Property Occupations Act 2014

• Real estate agents and their businesses: must hold the relevant licence and comply with conduct, appointment, and disclosure requirements.
• Auctioneers: must hold an auctioneer licence (subject to exemptions in s. 5 for court-ordered sales and certain other sales).
• Resident letting agents: must hold a resident letting agent licence; relevant for managers of residential body corporate schemes.
• Real estate salespersons: must be registered under Part 5 and must work under a licensed real estate agent.
• Property buyers: benefit from the cooling-off period in Part 7 for residential property contracts.
• Sellers and landlords: must appoint agents in writing and are protected from agents claiming undisclosed commissions or rewards above the agreed amount.
• Property developers and marketeers: subject to disclosure requirements in Part 6.
• Insolvency practitioners: where a licensed real estate agent enters insolvency, the Act's provisions on administrators, liquidators, and controllers apply under s. 6.
• The chief executive (Office of Fair Trading): administers the licensing, registration, and disciplinary regime.

Licensing and registration:

• A person must hold the relevant licence or registration before performing the relevant activities. Performing activities without a licence can deny the right to recover commission under s. 89.
• Licence holders must comply with ongoing conditions and renewal requirements.
• Licensees must lodge audit reports in the form required under the Agents Financial Administration Act 2014 (s. 34 of that Act); failure to do so is a ground for immediate suspension under s. 76(1)(c) of this Act.

Return of cancelled licence:

• s. 77(2): A licensee must return their licence to the chief executive within 14 days after the happening of an event causing immediate cancellation, unless the licensee has a reasonable excuse. Maximum penalty: 100 penalty units.

Appointment requirements (Part 4):

• Property agents and resident letting agents must hold a written appointment from the client before performing services. The appointment must specify the commission or reward, the period of the appointment, and other prescribed details.

Disclosure obligations (Part 6):

• s. 153 and following: licensees with a beneficial interest in a property being sold must disclose that interest to the client before accepting an appointment.
• Property developers and marketeers have additional disclosure obligations under Part 6.

Commission and reward restrictions:

• s. 88(2): A property agent or resident letting agent must not claim commission worked out on an amount more than the actual sale price, actual rental, or actual amount collected. Maximum penalty: 100 penalty units.
• s. 89: A person is not entitled to sue for, recover, or keep a reward or expense for performing property agent activities unless they held the relevant licence or registration at the time.
• s. 90: A person is not entitled to claim a reward above the amount stated in their appointment.
• s. 91: On conviction for an offence against ss 88(2), 89(2), or 90(3), the court may order repayment of excess commission to the client.

Cooling-off (Part 7):

• s. 166: A buyer under a relevant contract has a cooling-off period of five business days. The period starts when the buyer receives a copy of the signed contract from the seller.

Chief executive:

• Power to issue, renew, restore, suspend, and cancel licences.
• s. 76: Power to immediately suspend a licence where the chief executive reasonably considers the licence was obtained through materially incorrect or misleading information, or there is an irregularity or deficiency in the licensee's trust account, or the licensee has failed to file an audit report, or a receiver is appointed under the Agents Financial Administration Act 2014.
• Power to impose conditions on licences.
• Power to investigate complaints about licensees.
• Part 6: Power to authorise disclosure of confidential information to the extent necessary for administration of the Act.

QCAT (Part 9):

• Power to hear and determine disciplinary proceedings against licensees and salespersons.
• Power to make orders including requiring repayment of money, imposing conditions, suspending or cancelling licences.

Courts (Part 10):

• Power to grant injunctions restraining contraventions of the Act.
• Power to accept undertakings in lieu of injunctions.
• Power to make preservation of assets orders.
• Power to impose civil penalties for contraventions of civil penalty provisions.

Inspectors (Fair Trading Inspectors Act 2014):

• Inspectors appointed under the Fair Trading Inspectors Act 2014 exercise powers under that Act and, additionally, any powers under this Act. Inspector powers include entering premises, inspecting records, and requiring information.

Criminal penalties:

• s. 77(2): failure to return cancelled licence: 100 penalty units.
• s. 88(2): claiming commission above the actual sale price or rent: 100 penalty units.
• Various other offences in Part 11: maximum penalties specified in each section.

Civil penalties (Part 10):

• Civil penalty provisions in Part 10 allow the chief executive or QCAT to impose civil penalties for certain contraventions without criminal conviction.

Commission repayment orders (s. 91):

• Courts can order a convicted person to repay excess commission to the client on the balance of probabilities.

Licence consequences:

• s. 77: Automatic immediate cancellation of licence on: conviction of a serious offence; insolvency (if an individual); or winding-up or deregistration (if a corporation).

Cooling-off period:

1. Buyer and seller execute relevant contract.
2. Seller provides buyer with a signed copy of the contract.
3. Cooling-off period of five business days begins on the day the buyer receives the signed copy.
4. The period ends at 5 pm on the fifth business day.
5. If the buyer terminates within the cooling-off period, they are entitled to a refund of amounts paid, less any applicable termination amount.

Licensing:

1. Application made to the chief executive in the approved form with required documents.
2. Chief executive assesses application against eligibility criteria (including fit and proper person requirements).
3. Licence issued or refused.
4. Annual or periodic renewal required.
5. Audit report lodged within the required period after each audit period.
6. Complaints or breaches investigated by the chief executive or inspectors.
7. Disciplinary action through QCAT proceedings (Part 9) or summary offence prosecution.

Immediate suspension (s. 76):

• The chief executive can suspend a licence immediately on the grounds specified. The suspension takes effect on the giving of notice to the licensee. The licensee has a right to seek review of the suspension.

• Agents Financial Administration Act 2014 (Qld): directly connected through the trust account regime. The trust account requirements, receiver provisions (s. 47 of that Act), and audit obligations (s. 34 of that Act) are triggers for licence suspension under s. 76 of this Act.
• Fair Trading Inspectors Act 2014 (Qld): provides common inspector powers used alongside this Act's enforcement provisions (s. 4).
• Corporations Act 2001 (Cth): s. 6 of this Act applies to administrators, liquidators, and controllers appointed under the Corporations Act over licensed real estate agents or their businesses.
• State Penalties Enforcement Registry: exemption in s. 5(1)(b) for sales made by a person obeying an order of the court or registrar of the SPER for the recovery of a fine.
• Queensland Civil and Administrative Tribunal Act 2009 (Qld): QCAT is the tribunal for disciplinary proceedings under Part 9.

Acting without an appointment prevents commission recovery:

Section 89 denies the right to sue for, recover, or keep a reward for property agent activities performed without the required licence or registration. Even a licensed agent who has not been properly appointed under Part 4 may face difficulty recovering commission if the appointment does not comply with the required content.

Immediate cancellation is automatic:

Section 77(1) provides that a licensee's licence is cancelled automatically on the happening of specified events (conviction of a serious offence, insolvency, winding-up). There is no discretion. The cancellation is not a disciplinary decision that can be reviewed in the usual way; it is a statutory consequence.

Cooling-off applies only to residential property:

The five-business-day cooling-off period in Part 7 applies to relevant contracts, which are contracts for the sale of residential property. Commercial property contracts and property at auction are not subject to the cooling-off provisions. Buyers at auction have no cooling-off right.

Excess commission must be repaid under court order:

Section 91 allows a court to order repayment of excess commission on conviction. This is separate from the civil penalty regime and operates as an additional remedy. The amount ordered is based on the balance of probabilities standard, which is lower than the criminal standard of proof.

Audits are mandatory and non-compliance triggers suspension:

Section 76(1)(c) allows the chief executive to immediately suspend a licence if the licensee has failed to file an audit report as required under the Administration Act s. 34. The obligation to audit applies even if the licensee held no trust funds during the audit period; in that case, a statutory declaration is required instead (see the audit provisions cross-referenced in the Act).

Example 1: Real estate agent acting without appointment

A licensed real estate agent introduces a buyer to a seller and facilitates a sale without having obtained a written appointment from the seller in the form required under Part 4. Under s. 89, the agent is not entitled to sue for, recover, or keep a reward for performing that activity because the agent was not properly appointed at the time. The seller can refuse to pay and the agent has no legal recourse.

Example 2: Buyer exercising cooling-off right

A first home buyer signs a contract to purchase a residential property for $750,000. Three days later, the buyer receives financial advice that the purchase is unwise and wants to exit. Under s. 166, the buyer is within the five-business-day cooling-off period. The buyer gives notice of termination to the seller. The buyer is entitled to a refund of the deposit paid, less any applicable termination amount specified in the contract or regulations.

Example 3: Trust account irregularity and immediate suspension

The chief executive receives a complaint that a real estate agent's trust account has a shortfall. The chief executive reasonably considers that an irregularity or deficiency exists in the trust account. Under s. 76, the chief executive immediately suspends the agent's licence. The agent must cease operating until the suspension is lifted or reversed. A receiver may be appointed under the Agents Financial Administration Act 2014 to manage the trust account during the investigation.

Example 4: Commission overcharging

A real estate agent charges commission calculated on a sale price of $1.1 million when the actual contract price, after price reductions agreed between the parties, was $950,000. Under s. 88(2), the agent has claimed commission on an amount above the actual sale price. This is an offence carrying a maximum penalty of 100 penalty units. If convicted, the court may also order repayment of the excess commission under s. 91.

Example 5: Automatic licence cancellation

A licensed real estate agent is convicted of fraud (a serious offence). Under s. 77(1)(a), the licence is immediately cancelled on conviction. The former licensee must return the licence to the chief executive within 14 days under s. 77(2). The former licensee may not perform real estate activities until they obtain a new licence, which would require demonstrating that they are a fit and proper person despite the conviction.