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, 2002 - AND- ALLAN SHEPHEARD 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: February 25, 2013 FINDINGS: ORDER: In violation of Sections 3, 4, 5, 6(1), 35, 38 and 39 of the REBBA 2002 Code of Ethics. Fine of $20,000.00 payable to RECO on or before February 7, 2014. WRITTEN REASONS: REASONS FOR DECISION 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. Shepheard is a member of the Real Estate Council of Ontario, ( RECO ) and is registered as a salesperson under the Act.
2. From June 2005 to January 15, 2009, Shepheard was employed by Brokerage A, a brokerage also registered under the Act. 3. On January 15, 2009, Shepheard s registration was transferred to Brokerage B, a brokerage also registered under the Act. 1 ST LISTING 4. In 2008 the Seller entered into a Listing Agreement with Brokerage A, and Shepheard as its sales representative, to list for sale the residential property located at the municipal address of 1-Street (the Property ) for $239,900.00 ( First Listing ). FIRST OFFER 5. On or about December 18, 2008, the Seller agreed to sell the Property to the First Buyer for $215,000.00 ( First Agreement ). The First Agreement was conditional until December 31, 2008, on inter alia the satisfactory inspection of the Property. 6. On or about December 23, 2008, and because of the discovery of structural problems with the Property s foundation, the First Buyer was unable to secure a satisfactory inspection of the Property. As such, the First Agreement was terminated. AMENDMENT 7. On or about January 5, 2009, an Amendment of Listing Agreement was executed, reducing the list-price of the Property from $239,900.00 to $224,900.00. 2 ND LISTING 8. On or about January 15, 2009, a Cancellation of Listing Agreement form was signed by the Seller terminating the First Listing ( Cancellation ). 9. On or about January 15, 2009, the Seller entered into a second Listing Agreement to list the Property for Sale, this time with Brokerage B and Shepheard as its sales representative ( Second Listing ). The Property was listed for $224,900.00. In consideration for listing the Property the Seller agreed to pay Brokerage B 5% of the sale price of the Property should it sell during the currency of the Second Listing or 60 days after its expiry. 10. On or about January 29, 2009, the listing price of the Property was again reduced, this time to $219,900.00. 11. On or about February 3, 2009, a Foundation Estimator with the Company provided Shepheard with a quote for the remediation of the Property s structural problems mentioned in paragraph six (6) above. The quote from the Company estimated said work to the Property s foundation would cost between $16,000.00 and $24,000.00. SPIS 12. On or about February 7, 2009, the Seller completed a Seller Property Information Statement ( SPIS ) on which the following question was answered in the negative: Are you aware of any structural problems? This was despite the fact that the Seller and Shepheard were aware of problems with the Property s foundation.
SECOND OFFER & AGREEMENT 13. On or about February 6, 2009, the Second Buyer made an offer to purchase the Property for $205,000.00 ( Second Offer ). While the Second Offer was signed back by the Seller at $211,500.00 and remained unexecuted, it appears the parties treated it as an agreement ( Second Agreement ). The Second Agreement was conditional on inter alia a satisfactory inspection of the Property. 14. Schedule B to the Second Agreement called for $25,000.00 to be transferred to the Second Buyer s solicitor, funds which were to be used for the sole purpose of remediating the Property s foundation. According to the Schedule B this work was to be completed by the Company, and any and all remaining funds [were] to be returned to the Seller after the successful completion of the repairs. 15. On or about February 19, 2009, the Second Agreement was terminated. THIRD AGREEMENT 16. On or about February 23, 2009, the Seller agreed to sell the Property to the Third Buyers for $210,000.00 ( Third Agreement ). The Third Agreement was conditional on inter alia a satisfactory inspection of the Property. 17. Schedule A to the Third Agreement called for the Seller to deliver to the Third Buyers a copy of the SPIS with complete and accurate answers. 18. On or about February 26, 2009, a Mutual Release was signed by the Third Buyers terminating the Third Agreement. The Mutual Release, however, wasn t signed by the Seller until March 3, 2009. FOURTH AGREEMENT 19. With three failed offers the Seller began contemplating renting the Property out. On the advice of Shepheard, however, the Seller was discouraged from doing so. Shepheard then proposed to purchase the Property in his relative s name. 20. On or about February 27, 2009, the Fourth Buyer signed a Registrant s Statement as Buyer disclosing the fact that she was a relative to Shepheard. 21. On or about February 27, 2009, and before the Mutual Release to the Third Agreement had been signed by the Seller, the Seller agreed to sell the Property to the Fourth Buyer for $215,000.00 ( Fourth Agreement ). The Fourth Agreement provided for no deposit, included a completion date of September 1, 2009, and included a Schedule A which: a) contained a collateral agreement wherein, commending April 1, 2009, the Fourth Buyer would rent the Property from the Seller and pay the Seller rent in the amount of $1,000 per month until September 1, 2009, the completion date provided for in the Fourth Agreement; b) provided that on September 1, 2009, the Property would be transferred to the Fourth Buyer; ( Closing Date ) and c) provided that the Seller would pay commission of 6% of the selling price plus GST to Brokerage B, and not 5% + GST as stipulated in the Second Listing. 22. No amendment to the Second Listing increasing the commission was ever completed.
23. The Fourth Agreement was unconditional. However, since the aforementioned Mutual Release had yet to be signed by the Seller, there were effectively two live agreements of purchase and sale as soon as the Fourth Agreement was signed. 24. On or about February 27, 2009, and despite having a firm agreement, an Amendment to the Fourth Agreement was completed calling for the Seller to pay the Fourth Buyer s lawyer $30,000.00; money which was again to be used to rectify building problems that have been found in subject property ( Amendment ). In total this meant the Seller was only securing $172,100.00 in the sale of the Property to the Fourth Buyer, and that Shepheard was securing an additional $2,150.00 in commission. Unlike Schedule B to the Second Agreement, the Amendment did not provide for any surplus paid by the Seller for the remediation of the Property be returned to her. RENTAL 25. On or about March 18, 2009, Shepheard found a number of students who were interested in jointly renting the Property. These students signed a Residential Lease agreement leasing the Property from the Fourth Buyer ( Lease Agreement ). The salient terms of the Lease Agreement provided: a. a two year lease, ending May 1, 2011; b. for the Tenants to pay a monthly rent of $1,650.00; c. identified Shepheard as the Fourth Buyer s agent; d. Called for the landloard, identified as the Fourth Buyer, to provide inter alia the following appliances ( Appliances ): i. Stove; and ii. Refrigerator. 26. On or about May 1, 2009, the Fourth Buyer purchased a used stove and refrigerator for the Property for a total purchase price of $515.00 ( Old Appliances ). TERMINATION 27. The Fourth Buyer supposedly then began experiencing difficulty securing the necessary financing to complete the transaction. 28. On or about September 1, 2009, the date the property was to be transferred to the Fourth Buyer, the Seller s Solicitor wrote the Fourth Buyer s Solicitor indicating the Seller s willingness to extend the Closing Date to September 11, 2009, providing she received rent for that time. This additional time was to assist the Fourth Buyer in securing the necessary financing to complete the transaction. 29. On or about September 17, 2009, and subsequent to a subsequent request by the Fourth Buyer for a further extension of the Closing Date, the Seller s Solicitor wrote to the Fourth Buyer s Solicitor (the September 17, 2009 Letter ). The September 17, 2009 Letter informed the Fourth Buyer s Solicitor of the cancellation of the Fourth Agreement. 30. Subsequent to the September 17, 2009 Letter, the Seller attended the Property to introduce herself to the Tenants. It was then that the poor condition of the Appliances was observed. The Seller then proceeded to purchase new appliances for the Tenants and instructed Shepheard to have the Old Appliances picked up, as the Seller did not want them. Shepheard never had the Old Appliances removed.
31. On or about September 25, 2009, the Fourth Buyer s Solicitor wrote the Seller s Solicitor inter alia informing him that Shepheard had two months rent from the Tenants, (totalling $3,300.00), which [Shepheard] considered to be an agreed upon amount of commission for finding the [T]enants for the [Seller]. This was despite the fact there was no agreement or provision for Shepheard, or Brokerage B, to receive any commission or having found the Tenants. In fact, Brokerage B had no knowledge of Shepheard facilitating the rental of the Property out to the Tenants. 32. Although the Seller instructed Shepheard to remove the Old Appliances, Shepheard issued the Seller a cheque from his personal account in the amount of $1,125.00. This amount was issued to reflect a deduction of $500.00 for the purchase of the Old Appliances. This cheque, however, was returned NSF, and Shepheard has yet to pay the Seller anything. 33. On or about April 21, 2010, the Seller filed a complaint with RECO in which she believed she had been duped by Shepheard. SUMMARY OF AGREEMENTS It is agreed that Shepheard acted unprofessionally by: 1. Failing to ensure that the Mutual Release was signed by the Seller to terminate the Third Agreement prior to executing the Fourth Agreement. Shepheard thereby contravened sections 5, 38 and 39 of the Code of Ethics. 2. Failing to ensure, or advise on, the accurate completion of the SPIS, and thereby expose the Seller to potential litigation. Shepheard thereby contravened sections 4, 5, 38 and 39. 3. Placing his and/or the interests of the Fourth Buyer above the interests of the Seller, by among other things: a. discouraging the Seller from leasing the Property, but then proceeding to facilitate the Fourth Buyer s, and ostensibly his, lease of the Property to the Tenants at a higher rent than what was being paid by the Seller under the Fourth Agreement, all the while the Property remained in the name of the Seller. Shepheard thereby contravened sections 3, 4 and 39 of the Code of Ethics. b. failing to ensure that a deposit was called for in the Fourth Agreement, or, in the alternative, failing to property advise the Seller of the added risk associated with the Fourth Agreement because it contained no deposit requirement. Shepheard thereby contravened sections 4, 5, 6, 38 and 39. c. failing to properly advise the Seller about the Amendment, including among other things that: i. the Fourth Agreement was conditional, and therefore there was no compelling reason for the Seller to agree to the Amendment. Shepheard thereby contravened sections 3, 4, 6 and/or 39 of the Code of Ethics.
ii. there was no provision included which provided that any amount paid by the Seller to the Fourth Buyer, and ostensibly himself, but not used to remediate the Property s foundation would be returned to the Seller (such as had been the case in the Second Agreement). Shepheard thereby contravened sections 3, 4, 6 and 39 of the Code of Ethics. d. facilitating an increase in the amount of the rebate payable to the Fourth Buyer, and ostensibly himself, to an amount above the estimated amount provided by the Company. Shepheard thereby contravened sections 3, 4, and 39 of the Code of Ethics. e. increasing the commission Brokerage B was entitled via the Fourth Agreement when he was representing both the Seller and the Fourth Buyer, and ostensibly himself, when in fact he knew the Fourth Buyer, and ostensibly himself, would not essentially by paying any commission. Shepheard thereby contravened sections 3, 4 and 39 of the Code of Ethics. 4. Facilitating the rental of the Property outside of his brokerage. Shepheard thereby contravened section 39 of the Code of Ethics. 5. Leaving the Seller to dispose of the Appliances. Shepheard thereby contravened sections 3, 4, 5 and 39 of the Code of Ethics. 6. Deducting an amount paid for the Appliances from the amount he owed the Seller when the Seller did not want the Appliances. Shepheard thereby contravened sections 3, 4, 5, 35 and 39 of the Code of Ethics. 7. Taking commissions from the Seller for having found the Fourth Buyer, and ostensibly himself, the Tenants when no agreement existed entitling him or his brokerage to commission. Shepheard thereby contravened sections 3, 4, 5, 35 and 39 of the Code of Ethics. 8. Failing to at least pay the Seller the money he acknowledged he owed to her, as referenced in paragraphs 31 and 32 above. Shepheard thereby contravened sections 3, 4, 35 and 39 of the Code of Ethics. It is thereby agreed that Shepheard breached the following sections of the Code of Ethics: 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. Conscientious and competent service, etc. 5. A registrant shall provide conscientious service to the registrant's clients and customers and shall demonstrate reasonable knowledge, skill, judgment and competence in providing those services.
Providing opinions, etc. 6. (1) A registrant shall demonstrate reasonable knowledge, skill, judgment and competence in providing opinions, advice or information to any person in respect of a trade in real estate. Financial responsibility 35. A registrant shall be financially responsible in the conduct of business. 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, etc. 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. AGREED PENALTY Allan Shepheard, the Respondent, be ordered to pay a penalty of $20,000.00 on or before February 7, 2014, failing which, post judgment interest shall accrue from the date of the decision. By initials below, I, Allan Shepheard, 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, Allan Shepheard, agree, understand, acknowledge and consent to waive the requirement 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, Allan Shepheard, acknowledge that I was aware of my right to be represented by Counsel or agent in this matter. [Respondent s Initials] By signatures 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
3, 4, 5, 6(1), 35, 38 and 39 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: Allan Shepheard is Ordered a Fine of $20,000.00 payable to RECO on or before February 7, 2014. [Released: February 27, 2013]