Estate Agents As Security Goons – The “Open House” Of The Future?
OPINIONby Peter Mericka B.A., LL.B
Real Estate Consumer Advocate
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd
The Real Estate Institute of Victoria takes security seriously now, according to CEO Enzo Raimondo, who says,
“recent changes to Victoria’s occupational health and safety laws, the murder of an agent during a property inspection, attacks on others and a spate of thefts at open for inspections has prompted the REIV to address personal safety and security issues during property inspections.”
Will the REIV encourage estate agents to engage properly trained and licensed security personnel? Or will it encourage estate agents to double as knuckle-dragging goons of the type that used to lurk in the doorways of inner-city night clubs?
Mr. Raimondo goes on to say,
“The institute suggests estate agents indicate in their advertising that entry conditions may apply to inspect properties and that these conditions be prominently displayed. The institute has prepared suggested entry conditions, which agents and vendors can adapt to their needs. These may include asking people to provide names and addresses and to identify themselves.
People who do not wish to comply with the conditions may be refused entry to properties.
It is also important that vendors comply with their agents’ suggestions to remove personal items and valuable objects or securely lock them away during open or private inspections.
Information collected by agents will be handed in accordance with privacy laws. The conditions include a “privacy notice” requiring agents to destroy the personal information once the property is sold or the agent’s authority comes to an end, whichever occurs first.”
(From “Safety Inspections – Security is being tightened in the property industry” Domain p.6 The Age, Saturday 29 October, 2005)
Estate agents as Security Guards and Crowd Controllers
It would appear that the REIV may be encouraging estate agents to take on a number of security roles for which they have neither the training nor the proper authority.
According to the Private Security Act 2004:
“security guard” means a person who is employed or retained to protect, watch or guard any property by any means.
“crowd controller” means a person who is employed or retained principally to maintain order at any public place
“public place” means any place to which the public.are permitted to have, access, regardless of whether or not they have to pay to enter
What does this mean for the real estate agent? It means that an estate agent who finds that he or she is employed to protect belongings or to maintain order in a vendor’s home is a security guard and a crowd controller under the Act.
Does this mean that the estate agent must be licensed?
Perhaps not at this stage. Section 4 of the Act tells us that a person is not required to hold a private security licence, if while acting in the course of their employment, they are required to watch, guard or protect any property or do any inquiry work.
But the answer is not as clear as it may, at first, appear to be. Questions arise as to who employs the estate agent, and for what purpose.
Purpose of the employment
Is the estate agent employed to effect sales of real estate AND to provide security services for the agency? Perhaps the agency may expect the estate agent to watch over “Open For Inspection” signs, so that they’re not stolen; or to keep an eye on visitors to the agency office, to ensure that they behave appropriately.
But it is arguable that the estate agent is not employed to protect property belonging to a third party, i.e. the vendor client.
Required to guard property or control visitors?
Is it part of the estate agent’s employment contract that he or she should act as security guard or crowd controller?
Could an estate agent be dismissed for refusing to assume responsibility for the protection of property and the controlling of visitors? If an estate agent cannot be dismissed for refusing to accept responsibility for such matters, can it be said that the estate agent is “required” by his or her employer to perform the role of security guard or crowd controller?
Inventory of property
Assuming that the estate agent is required to act as security guard and crowd controller when a property is “open forinspection“, how does the estate agent determine the extent of his or her responsibility? Will the estate agent be required to check off and sign an inventory of personal property in his or her care?
Recording visitor details
On what basis does the estate agent demand that a visitor should provide personal information, and how much information will a visitor be required to provide?
What discretion will the estate agent have after a person has provided the requested information? For example, can the estate agent demand that the visitor must provide further proof of the information provided?
Can the estate agent physically bar entry to a person who provides all information requested, but whom the estate agent regards as “undesirable”?
Will the estate agent be held responsible for allowing access to a person, when any other security guard or crowd controller would have refused the person entry? What is the liability of the estate agency in such circumstances?
Privacy
Estate agents have long regarded the “open for inspection” as an important marketing tool. If someone is looking to buy a home, they’re probably looking to sell. It’s important to follow up on all names recorded during the “open for inspection“, not only to demonstrate to the vendor that the estate agent is working hard for the vendor, but also to demonstrate that he is working hard for the agency, and of course, for himself.
We have seen, in a previous posting on the Australian Real Estate Blog (REIV Information Outrage!) that the REIV has no qualms in manipulating “Privacy” documents for it own selfish purposes.
What rules should govern the use of the personal information gathered by estate agents? Who will police the privacy protection measures, and how? What limits will be set as to what information estate agents will be permitted to gather?
Power to remove persons from premises
If the estate agent decides that a visitor has gained entry by false or improper means, what responsibility does he or she have to remove them?
What power does the estate agent have to physically remove such a person?
What responsibility does the estate agency bear if either the visitor or the estate agent are injured during a forced removal of the visitor?
Power to detain
What power does an estate agent have to forcibly detain a person he or she believes has taken possession of property for which the estate agent is responsible?
Will the estate agency or the vendor client expect the estate agent to forcibly detain a visitor who attempts to leave the premises with personal property belonging to the vendor?
Will estate agents have to become licensed?
If estate agents are moving from the simple role of invited guest and usher, to one ofsecurity guard and crowd controller, it is arguable that they act beyond the scope of the exemption provided in the Private Security Act 2004.
It appears that the Real Estate Institute of Victoria is advising its members on collecting information from visitors, refusing entry to those who refuse or fail to adequately identify themselves, the safe handling of valuables, and the proper handling of personal information.
Perhaps it is time for the regulators to require estate agents to be as accountable as others whose functions are governed by the provisions of the Private Security Act 2004.
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