. Fatmi provided him with cheques payable by the seller. Mr. Fatmi advised him that this was better as there would be no need to enter into a new lease with the tenants; i. The cheques referred to in (h) above were returned with insufficient funds. When he tried to obtain information about the seller from Mr. Page 6 of 9

7 Fatmi, Mr. Fatmi refused to provide the information, leading to the filing of a small claims suit against the seller. 40. When the RECO Investigator contacted Brokerage A, the RECO Investigator was advised that although Mr. Fatmi at all material times was an employee of Brokerage A, the sale of unit #A1 was neither submitted nor reported to Brokerage A by Mr. Fatmi. SUMMARY OF AGREEMENT It is agreed that Mr. Fatmi acted unprofessionally when he: 1. Was involved in this trade, representing the seller and the buyer without entering into neither a listing agreement nor a buyer agency agreement with the parties to the trade; 2. Represented both parties and yet attempted to portray the transaction as a private sale; 3. Failed to report the trade to his brokerage; 4. Sold the property of the Complainant without instructions from the Complainant; 5. Received $58,100 from the Complainant by improper means; 6. Changed the March 14, 2009 Bank Draft to suggest that the $48,000 he paid to Individual B was a payment on behalf of the Complainant for a debt owed by the Complainant when in fact he was paying his own debts to Individual B; 7. He did not furnish a copy of the Agreement of Purchase and Sale to the Complainant. Mr. Fatmi therefore breached the following sections of Regulation 580/05: Fairness, honesty, etc. 3. A registrant shall treat every person the registrant deals with in the course of a trade in real estate fairly, honestly and with integrity. Best interests 4. A registrant shall promote and protect the best interests of the registrant s clients. Nature of relationship 17. If a registrant represents or provides services to more than one buyer or seller in respect of the same trade in real estate, the registrant shall, in writing, at the earliest practicable opportunity and before any offer is made, inform all buyers and sellers involved in that trade of the nature of the registrant s relationship to each buyer and seller. Copies of agreements 28.(1) If a registrant represents a client who enters into a written agreement that deals with the conveyance of an interest in real estate, the registrant shall use the registrant s best efforts to ensure that all parties to the agreement receive a copy of the agreement at the earliest practicable opportunity. Inaccurate representations 37.(1) A registrant shall not knowingly make an inaccurate representation in respect of a trade in real estate. Page 7 of 9

8 Error, misrepresentation, fraud, etc. 38. A registrant shall use the registrant s best efforts to prevent error, misrepresentation, fraud or any unethical practice in respect of a trade in real estate. Unprofessional conduct 39. A registrant shall not, in the course of trading in real estate, engage in any act or omission that, having regard to all of the circumstances, would reasonably be regarded as disgraceful, dishonourable, unprofessional or unbecoming a registrant. Abuse and harassment 40. A registrant shall not abuse or harass any person in the course of trading in real estate. JOINT SUBMISSION AS PENALTY: 1) Syed Fatmi be ordered to pay a penalty of $20, within 365 days from the date of the Decision of the Discipline Committee. 2) In addition to the above penalty, Mr. Fatmi must enroll and successfully complete the three courses listed below within 365 days of the date of the Decision of the Discipline Committee. a) REIC 2600 Ethics and Business Practice b) The Real Estate Transaction General and Residential Real Estate Transaction c) Land, Structure and Real Estate Trading By initials below, I, Syed Fatmi acknowledge that I have read and understand the penalty outlined herein and agree to the said terms and/or conditions. [Respondent s Initials] By initials below, I, Syed Fatmi, agree, understand, acknowledge and consent to waive the requirements for a hearing and to request an Order from the Chair of the Discipline Committee that includes this Agreed Statement of Facts and Penalty as a final settlement of this matter. [Respondent s Initials] By initials below, I, Syed Fatmi, acknowledge that I exercised by right and was represented by Counsel or agent in this matter. [Respondent s Initials] By signature below the Parties agree, acknowledge, understand and consent to the final settlement of this matter by way of this Agreed Statement of Facts and Penalty. [The Agreed Statement was duly signed by the Parties.] DECISION OF THE CHAIR Having reviewed and considered the Agreed Statement of Facts, the Chair of the Discipline Committee (REBBA 2002) concluded that the Respondent breached Sections Page 8 of 9

9 3, 4, 17, 28(1), 37(1), 38, 39 and 40 of the REBBA 2002 Code of Ethics. The Chair of the Discipline Committee (REBBA 2002) is also in agreement with the joint submission of the Parties as to penalty and accordingly makes the following order: Syed Fatmi is Ordered: 1) Fine of $20, within 365 days of sending this Discipline Decision. 2) Successful completion of the three courses listed below and to provide RECO with confirmation of successful completion within 365 days of sending this Discipline Decision: a) REIC 2600 Ethics and Business Practice; b) The Real Estate Transaction General and Residential Real Estate Transaction; and c) Land, Structure and Real Estate Trading. Page 9 of 9

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