Part 4Special requirements relating to agents and sales representatives

Part 4—Special requirements relating to agents and sales representatives 20—Authority to act as agent (1) An agent must not act on behalf of a vendor in the sale of residential land unless the agent has been authorised to so act by an agreement (a sales agency agreement) that— (a) specifies the agent's genuine estimate of the selling price expressed without any qualifying words or symbols as a single figure; and (b) specifies the selling price sought by, or acceptable to, the vendor expressed without any qualifying words or symbols as a single figure; and (c) specifies— (i) the manner of sale (for example, by auction, private treaty or tender); and (ii) the duration of the agreement (not exceeding the prescribed number of days); and (iii) the rights of the vendor to terminate the agreement; and (iv) the services, including advertising and marketing, to be provided for the vendor by the agent or a third person that will be separately charged for by the agent, the amounts to be charged for the services and the time for payment of the amounts; and (v) the nature and source and, if known, the amount or value of any rebate, discount, refund or other benefit expected to be received by the agent from a third person in relation to services referred to in subparagraph (iv); and (vi) whether the agreement is a sole agency agreement; and (vii) whether the agent has authority to accept an offer for the land on behalf of the vendor; and (d) is dated and signed by the vendor and the agent; and (e) complies with the regulations. (2) An agent must not make a sales agency agreement unless the agent has first given the vendor— (a) a written guide, in a form approved by the Commissioner for the purposes of this section, that explains the vendor's rights and obligations under such an agreement; and (b) details of sales of comparable land and any other information on which the agent will rely in support of his or her estimate of the selling price. (3) An agent must not act on behalf of— (a) a vendor in the sale of land (other than residential land) or a business; or (b) a purchaser in the sale of land or a business, unless the agent has been authorised to so act by instrument in writing signed by the vendor or the purchaser. (4) An agent who has been authorised to act on behalf of a vendor or purchaser under this section must ensure that the vendor or purchaser is given a copy of the signed agreement or instrument immediately, or at a later time within 48 hours as agreed with the vendor or purchaser, after the agreement or instrument has been signed by the vendor or purchaser and delivered to the agent. (5) Subject to subsection (5a), the matters specified or agreed in a sales agency agreement may be varied provided that the variation is in writing and dated and signed by the parties to the agreement. (5a) A sales agency agreement for the sale of residential land by auction may not be varied by increasing the amount specified in the agreement as the selling price sought by, or acceptable to, the vendor. (6) An agent who has been authorised to act on behalf of a vendor or purchaser under this section must ensure that a copy of any variation of the sales agency agreement or instrument is given to the vendor or purchaser immediately, or at a later time within 48 hours as agreed with the vendor or purchaser, after the variation has been signed by the vendor or purchaser and delivered to the agent. (6a) If, in relation to a sales agency agreement, a notice of expiry is given in the prescribed manner to the vendor by the agent who has been authorised to act on behalf of the vendor under the agreement— (a) the vendor may, by notice given to the agent before the date on which the agreement is due to expire, indicate his or her intention not to extend the agreement, in which case the agreement terminates on that date; or (b) if notice is not given under paragraph (a), the following provisions apply, subject to subsection (6b): (i) the agreement may be extended— (A) by agreement between the parties recorded in writing and dated and signed by the parties no earlier than 14 days before the agreement is due to expire; and (B) for a period not exceeding the number of days prescribed by regulation; (ii) if the agreement is not extended under subparagraph (i), it is taken to have been extended by force of this paragraph for the period prescribed by regulation from the time at which it would otherwise have expired. (6b) A sales agency agreement cannot be extended more than once. (6c) If a notice of expiry is not given by an agent to a vendor in accordance with subsection (6a), the sales agency agreement terminates on the date on which it is due to expire and cannot be extended. (6d) An agent who has been authorised to act on behalf of a vendor under this section must ensure that a copy of the record of any extension of the sales agency agreement under subsection (6a)(b)(i) is given to the vendor immediately, or at a later time within 48 hours as agreed with the vendor, after it has been signed by the vendor and delivered to the agent. (6e) A vendor may, by notice in writing given to the agent at any time during a period of extension of a sales agency agreement, terminate the agreement without specifying any grounds. (6f) If a sales agency agreement between a vendor and an agent for the sale of residential land by auction is terminated before its expiry or is varied by reducing the duration of the agreement, the agent must not make a new sales agency agreement with the vendor for the sale by auction of the same land specifying, as the selling price sought by, or acceptable to, the vendor, an amount that is greater than that specified in the agreement before its termination or variation unless the period specified as the duration of the agreement before its termination or variation has elapsed. (7) An agent must not demand, receive or retain commission or expenses in respect of the sale or purchase of land or a business if the agent has contravened or failed to comply with a requirement of this section in acting on behalf of the vendor or purchaser. (8) Commission or expenses received or retained by an agent in contravention of this section may be recovered, as a debt, from the agent by the person by whom it was paid. (9) An agent must keep a copy of— (a) each sales agency agreement, and any variation or extension of the sales agency agreement, to which the agent has become party; and (b) each instrument by which the agent has been authorised to act on behalf of a vendor or purchaser as referred to in subsection (3). (10) For the purposes of this section, a notice of expiry, in relation to a sales agency agreement, will be taken to have been given to the vendor in the prescribed manner if it is given to the vendor no earlier than 14 days before the agreement is due to expire. (11) In this section— notice of expiry, in relation to a sales agency agreement, means a notice in writing— (a) reminding the vendor of the date on which the agreement is due to expire and the vendor's rights to terminate the agreement; and (b) setting out the vendor's rights to extend the agreement and the effect of subsections (6a), (6b), (6d) and (6e). 21—Requirements relating to offers to purchase residential land (1) If a person communicates to an agent an offer for residential land that the agent is authorised to sell on behalf of a vendor, the agent must ensure that the following requirements are satisfied: (a) all reasonable steps must be taken to have the offer recorded in writing, in a form containing the details required by the regulations, and signed by the offeror; (b) subject to subsection (5), the offer must not be passed on to the vendor unless it is so recorded and signed; (c) the offeror must, if the regulations so require, be given a notice in writing containing the information prescribed by the regulations before signing the offer; (d) a copy of the signed offer must be given to the vendor within 48 hours or at a later time agreed with the vendor; (e) details of the offer must not be disclosed to a person other than the vendor or, on request, an authorised officer; (f) a copy of the signed offer must be kept by the agent. (2) If a person communicates to a sales representative employed by an agent an offer for residential land that the agent is authorised to sell on behalf of a vendor, the sales representative— (a) must take all reasonable steps to have the offer recorded in writing, in a form containing the details required by the regulations, and signed by the offeror; and (b) subject to subsection (5), must not pass the offer on to the vendor unless it is so recorded and signed; and (c) must, if the regulations so require, give the offeror a notice in writing containing the information prescribed by the regulations before the offeror signs the offer; and (d) must give a copy of the signed offer to the vendor within 48 hours or at a later time agreed with the vendor; and (e) must not disclose any details of the offer to a person other than the vendor or, on request, an authorised officer; and (f) must enable a copy of the signed offer to be kept as part of the agent's records. (2a) Despite subsections (1)(e) and (2)(e), an agent (or a sales representative employed by the agent) may disclose to a purchaser the fact that an offer has been made if the following requirements are satisfied: (a) the amount of the offer and any terms or conditions of the offer must not, at any time before the sale, be disclosed to the purchaser; (b) a notice in writing confirming the fact that the offer was made must be provided, on request, to the purchaser; (c) a copy of the notice must be kept as part of the agent's records. (2b) An agent (or a sales representative employed by the agent) who, in making a disclosure of a kind referred to in subsection (2a), contravenes or fails to comply with a requirement specified in that subsection is guilty of an offence. (3) Nothing in this section prevents details of an offer received by an agent (or a sales representative employed by the agent) from being communicated between persons engaged in the business of the agent as reasonably required for the purposes of the business. (4) The vendor must, at the request of an agent or sales representative, as soon as practicable after receiving a copy of a signed offer, give the agent a notice in writing acknowledging its receipt. Maximum penalty: $1 250. (5) An agent authorised to sell residential land on behalf of a vendor, and any sales representative employed by the agent, must, before taking any step on behalf of the vendor directed towards acceptance of an offer for the land— (a) ensure that the vendor has been given copies of all written offers for the land that have been received by the agent; and (b) if a person has communicated to the agent or sales representative an offer for the land and there has been insufficient time to have the offer recorded in writing in accordance with subsection (1) or (2), ensure that the vendor has notice of the proposed offer. (6) This section applies with modifications prescribed by the regulations in a case where the agent has authority to accept an offer for the land on behalf of the vendor. (7) A contravention of this section does not affect the validity of an offer or a contract for the sale of the land. 22—Person signing document to be given copy (1) If a person signs an offer, contract or agreement, or a document intended to constitute an offer, contract or agreement, relating to a transaction that has been negotiated wholly or in part by an agent, the agent must ensure that the person is given a copy of the signed offer, contract, agreement or document immediately after the document has been signed by the person and delivered to the agent. (2) If a person signs an offer, contract or agreement, or a document intended to constitute an offer, contract or agreement, relating to a transaction that has been negotiated wholly or in part by a sales representative, the sales representative must give the person a copy of the signed offer, contract, agreement or document immediately after the document has been signed by the person and delivered to the sales representative. 23—Agent not to receive commission if contract avoided or rescinded (1) An agent must not demand, receive or retain commission in respect of the sale or purchase of land or a business if the contract by which the transaction is to be effected is rescinded or avoided under this Act. (2) Subsection (1) does not apply if— (a) the contract is rescinded under Part 2; and (b) the parties to the contract subsequently enter into another contract for the sale or purchase of the land or business; and (c) commission would, apart from this section, have been payable to the agent in respect of the subsequent contract. (3) Commission received or retained by an agent in contravention of this section may be recovered, as a debt, from the agent by the person by whom it was paid. 24—Agent not to lodge caveat for sums owing by client An agent who has been authorised to act on behalf of a vendor in the sale of residential land must not lodge a caveat over the land in order to secure payment of a debt owing to the agent by the vendor in connection with the sale of the land. 24A—Representations as to likely selling price in marketing residential land (1) For the purposes of this section— (a) a representation is made in marketing land if— (i) it is made in an advertisement for the sale of the land that is published, or caused to be published, by the agent; or (ii) it is made (whether orally or in writing) to a purchaser who has not commenced negotiations for the purchase of the land; and (b) information in an advertisement is a representation as to a likely price or likely price range for the sale of land if it could be reasonably taken to be such; and (c) a statement as to the price actually sought by, or acceptable to, the vendor of land is not a representation as to a likely price for the sale of the land provided that the amount stated as the price is the same as the selling price sought by, or acceptable to, the vendor as expressed in the sales agency agreement at the time of the statement; and (d) prescribed minimum advertising price, in relation to a representation, is the amount that is the greater of— (i) the agent's estimate of the selling price as expressed in the sales agency agreement at the time of the representation; or (ii) the selling price sought by, or acceptable to, the vendor as expressed in the sales agency agreement at the time of the representation. (2) In marketing residential land that an agent is authorised to sell on behalf of a vendor, the agent or a sales representative employed by the agent must comply with the following: (a) if the agent or sales representative makes a representation as to a likely price for the land— (i) the price must be expressed as a single figure without any qualifying words or symbols; and (ii) the price must not be less than the prescribed minimum advertising price; (b) if the agent or sales representative makes a representation as to a likely price range for the land— (i) the price range must be expressed using 2 single figures in combination only with such words or symbols as are necessary to denote a range1 with the first figure constituting the lower limit of the range and the second figure constituting the upper limit of the range; and (ii) the lower limit of the range must not be less than the prescribed minimum advertising price; and (iii) the upper limit of the range must not exceed 110% of the lower limit of the range. Note—