The case scenario involves the sale of a home belonging to a friend called Jim. The issue at hand is about the non-inclusion of the creepy crawly pool cleaner which the buyer notices that it was, not included in the initial listing and demands that it be part of the initial settlement before he can complete the transaction. On the other hand, Jim argues that the pool cleaner doesn’t come with the swimming pool and furthermore it is new and therefore will keep it. This situation will be handled in three central negotiation stages namely the assessment or conflict or dispute, negotiation resolution, and evaluation of the response (Crump, 2011).
The assessment of conflict disagreement is the initial stage in which the conflict or dispute is identified and analysis of reactions done based on the legal requirements of the organization (Ramsbotham, Miall, & Woodhouse, 2011)., Clea,r and open discussions between buyer and seller are held to assist to clarify the issue at hand and to ascertain the expected outcomes within the confines of the legislation of the agency through negotiation. The Negotiation process will involve comprise or agreement while an argument is avoided. The negotiation process will be carried out in six stages namely groundwork, debate, goal clarification, arbitration towards win-win scenario, settlement and the execution of a course of action (Lewicki et al., 2011).
The negotiation process will adopt a structured approach to ensure a desirable outcome is achieved. An agreement with the parties on the venue of the discussion,n will be done in addition to the expected attendees. The timescale for the discussion will be agreed upon by both parties to prevent unnecessary differences. All the parties will be informed of agenda and any relevant issue such as agency legislation, and any applicable organizational policies on negotiations. These will be sent to the parties via email. This preparation will help to save time for pertinent issues during the meeting.
During the discussions, both the buyer and seller will then be allowed to put forth their respective sides of the case. I will then apply essential negotiation skills such as interrogation, listening and explaining. During this process, I will be noting down significant points from both sides. Any disagreement will mainly be my primary focus. Each party will be allowed 20 minutes to present their case. I will also apply my listening skills to accurately receive messages in the process of communication. For example by talking less and listening more, preparing to listen and putting both parties at ease, removal of any distractions such as looking out of the window, avoid doodling, and leaning forward. Furthermore, I will employ effective communication techniques to ensure there is the correct exchange of information. These include active listening, use of body language and non-verbal communication, speaking precisely and audibly, the use of appropriate tone and language. Other specialized advice might be sought for by incorporating another party but within the agency requirements. This will be dependent on the trend of the discussions and the outcomes if any.
The second stage in the negotiation process is negotiation resolution which entail the negotiation with Jim and the buyer of the home to arrive at the desired results. The appropriate information will be collected from both parties, analyzed and then ordered to enlighten the negotiation. The method of negotiation is carried out according to the organizational rules and policies. Professionalism is to be practiced during the negotiation by showing respect to both parties according to the ethical practices and regulations of the agency.
Then I will apply effective negotiation methods to try to persuade and attain an agreement between Jim and the buyer and to maintain an important interaction and minimize any misconduct. These techniques include the regulation of tone of the voice and body language, being flexible and showing the desire to negotiate. I will also use affirmative, assured and supportive language to avoid any bias, apply clear presentation of alternatives and penalties. I will also employ the use of strategic interrogation and listen to collect information and to achieve a total concentration of both Jim and the buyer. Based on the preceding discussion, the objectives, interests, and opinions of Jim and the buyer will be clarified and listed in the order of preference. The clarification will also assist in the determination of the shared ground.
Any contradictions, vagueness, doubt or confusion are recognized and clarified based on agency procedures. Clarification will serve to ensure a correct understanding of either Jim or the buyer’s statements. Also, it helps to reassure the speaker of the honest concentration of the listener and an interest in the comprehension of the sentiments (Brownell, 2010). This will be done through non-judgemental questioning, summarizing and requesting a response to ascertain whether it is right (Huerta-Wong, & Schoech, 2010). Any factors that may affect the security of Jim and the buyer or either are identified and proper contingency measures effected. These include the use of specialists and experts, intervention and counseling.
The possible agreements are then analyzed and their viabilities evaluated. There are two significant possibilities in this case; both parties may still hold their positions, i.e., Jim may even demand that the pool cleaner machine was not listed in the initial signed agreement and the buyer may still hold that it must be included and that he/she will not pay the extra sum for it. On the other hand, both of them may agree to compromise but at least benefit from the transaction. The final position is confirmed by the assurance that both parties are cognizant of the consequences. However, both Jim and the buyer are to be offered with reports or any subsequent communication to confirm their final responses.
After considering the views and interests of both Jim and the buyer, we will strive to reach an agreement. At this step, I will endeavor to keep an open mind to attain a solution to the issue at hand. The deal will then be clarified to ensure that both parties understand what they have decided. The agreement here implies that either Jim agrees to include the pool cleaner machine in the listing or the buyer agrees to pay the extra $950 for the machine after Jim declines to include it in the listing. In such a case, the transaction will continue as it was initially and the buyer will be expected to settle the remaining amount, and the deal will be signed off. An agreement will only take place when both of the parties are willing to compromise for the existing alternatives so that both parties feel that they have gained something in the agreement (Deutsch et al., 2011).
Another possible outcome is a disagreement whereby both parties stick to their positions. This will demand alternative solutions such as rescheduling of the meeting or involving the courts, tribunals or conciliation and mediation. An agreement is to be made on whether to offer the parties’ time to brainstorm or to seek legal intervention. The additional meetings will still repeat the process of negotiation as outlined above. Any further ideas will then be recorded and the scenario reviewed. Other specialized advice might be sought for by incorporating another party but within the agency requirements. However, in the case that either or both parties prefer the legal process, an agent, I will offer them information on the possible consequences of the same and have them to sign on their final agreement.
The third and final step in negation process is response evaluation. After both Jim and the buyer have presented their cases based on their understanding, both responses are evaluated of their effectiveness and reviewed based on the Australian Trade practices laws and guidelines, and the company’s requirements like complaint and dispute resolution procedures. The feedback evaluation results are systematically arranged in a format that is appropriate for analysis based on the company requirements. Modern, useful business technology equipment is used to organize records and reports based on the suitable OHS (Eason, 2014), and by the governmental and agency policies. All the recorded information is stored securely, and confidentiality maintained according to the governmental and agency policies. The equipment includes computers, data storage devices, and the internet.
The case study shows a wilful omission of valuable information by Jim while listing his house for sale. This is against the organizational requirements on legal and ethical requirements and codes of practice, and a breach of the legislative provisions on trade practices laws and guidelines and consumer protection (Howells & Weatherill, 2017). Therefore, the buyer has all the right not to pay an additional sum for the swimming pool cleaner which initially was indicated in the listing. The buyer acted on the information provided by Jim and therefore is justified to acquire the home inclusive of all the listed items.
The case study involves the sale of the property with tenant in situ. There are frequent issues that arise while selling tenanted properties. The common one is the refusal by the tenant for viewings by the prospective buyers which is the scenario in the case study. In such a situation it is crucial that the legal rights of the agent, landlord and the tenant be reviewed to make an informed decision.
The rights and duties of the agent in the case study are only bound to the landlord who is the vendor and to the buyer excluding the tenant. The specific legal responsibilities of the agency in the case under study include the duty to educate the landlord on the process of selling the property including the best options, to search for best buyers and propose trusted experts that are beyond the services offered by the agency. The agent also is mandated to take the prospective buyers for viewing (Levitt & Syverson, 2008). However, in the case study, the agency is not bound in any way to the tenant and therefore can only operate within the agreement.
The landlord in the case study is also entitled to some rights. The agreement between the landlord and the tenant to continue to reside in the house and sale will depend on whether it is a formal agreement or it is backed-up with an AST agreement. According to the Residential Tenancies Act 2010, NSW, if there is an AST agreement between the tenant and the landlord, then the tenant is to vacate the house after being served a two months’ notice by the landlord (Hodgkinson, 2008; Lindsey, 2010; Jacobs, 2008).
The right of the landlord to show potential buyers the property of the tenant in situ will rely on two things; first, if the tenant allows it and secondly if in the agreement between the two had a clause which expressly allows the landlord to access the premises irrespective of the reason. If such a provision exists in the contract, the Residential Tenancies Act stipulates that the landlord must first serve the tenant a 48 hours’ notice before the planned visit, and the tenant must first adhere with the request (Hawkins, 2015). The absence of such clause will imply that the landlord has the right of access to the property. However, landlord access to premises is traditionally dependent on the established rapport between the tenant and the landlord (Bryan et al., 2015).
The only situation that the current tenant can be evicted from the premises according to the NSW Residential Tenancies Act 2010 is when he breaches the tenancy agreement, when he is guilty of illegal or immoral use of the property, deterioration of the property due to the tenant’s negligence, issuance of notice to quit by the tenant, the tenant sublets the house without permission, and the property is justifiably required by the landlords close relative (Garner & Frith, 2010).
The tenant enjoys various privileges during the sale of the properties under section 100 of the NSW Residential Tenancies Act. The eviction of a tenant during this period will depend on multiple factors including the period the tenant has been in the house, in addition to the tenancy agreement date, the type of tenancy, i.e., whether assured shorthold or protected tenancies. If the tenant in the case study occupied the property by 15th January, then his eviction will almost be impossible because the tenant is deemed to be a “protected” tenant (Arden & Dymond, 2012). Furthermore, the rent rate of protected tenants is different from that of the market rate because it is usually set by a rents officer. Assuming that the tenant in question occupied the premises between 15th January and 27th February, then he is deemed to an assured shorthold tenant. Also, the tenant was not served with a notice, meaning he is an assured tenant and eviction will have to take another legal process (Cowan, 2011; Carr & Cowan, 2015).
In the scenario of the case study, the tenant is bound by the original tenancy agreements even under the new landlord to be who assumes the tenant’s Assured Shorthold Tenancy (AST) after the purchase. The tenant is entitled to eviction after being served a 60 days’ notice under the NSW Residential Tenancies Act 2010, and this is on condition that it is AST (Garner & Frith 2010). This means that even the buyer does not have the right to cancel the initial agreement and thus no eviction right.
Under section 53(4) of the NSW Residential Tenancies Act, the tenant has the right to allow viewing or not depending on whether the tenancy agreement expressly includes a clause for the same. If there is no such clause, the tenant has the right to decline the viewing, or it is done at his discretion. Any form of coercion or bullying by the landlord with an objective of gaining access to the tenant’s house including repeated requests and intimidation by the landlord without notice will be regarded as trespass, invasion of property or breach of silent covenant.
The tenant’s objections can be summarised into two namely, the opposition to “open house” and unavailability. With regard to these objections, the solution will depend on the type of agreement with the landlord (Assured Shorthold Tenancy (AST) or protected tenant), the date of entry into the premises or if there is any clause in the agreement about landlord’s access to the premises for whatever reason be it repair or review. If the tenant enjoys the rights of a protected tenant, then the decision to view the house by buyers is left at his discretion, and that is on Sunday when the agency is not in operation.
On the other hand, if the tenant is an assured shorthold tenancy, then an eviction can only be served after a two months’ notice to terminate the initial tenancy. And in case the sitting tenancy declines to vacate, then the landlord can advisedly commence legal proceedings. These procedures will only take place with the consent of the landlord to sell an open house. On the contrary, the buyer still insists that the house has to be sold with the tenant in situ, and therefore, the agency will have to look for alternatives like offering me an off-duty on a different day so that I can make it on Sunday to show the potential buyers the property. In such a case the tenant will have to be served with a notice before 48 hours of the visit. This is because an agreement had already been entered into by the agency with the buyer and therefore cannot be wilfully breached.
The situation at hand creates a big problem for the agency to fulfill its mandate. All the potential buyers are halted in the process of desiring to buy the property because they cannot view it and therefore can’t buy something they haven’t evaluated. Also, the marketing role of the agency is not fruitful since the interested clients cannot access the property. The availability of the tenant is also another issue because he is only available on Sundays when the contracted agent is off-duty. Perhaps the most challenging part of this case is that the vendor wants to sell the property while the tenant is in situ to continue receiving rental income during the time of sale, a situation that makes it difficult for buyers to view the property at once.
Based on the complexity of the situation, the only option left for the organization is to reorganize itself and offer me an off-duty during the weekend so that the potential buyers can be taken for viewing on Sunday when the tenant is available and willing. Any misunderstanding, contradiction, vagueness or doubt regarding the intended visit is identified and clarified based on the organizational policies on privacy and confidentiality rules and policies to the tenants. For example, providing a 48 hours’ notice to the tenant before the visit.
After the reception of the tenant’s feedback of the visit notice according to section 53(4) of the Residential Tenancies Act 2010, the response is evaluated and reviewed. Then the potential buyers are notified of the visit time and date. The findings are recorded and organized in a suitable format for analysis based on the agency policies. The technology equipment in business is then used to record the processes and reports compiled. The information is stored securely and confidentiality maintained.
References
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Bryan, J., Deaton, B. J., & Weersink, A. (2015) Do Landlord-Tenant Relationships Influence Rental Contracts for Farmland or the Cash Rental Rate?. Land Economics, 91(4), 650-663.
Carr, H., & Cowan, D. (2015) The Social Tenant, the Law and the UK’s Politics of Austerity.
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