The Property Occupations Act 2014 (“the New Act”) replaces the Property Section of the Property Agents and Motor Dealers Act 2000 (“the Old Act”) which commenced on 1 December 2014. The Motor Dealers and Chattel Auctioneers Act 2014, the Debt Collectors (Field Agents and Collection Agents) Act 2014 and the Agents Financial Administration Act 2014 replace the further provisions in the Old Act as to motor dealers, debt collectors and trust accounting and other financial requirements of agents.
The New Act removes the reference to the form 30C warning statement which no longer exists and the form 32A lawyer’s certificate which also no longer exists. The list of prescribed forms are contained within the Office of Fair Trading website.
The definitions of terms are similar to those contained in the Old Act as to agent’s listings and property. The appointment of a real estate agent is contained within section 102 of the New Act. The requirements as to appointment are contained within section 102 of the New Act being the appointing under sub-section 2 including a general appointment as detailed in section 104 including particulars as to the service, the charges or commission payable, when they are payable, expenses to be payable, discounts, rebates or commission that are applicable and any condition, limitation or restriction on service. There are other limitations contained in section 105 and 106. Appointment of an auctioneer and specific requirements are contained within section 107 including the date of the auction.
Section 110 provides a limitation as to the period of agency being a combined amount of not more than 90 days (excluding commercial sale appointments).
The revocation of appointment can be undertaken for giving a period of not less than 30 days’ written notice unless the parties agree to an earlier date (see section 114 of the New Act). Disclosures must be made to prospective buyers in accordance with section 157 of the New Act and 158 in the case of property developers. Section 165 of the New Act provides that the five (5) business days statutory cooling off period must be written conspicuously on the contract. These words must be written on the same page as the place in which the buyer signs the contract and which indicates the buyer’s intention to be bound by the contract. This would ordinarily be on the substantive signature page. Further prior to listing a property for sale, it is incumbent upon a real estate agent to verify the ownership of the property and the real property description (see regulation 19 contained within the Property Occupations Regulations 2014). One can only assume that this should be undertaken by way of a registered search, namely through the Department of Titles. A reference to RP Data or Price Finder may not be taken to be reasonable steps to verify ownership.
Further if a real estate agent is appointed to sell, purchase or exchange or lease a property, they must take reasonable steps to verify the facts material to the sale, purchase, exchange or lease that a prudent estate agent would have found out or verified to avoid an error, omission, exaggeration or misrepresentation (see regulation 20(3) of the Property Occupations Regulation 2014). It is clear that the duty or obligation as to errors is then cast firmly upon the real estate agent.
Further, the real estate agent must prior to accepting an appointment take reasonable steps to find out whether the client has already appointed another agent to act as property agent to perform this service (see regulation 21 of the Property Occupations Regulation 2014). This regulation has impact having regard to the sub-regulation thereafter which provides that the new agent must not accept an appointment if the new agent knows that there is an existing agent appointed to perform the service and the client will pay a commission for each appointment. (See regulation 21(3) of the Property Occupations Regulation 2014).
A confirming statement is required by the client in this regard, see sub-regulation 4. In respect of the forms, the form 20A, form 21A, form 22A, form 23, form 24A, form 25 and form 26 have been replaced by the form 6 appointment of property agent. The form 28 disclosure of beneficial interest to seller has been replaced by the form 7 disclosure of beneficial interest to the seller, the form 27C to seller selling agent’s disclosure to buyer has been replaced by form 8 disclosure to prospective buyer. The formS 30C and 32A have been deleted.
Should you have any questions or queries as to the current processes required by real estate agents or the requirements for a buyer or seller, then please contact Joseph O’Hare of our office who is able to assist you.
Please note that this article is simply a brief and segmented particular overview as to the items that are referred to. It is not intended to be and is not an advice, assessment or explanation of the new legislation or of the old legislation.
Prior to reliance upon the information, it is necessary that you obtain specific advice in respect of any matter referred to herein.