Property agent gets jail for deceiving buyer and seller of HDB flat to receive double commission
SINGAPORE: A property agent was sentenced to 23 weeks' jail and fined S$11,000 on Thursday (Jun 9) for deceiving both the buyer and seller of a Housing and Development Board (HDB) flat to receive double the amount of commission.
Toh Yew Hock, 52, pleaded guilty earlier this month to one charge of dual representation under the Estate Agents (Estate Agency Work) Regulations, and one count each of criminal breach of trust and cheating.
He was a registered salesperson with PropNex Realty at the time of the offences. A Council for Estate Agencies (CEA) prosecutor told the court his registration will expire at the end of the year.
The prosecutor said the discovery of the offences was "entirely fortuitous" as the buyer and seller were able to have a face-to-face discussion when Toh was late for an inspection of the flat.
In April 2018, a couple who owned the flat engaged Toh to represent them in the sale of the flat. It was advertised online for S$820,000.
An interested buyer came across the advertisement the following month and contacted Toh to arrange a viewing.
On May 21, 2018, Toh told him that the owners had suspended all further viewings after receiving an offer of S$810,000. This was untrue.
To secure a viewing, the interested buyer offered to match the S$810,000 offer and pay 3 per cent agent commission to Toh, comprising the buyer's 1 per cent and seller's 2 per cent commissions.
The buyer was under the impression that Toh represented him in the sale because he had engaged Toh to do so. They later signed an estate agency agreement on Jun 15, 2018.
He viewed the flat on May 24, 2018, after which Toh advised him to increase his offer, saying that the seller had rejected a similar offer previously.
The buyer raised his offer to S$820,000 but did not offer to pay the seller's commission this time. He also issued a S$1,000 crossed cheque to cover the option fee and gave this to Toh to pass to the seller.
The seller accepted the S$820,000 offer and issued the option to purchase the next day.
Toh informed the buyer that his offer was accepted, but lied that the seller had added on the condition that he paid half the seller's commission. There was in fact no such condition.
The buyer was reluctant and negotiated with Toh to pay a S$15,000 commission instead. This comprised the buyer's 1 per cent commission and half of the seller's 2 per cent commission, minus S$1,400, as a discount.
CASH OVER VALUATION
A valuation report on Jun 11, 2018 established the flat's value as S$760,000 – about S$60,000 below the accepted offer. The buyer would therefore have to pay cash over valuation of S$60,000.
The buyer forwarded the report to Toh, informing the agent that he was not upset or troubled about the valuation. He did not give any indication that he could not afford the additional S$60,000.
However, about two weeks later, Toh called the seller and lied that the buyer faced difficulties securing a bank loan due to the low valuation of the flat.
He also said that the buyer was only able to pay at most S$20,000 of the cash over valuation. This was also untrue.
Toh said he would try to resolve the situation. The next day, he called the seller and proposed selling the flat for S$790,000 instead, S$30,000 less than the accepted offer.
The seller grudgingly agreed to this arrangement as she had already paid an option fee for a new property, and urgently needed to sell the flat to finance the new purchase.
On Jun 15, 2018, Toh and the buyer met to finalise the sale.
Toh lied that the remaining S$4,000 of the option exercise fee should be paid with a cash cheque as the seller needed cash urgently. The buyer entrusted Toh with the cheque, which he misappropriated.
Later, Toh met the seller and lied that he had negotiated with the buyer to buy the flat at S$797,800.
As this supposed price was below the S$820,000 price listed on the option to purchase, Toh proposed to the seller a way to account for the difference of S$22,200.
He lied that the buyer had asked for a waiver of the S$4,000 and a "refund" of S$10,000. He also lied that the buyer had asked the seller to pay the buyer's commission of S$8,200.
The overall effect of this was to allow Toh to keep the S$4,000 cash cheque for himself while enjoying a double share of the buyer's commission, said Deputy Public Prosecutor Joshua Phang.
The seller felt uneasy and asked Toh if the option to purchase could be amended or reissued to reflect the new lower selling price. But Toh said this would delay the sales process and could result in the buyer being unable to exercise the option to purchase before its expiry.
The seller agreed with Toh as she did not want the sale to fall through, court documents stated.
Toh kept the S$4,000 cash cheque for himself. He passed the S$10,000 "refund" to the buyer and claimed that the seller felt bad about the flat's lower valuation and wanted to give him compensation.
Toh then received a S$15,000 commission from the buyer.
DISCOVERY OF OFFENCES
The offences were discovered on Aug 18, 2018 during an inspection of the flat. Toh was supposed to be there but was running late.
In his absence, the buyer and seller started discussing the sale and discovered that they were both paying the buyer's commission to Toh.
When Toh arrived, they confronted him about this. The buyer also discovered that the seller had not received his S$4,000 cheque.
Toh admitted he had kept the S$4,000, but claimed that "he deserved it as he had worked hard and met the expectations of the parties in closing the transaction at the agreed price", court documents stated.
The buyer and seller reported these events to CEA and PropNex.
Toh made full restitution of S$15,000 to the buyer and S$4,000 to the seller, via PropNex. The agency also waived the agent's commission payable on the transaction.
Mr Phang said Toh's offences were premeditated and "carefully calculated to exploit information asymmetries between his buyer and seller victims to maximise his personal benefit".
ADVICE TO CONSUMERS
After the case was heard, CEA reminded consumers that an agent cannot represent and collect commission fees from both the buyer and seller, or tenant and landlord, in the same property transaction.
"Dual representation creates a conflict of interest as it is not possible for the agent to act in the best interests of both parties," the council said.
However, an agent who has his or her client's consent can help the other party with paperwork. It must be clear to all involved that the agent is not acting for the other party, said CEA.
After the transaction has been completed, the commission should be paid to the property agency and not the agent, it added.
Property agencies and agents are also not allowed to handle transaction money, including the option fee, which should be handled by consumers themselves.