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Corporate skulduggery

In December 1991, a co-broking agent XXX signed an agreement with my agency to pay a monthly fee for the duration of the lease after receipt of the rent from the Tenant. The money would be given to the Occupant to defray expenses.  Normally, I would want the Owner to sign this agreement but as the co-broking agency wanted full control, a trait not uncommon in some realty firms, insisted on signing the agreement, I agreed to it. It said it had "sub-leased" the rental property from the Owner and therefore was the "Owner".

I had difficulty getting prompt payments especially in the last 6 months of the tenancy. This would usually be a warning sign of cash flow problems.  XXX finally said that the bona fide Owner had died intestate at near the expiry of tenancy and therefore I had to wait for payment after the probate was issued.   

This was a new situation to me. I waited four months but was told to wait. Now, it was nine months after the Owner had died without leaving a will and XXX became evasive and not returning phone calls, telling her administrator that XXX would contact the Occupant direct, that she was overseas and she was on maternity leave and I should wait till her leave ended.  There was no courtesy of returning my few calls and messages left at her office. I did not call her mobile directly as she was on maternity leave.  

I told the administrator that there was a written agreement to pay the fee monthly, but the adminstrator said that there was no such agreement and she only had a copy of the tenancy agreement. 

Therefore, it was skulduggery, a crafty deception or trickery, hanky panky, jiggery pokery or slickness, although she did not say so forthrightly. I could read that in her mind. Hard luck for my  expatriate client. Too bad for me. I had not bothered to fax a copy of the management contract as I was already fed up after having to fax receipts and a statement of accounts earlier to substantiate the amounts owed. This showed that XXX had wanted proof of payment or had not kept proper accounting. To XXX, that meant no written documentation and therefore no need to bother with me.  

I engaged a lawyer to sue XXX for the money and handed the assistant the documents.

Suddenly XXX contacted me but she would not provide the name of the Adminstrator of the dead owner's estate and said she would talk to the expatriate directly. 

XXX or her adminstrator had told the lawyer's assistant that the payment was "under the table" and confirmed what I thought about skulduggery. As a licensed agency, I don't want to get caught in such malpractices and risk getting my real estate licence revoked. 

The lawyer's assistant said: "It takes some time for the probate to be issued.  XXX now will contact the dead man's estate to confirm in writing that the fee will be paid."

"How long does it take a probate to be issued?" I asked the assistant. 

"Six months at the earliest."

"It is already nine months since the Owner died," I said. 

"The family members usually takes some time to get a lawyer in intestate cases and the probate will take more than six months to be granted."

"The probate might have issued and all proceeds from the Estate might have been distributed. There will be nothing left for my company since I did not make any prior claim."  The assistant had not thought of this scenario.

Should I wait further? Inaction would cost me dearly and would be irresponsible. My point was that the probate could have been granted. XXX had refused to divulge information on the Owner and therefore my lawyer would have to do the search and that would cost money. 

"The younger generation is many times smarter than the older generation and we must presume that the probate had been granted." I told the lawyer's clerk, a most successful man at the peak of his career.  

However, he typified the older generation that would rather  use the personalised approach rather than email or the internet and other new fangled technologies like PDAs, ftp, html, xml and the popular sms and sms with videos. These just overwhelm his brain already burdened with family responsibilities and heavy workload.

I can't presume that the probate had not been granted since there was great difficulty in getting information from XXX. She had avoided giving me the information. Her agency which was not a start up but neither was it a branded name and when there was no transparency, this was already a warning sign of something not being right.

XXX now told me to write to her to request some info on the probate after she had received a call from the lawyer's assistant. This would be a delaying tactic as she had complained about "under the table" payments to the assistant.  Her focus and that of her administrator were on trying to  contact the expatriate to let him know about the probate delay, a fact the latter already knew. This was superfluous.  

Waiting indefinitely for the probate to be issued means having to keep track of XXX every month and this is a hassle.  XXX must have got fed up of such calls.

What if XXX's agency goes into bankruptcy and cannot be found? A larger number of bankruptcies happened in 2001 and therefore I could not presume things would not change.    

To me, as a lay man, a financial claim must be made before the probate is issued although the lawyer's assistant did not advise me accordingly. In this case, the agreement was with XXX and not with the dead man. It was legally unenforceable on the estate. The assistant would consult his lawyer.   

It would be better not to use lawyers as we are realtors in the same profession.  But in such instances, the expertise of the legal profession would be best and responsible for an agency managing the interest of the expatriate. 

I told the lawyer's assistant not to wait any longer and proceed with legal action to recover the monies. This was a case best handled by the legal profession. There was no corporate skulduggery unlike the Enron case although XXX must have thought so since there was "no" written agreement and that payment by her agency must have been "under the table" for the past 20 months! 

This case illustrates the importance of a written management contract in real estate. In fact, all real estate business must be in writing.  Without one, the other party plays you out, as in this case, using corporate skulduggery innunendos when the chips are down.  

Human behaviour is much more complicated nowadays and the practising realtor must be knowledgeable about the laws of real estate but also the laws of intestate as well, if there are such laws! 

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