49AOffence not to give certain information about commission

49A Offence not to give certain information about commission (1) An estate agent must not obtain, or seek to obtain, any payment from a person in respect of work done by, or on behalf of, the agent or in respect of any outgoings incurred by the agent unless— (a) the agent holds a written engagement or appointment that is signed by the person (or the person's representative); and (b) before obtaining the person's signature to the engagement or appointment, the agent (or an agents' representative employed by the agent) informed the person (or the person's agent or representative) that the commission to be paid to the agent under the engagement or appointment and any money to be paid by the person in respect of outgoings were subject to negotiation; and (c) the engagement or appointment contains— (i) details of the commission and outgoings that have been agreed; and (ii) if a fee is to be calculated on a percentage basis, a statement of that fee expressed as both a percentage and as the dollar amount that would be payable on the reserve price or any other relevant amount set out in the engagement or appointment; and S. 49A(1)(c)(iii) substituted by No. 41/2003 s. 9(1). (iii) a rebate statement that complies with subsection (4); and S. 49A(1)(c)(iv) amended by No. 52/1998 s. 92. (iv) a statement in a form approved by the Director as to where a complaint concerning any commission or outgoings in the engagement or appointment can be made; and S. 49A(1)(c)(v) amended by No. 52/1998 s. 92. (v) anything else required by the Director; and (d) the agent (or an agent's representative employed by the agent) gave the person a copy of the signed engagement or appointment. (2) An estate agent or agent's representative must not destroy any document required by this section and must retain any such document for the prescribed period. (3) If an estate agent takes any money in respect of commission or outgoings from any money held in trust by the agent on behalf of a person, the agent must give the person written notice of the amount taken, and why it was taken, within 7 days of taking it. S. 49A(4) inserted by No. 41/2003 s. 9(2). (4) A rebate statement complies with this subsection if it is in a form approved by the Director and it contains— (a) a statement of whether or not the agent will be, or is likely to be, entitled to any rebate in respect of— (i) any outgoings; or (ii) any prepayments made by the person engaging or appointing the agent (the ***client***) in respect of any intended expenditure by the agent on the client's behalf; or (iii) any payments made by the client to another person in respect of the work; and (b) if such an entitlement will, or is likely to, occur, details of— (i) the goods or services to which the rebate relates; and (ii) the name of the person providing the rebate; and (iii) the amount of the rebate that will be attributable to the engagement or appointment, or if that amount is not known at the time the statement is made, an estimate (in dollars) of the amount; and (c) a statement that the agent is not entitled to retain any rebate and must not charge the client an amount for any expenses that is more than the cost of those expenses; and (d) any other statements or details required by the regulations. S. 49A(5) inserted by No. 41/2003 s. 9(2). (5) Section 48C also applies for the purposes of subsection (4)(b)(iii). S. 49A(6) inserted by No. 48/2018 s. 53. (6) An estate agent whose rebate statement contained in an engagement or appointment is in a form approved by the Director does not fail to comply with subsection (4) merely because the rebate statement does not contain— (a) the statement referred to in subsection (4)(a); or (b) the statement referred to in subsection (4)(c). S. 49A(7) inserted by No. 48/2018 s. 53. (7) Subsection (6) applies only to a rebate statement contained in an engagement or appointment entered into before the day after the day on which the **Justice Legislation Miscellaneous Amendment Act 2018** receives the Royal Assent. See Division 3 of Part IX.