When a Real Estate Negotiator Gambles Away the Buyer's Deposit: A Malaysian Nightmare
The Scandal: Trust Betrayed
Imagine this scenario, which is more than just a professional disaster—it’s a criminal one:
A home buyer pays an RM10,000 earnest deposit to their Real Estate Negotiator (REN). Instead of following the law and depositing the money into the agency's official client account, the REN convinces the buyer to transfer it to their personal bank account. Days later, the REN goes to Genting Highlands, loses the entire sum at the casino, and disappears.
What happens next is a serious legal and professional fallout for everyone involved.
The Legal Violations: Criminal Breach of Trust
Under Malaysian law and the regulations set by the Board of Valuers, Appraisers, Estate Agents & Property Managers (BOVAEP), the REN has committed severe offences.
1. The Cardinal Rule Violated
A REN is strictly prohibited from holding client money in a personal account. All deposits and booking fees must be paid to the agency’s official Client Account (e.g., "ABC Realty Client Account").
By diverting the funds, the REN has:
- Committed Criminal Breach of Trust (CBT): This is a serious crime under Section 406 of the Penal Code and carries a potential jail sentence.
- Breached the Fiduciary Duty: The REN was legally entrusted with the buyer’s money and violated that trust.
- Violated Agency Procedures: They breached Section 22C(1)(b) of Act 242, which mandates that RENs operate only under the license and procedures of their supervising Real Estate Agent (REA).
Who is Legally Responsible?
When the deposit vanishes, three parties are immediately drawn into the mess:
1. The REN (The Main Offender)
The REN is the primary culprit and will face a criminal investigation following a police report. They are liable for the full amount. However, if the money is already spent, recovering the funds from the REN personally becomes extremely difficult.
2. The Real Estate Agency
The agency may face vicarious liability. If the REN used the agency’s name card, email, or branding during the transaction, the buyer had a reasonable expectation that the REN was acting on the firm's behalf. In such cases, the agency could be held partially responsible for the financial loss.
3. The Supervising REA (The License Holder)
The Real Estate Agent (REA)—the firm’s license holder—can be investigated by BOVAEP for negligent supervision. This oversight could result in suspension or other disciplinary action against the REA’s license.
The Next Steps for the Buyer
The buyer must take immediate action on three fronts:
- 1. File a Police Report
A report must be lodged, classifying the matter as Criminal Breach of Trust (CBT). This initiates the criminal investigation against the REN. - 2. Lodge a Formal BOVAEP Complaint
A complaint should be filed with BOVAEP. This action can lead to the revocation of the REN’s registration and an inquiry into the supervising REA’s conduct. - 3. Pursue a Civil Lawsuit
The buyer can file a civil claim against the REN and, potentially, the agency to recover the money. Compensation, however, is contingent on whether the REN or the agency has recoverable assets or insurance coverage.
Essential Safeguards for Everyone
For Buyers: Protect Your Money
- Pay to the Client Account ONLY: Always make deposits payable to the registered agency's Client Account, never to an individual or personal account.
- Demand an Official Receipt: Request a formal, printed receipt issued by the agency, not a handwritten note from the REN.
- Verify Credentials: Check the REN’s name and registration number on the BOVAEP website to confirm they are legitimately registered.
For RENs and Agencies: Protect Your Business
- Zero Personal Handling: Never accept or temporarily hold client money personally.
- Use Mandatory Clauses: Protect your firm by including a clear disclaimer on all official documents (Offer Letters, Payment Instructions, etc.):
“All payments must be made payable to [Agency Name] Client Account. The firm shall not be responsible for any payments made to individuals or personal accounts.”
This simple clause can provide a strong legal defence if a rogue negotiator acts outside the established procedure.
This is not just about professional procedure; it’s about legal compliance and the financial security of your clients. Which of these safeguards do you think is the most important for an agency to enforce?
