LAND AND BUSINESS (SALE AND CONVEYANCING) ACT 1994 - SECT 20
LAND AND BUSINESS (SALE AND CONVEYANCING) ACT 1994 - SECT 20
(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
(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.
Maximum penalty: $5 000.
(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.
Maximum penalty: $5 000.
Expiation fee: $315.
(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.
Maximum penalty: $5 000.
(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.
Maximum penalty: $5 000.
Expiation fee: $315.
(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.
Maximum penalty: $5 000.
Expiation fee: $315.
(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.
Maximum penalty: $5 000.
Expiation fee: $315.
(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.
Maximum penalty: $5 000.
(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.
Maximum penalty: $5 000.
(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).