Couple’s 'coastal retreat' dream collapses after penguin protection zone comes to light

A couple who bought a “fabulous urban coastal retreat”, envisaging dog walks along the beach, say they were forced to sell it after learning it had been designated a blue penguin protection area.

Because of the designation, not only were dogs banned from the beach next to their house, but a 400m long, 1.2m-high fence was put up along the top of the dunes, destroying their sea and city views.

The couple says they only learned of the designation in a community newsletter delivered to their house the weekend after they’d moved in.

Because of the changes, “they now look at nothing but fences and have to walk 400m or drive the dogs to [a second beach] for a walk.”

They complained to the Real Estate Authority about the agents, Annette Sliper and Llewellyn Kemeys, who sold them the house, the area of which has been suppressed.

In its recent decision, the authority’s complaints assessment committee found Sliper was the listing agent, while Kemeys was her supervisor, as well as having an ownership interest in the property as a trustee of the vendor.

The committee had to decide if the two had complied with their professional obligations in terms of disclosing the council’s plans for the bird protection area, including installing the fence and the proposed dog ban.

Sliper acknowledged that the proposed dog ban on the beach was well-advertised and she was aware of it, but says she wasn’t aware of plans to build the fence.

She said she would have spoken to the couple about the dog ban if she’d known it was important to them.

But the couple say they told Sliper that the access to the beach, so they could walk their dogs, was a major drawcard for them.

In the decision, the committee found that Sliper withheld pertinent information from the couple – that significant changes were being made to the beach.

It says she should have advised all potential purchasers that the property’s key attraction, its coastal position, which was promoted as a “seaside home”, a “coastal retreat”, with a harbour view, would soon be affected by the introduction of a bird protection area.

“This would have signalled to purchasers that, should this be of interest to them, they should seek to determine what was proposed so they could take this into account in their decision-making.”

The committee said Kemeys didn’t ensure he was transparent about any knowledge he had of the property, and ensure potential purchasers were told he was a trustee of the vendor.

Purchasers claim non-disclosure was deliberate

Having determined that both agents were guilty of unsatisfactory conduct, the three-panel committee issued its penalty decision in April.

In their submissions, the owners said that had they known there was to be a fence or a dog ban on the beach, they wouldn’t have considered buying the property.

They saw the agents’ non-disclosure as deliberate and felt the pair’s responses lacked empathy and sought to blame them.

They said the time had been stressful for them and their family and had a significant mental and financial impact on them.

They put the house back on the market six months after moving in, selling it three months after that. As a result, they sought $53,607 in compensation to recover the costs of on-selling and marketing the property.

Agents claim they didn’t know about fence

But in their submissions, the agents said they didn’t know the council had plans for a bird protection area that involved building a wooden fence, and the information became public only after the property settled.

Kemeys also submitted that he was acting as a trustee of the vendor and was not undertaking real estate work.

The two also submitted that the vendor had bought another property on the same street just before the sale, and the bird protection area wasn’t disclosed.

The decision says that after both agents became aware of the complaint, they reviewed the marketing for other properties in the area and added disclosures about the bird protection areas to all listings on the street.

Sliper submitted that she was a very conscientious agent, while Kemeys said he was very experienced and had no previous disciplinary history.

They suggested Sliper should receive a fine of no more than $2000 and censure, while for Kemey, a finding of unsatisfactory conduct alone was sufficient.

The committee determined Sliper’s unsatisfactory conduct was at a low level, while Kemeys’ was at a mid-level of unsatisfactory conduct.

The committee said that had it found the information was deliberately withheld, the level of unsatisfactory conduct would have been higher.

The committee ordered the two to be censured and fined, with Sliper fined $1200 and Kemeys $3300.

Both were referred to the Real Estate Agents Disciplinary Tribunal to consider whether a compensation order is necessary.

It declined to make an order for the expenses incurred for marketing and on-selling the property, saying the couple could have arranged this with the two agents, but this course of action wasn’t taken up. It suggested this could be dealt with by the tribunal.

Ray White Kemeys Brothers director, Elliot Kemeys, told NZME: “We acknowledge the complaints assessment committee’s decision and respect the outcome. The matter relates to a historical transaction.

“The supervising licensee agent involved has since retired and is no longer the director or licensee agent responsible for the supervision and management of the business.

“We remain committed to maintaining high professional standards and ensuring appropriate disclosure and supervision across all transactions.”

Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist at the Waikato Times and RNZ. Most recently, she was working as a media adviser at the Ministry of Justice.