Couple's Tamahere dream-house heartbreak

'They basically just screwed us. We're screwed'

JENNA LYNCH
Last updated 09:14 08/02/2014
pinotecki
PETER DRURY/Fairfax NZ

HIGHWAY HOME: Rafal and Sylwia Piontecki bought an $845,000 Tamahere home, only to find a motorway was planned to crash through their kitchen.

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A Tamahere couple is furious that a real estate agent who sold them a house in the path of a proposed motorway is still trading.

Rafal and Sylwia Piontecki spent two years trying to find a dream home. When Bayleys agent Angela Davies showed them a gorgeous three-bedroom home set on a 1.2-hectare (3-acre) lifestyle block, with enough room for their children to ride motorbikes and raise pet alpacas, they thought their prayers had been answered.

But the $845,000 property was a ticking timebomb - the planned Southern Links Motorway will plough straight through their kitchen.

Just over two months after moving in, the couple attended a meeting at the Tamahere Community Centre in December 2011. Mrs Piontecki pointed out her house on a map to a fellow resident who said: "I'm very sorry but a motorway is going through there."

"I was just physically sick with shock," Mrs Piontecki said. "I went outside and I was crying so much. I'm taking pills for the sleeping and anxiety. It's so hard, even now."

Ms Davies declined to comment and referred the Waikato Times to Hamilton branch manager Stephen Shale, who said the pair were being "vindictive".

The couple say roading plans were an issue they raised multiple times when buying the house in August 2011 and they were assured the planned Southern Links project would not affect them.

There was no mention of the proposed works in the valuation of the property, prepared by John Sweeney for finance purposes, or in the Land Information Memorandum (LIM).

After discovering their home was set to be bowled over, the couple ordered a revaluation of the property from Geoffrey Tizard, who determined that it had dropped $165,000 in value.

The Pionteckis won a civil case in the Hamilton District Court in May - for breaches of the Fair Trading Act - against Ms Davies and her employer, Success Realty Limited (trading as Bayleys) along with valuer John Sweeney and his firm Fergusson Lockwood and Associates Limited.

In a reserved judgment, Judge Peter Spiller noted both Ms Davies and Mr Sweeney "engaged in conduct that was misleading or was likely to mislead".

The four defendants were ordered to pay a combined total of $35,000 - $30,000 to compensate for the home's reduced value and $5000 for stress - to the Pionteckis, but the couple say that is not enough.

"She wasn't punished, that's basically just the commission for this house," Mr Piontecki said.

The couple said Ms Davies told them the planned works were for Airport Rd or Pencarrow Rd, both of which are at least 500 metres from their home. But Ms Davies' evidence was that she had clearly pointed out the area being considered for the Southern Links project - even showing the couple an A3 map to illustrate.

According to the judgment, the court heard that Ms Davies had shown another potential buyer a map, but Mr and Mrs Piontecki said they never saw one.

"Ms Davies admitted that she told Ms Woodfield, but did not tell Mr and Mrs Piontecki, that the property being viewed ‘falls within the blue line' (one of the possible routes being investigated)," said Justice Spiller in his findings.

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"This was despite the fact that she knew that the property was very near the route coloured blue," he said.

The judge referred to evidence that Mr Sweeney had a conversation with Mr Piontecki where they discussed the Southern Links and how this would affect the property.

"I find that Mr Sweeney told Mr Piontecki that the project would not affect the property."

Judge Spiller also said in his findings that, at the end of the exchange with Ms Davies, Mrs Piontecki was "made to feel comfortable" that the road would not affect them.

"I find it inconceivable that she would have reached this position without having been misled by Ms Davies."

The couple have also laid a complaint with the Real Estate Agents Authority. Chairperson of the Complaints Assessment Committee, Marina Neylon, found that, although Ms Davies had engaged in "unsatisfactory conduct", the authority was pressing no further orders, stating that "the orders made by the District Court on this matter, having been complied with, are sufficient".

Mrs Piontecki thinks this is ludicrous. "She devastated our life, she was guilty but . . . she's still out there selling houses."

Mr Shale said he held the personal opinion that "there was no case to answer" and, as the authority found it was a case of "unsatisfactory conduct but certainly not misconduct", he did not have a problem with Ms Davies continuing to work for the firm.

"She is one of our best agents in the Waikato and I've been in real estate for 16 years and I hold her in very high standard and if there was any compromise to that then she wouldn't be working for the firm but I don't believe that's the case. I feel that these guys are vindictive and we'll leave it at that."

The authority also said in its discussion of the case that it was "concerned" the couple's solicitor Judith Wake had not raised alarm bells about the road before documents were signed.

"The committee is surprised and concerned that an issue of this importance was not identified by the complainants' solicitor prior to the complainants making their agreement unconditional."

Mr Piontecki disagreed and said he was pleased with the work of Ms Wake. "I'm happy with Judith's job being done. She hasn't done anything wrong."

They have now lodged an appeal with the real estate authority.

But Mr Shale said he was confident the appeal committee would have the same findings.

"We'll wait to see the findings of the appeal which I'm sure won't change anything to do with the result and then these people need to move on," he said.

The couple said that everyone had been assuring them they had the perfect buyer, and that they would get more than market value for their property, but the New Zealand Transport Agency had no plans to buy any property to build the road for the next 10 to 15 years.

"We're stuck. Someone took the opportunity and possibility of having the freedom of choice from us," Mr Piontecki said. "They basically just screwed us. Completely screwed us."

John Sweeney, of Fergusson Lockwood and Associates, said it was never his intention to mislead the couple and full information about the project was unavailable to him at the time.

"At the time we did the valuation, it was very unclear where the Southern Links project was actually going," he said. "It's not like I was ever meaning to mislead anybody."

Fergusson Lockwood boss Russell Fergusson said his firm had never been involved with "anything of this nature" before and that Mr Sweeney had his full support as "a very competent and experienced valuer".

The LIM did note the property was close to the Waikato Expressway, but no mention was made of Southern Links.

Waikato District Council chief executive Gavin Ion said there was not enough certainty for the council to add information about the Southern Links to LIM reports.

"We have a responsibility to give accurate information on a LIM report. As there were three proposed options for the Southern Links network in 2011 there was no certainty for us to put anything on a LIM report."

"Even now with a preferred route identified we could not add that to any LIM since it is neither confirmed nor legal until completion of the process. We would only be obliged to highlight on a LIM that the process had begun," he said. 

Read the following documents:

» court decision

» court judgement

Following publication of this story the Real Estate Agents Authority accepted that the Complaints Assessment Committee's comments about the Piontecki's solicitor were made in error as the Waikato District Council has accepted that it did not include relevant material in relation to the Southern Links Motorway in its LIM report for the property.

- © Fairfax NZ News

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