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TASMANIA
__________
PROPERTY AGENTS AND LAND TRANSACTIONS
AMENDMENT BILL 2009
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
PART 2 PROPERTY AGENTS AND LAND TRANSACTIONS ACT
2005 AMENDED
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 9 amended (Employment of property managers and
assistant property managers)
6. Section 10 amended (Employment of property consultants by
real estate agents)
7. Section 18 amended (Appointment of real estate agents to be in
writing)
8. Section 19 amended (Appointment of property managers to be in
writing)
9. Section 33 amended (General auctioneering business to be
carried on by general auctioneer or real estate agent)
10. Section 59 amended (Part 3 of Register)
11. Section 81 amended (Duty of Board)
12. Section 182 amended (Interpretation of Part 10)
13. Section 183 substituted
[Bill 51]-VIII
183. Application of Part
14. Part 10, Division 2: Heading amended
15. Section 185 amended (Application of Division)
16. Section 186 amended (Vendors to provide relevant disclosure
documents)
17. Section 187 amended (Location of disclosure documents to be
contained in advertisements)
18. Section 188 amended (Vendors to provide relevant disclosure
documents before public auction)
19. Section 189 amended (Contract voidable if relevant disclosure
documents not provided)
20. Section 190 amended (Relevant disclosure documents)
21. Section 191 amended (Vendor statements)
22. Section 192 amended (Warning notices)
23. Section 193 repealed
24. Section 196 amended (Liability of agent)
25. Section 197 amended (Certain conditions to be implied in
contract)
26. Section 203 amended (Right to rescind contract for sale of
residential property cooling-off rights)
27. Section 206 amended (Contracts, &c., to avoid requirements of
this Part void)
PART 3 PROPERTY AGENTS AND LAND TRANSACTIONS ACT
2005 FURTHER AMENDED
28. Principal Act
29. Section 64 amended (Qualifications for registration as real estate
agent)
30. Section 65 amended (Qualifications for registration as property
manager)
31. Section 66 amended (Qualifications for registration as general
auctioneer)
2
PROPERTY AGENTS AND LAND TRANSACTIONS
AMENDMENT BILL 2009
(Brought in by the Minister for Corrections and Consumer
Protection, the Honourable Lisa Maria Singh)
A BILL FOR
An Act to amend the Property Agents and Land
Transactions Act 2005
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Property Agents
and Land Transactions Amendment Act (No. 2)
2009.
2. Commencement
(1) Except as provided by this section, this Act
commences on the day on which this Act
receives the Royal Assent.
(2) The provisions of Part 3 commence on a day or
days to be proclaimed.
[Bill 51] 3
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
s. 3 Part 2 Property Agents and Land Transactions Act 2005 Amended
PART 2 PROPERTY AGENTS AND LAND
TRANSACTIONS ACT 2005 AMENDED
3. Principal Act
In this Part, the Property Agents and Land
Transactions Act 2005* is referred to as the
Principal Act.
4. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended by
inserting after the definition of "name" the
following definition:
"notice of intention" means a notice referred
to in section 9(2)(b) or (3)(b) or 10(1)(b)
or (2)(b);
5. Section 9 amended (Employment of property
managers and assistant property managers)
Section 9 of the Principal Act is amended as
follows:
(a) by omitting subsections (2) and (3) and
substituting the following subsections:
(2) A property manager named in
Part 2(1) of the Register must not
*No. 75 of 2005
4
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
Part 2 Property Agents and Land Transactions Act 2005 Amended s. 5
employ an individual to carry out
the functions of an assistant
property manager on behalf of the
property manager unless the
individual
(a) is an assistant property
manager; and
(b) has caused to be
published in a newspaper
published in the State and
circulating generally in
the State a notice, in a
form approved by the
Board, stating that the
person intends to be
employed as an assistant
property manager by the
property manager
specified in the notice.
Penalty: Fine not exceeding 500
penalty units.
(3) A property manager named in
Part 2(1) of the Register must not
enter into a contract with a body
corporate for the carrying out, by
an individual who is an employee
or contractor of the body
corporate, of the functions of an
assistant property manager unless
the individual
5
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
s. 5 Part 2 Property Agents and Land Transactions Act 2005 Amended
(a) is an assistant property
manager; and
(b) has caused to be
published in a newspaper
published in the State and
circulating generally in
the State a notice, in a
form approved by the
Board, stating that the
individual intends to be,
or continue to be,
employed or otherwise
contracted as an assistant
property manager by the
body corporate specified
in the notice.
Penalty: Fine not exceeding 500
penalty units.
(3A) For the purposes of
subsections (2) and (3), a notice
is not required to be published
under subsection (2)(b) or (3)(b)
if a notice under either of those
subsections has previously been
published by the relevant person.
(3B) A notice of intention published
under subsection (2)(b) or (3)(b)
by a person (the "intending
employee") is to contain a
statement that another person
may object, within 14 days after
6
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
Part 2 Property Agents and Land Transactions Act 2005 Amended s. 5
the publication of the notice of
intention, to the employment as
an assistant property manager of
the intending employee by giving
written notice of objection to
(a) the Board; and
(b) the intending employee;
and
(c) the property manager or
body corporate specified
in the notice of intention.
(b) by omitting from subsection (5) "or an
assistant property manager employed by
a property manager named in Part 2(1) of
the Register unless the person is a
property manager or an assistant property
manager employed by the property
manager." and substituting "unless the
person is a property manager.";
(c) by inserting the following subsection
after subsection (5):
(6) A person must not, by any means,
hold himself or herself out as
being an assistant property
manager employed or contracted
by a property manager named in
Part 2(1) of the Register, or by a
body corporate, unless the person
is so employed or contracted.
7
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
s. 6 Part 2 Property Agents and Land Transactions Act 2005 Amended
Penalty: Fine not exceeding 500
penalty units.
6. Section 10 amended (Employment of property
consultants by real estate agents)
Section 10 of the Principal Act is amended as
follows:
(a) by omitting subsections (1) and (2) and
substituting the following subsections:
(1) A real estate agent named in Part
1(1) of the Register must not
employ an individual to carry out
the functions of a property
consultant on behalf of the agent
unless the individual
(a) is a property consultant;
and
(b) has caused to be
published in a newspaper
published in the State and
circulating generally in
the State a notice, in a
form approved by the
Board, stating that the
individual intends to be
employed as a property
consultant by the real
estate agent specified in
the notice.
8
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
Part 2 Property Agents and Land Transactions Act 2005 Amended s. 6
Penalty: Fine not exceeding 500
penalty units.
(2) A real estate agent named in Part
1(1) of the Register must not
enter into a contract with a body
corporate for the carrying out, by
an individual who is an employee
or contractor of the body
corporate, of the functions of a
property consultant unless the
individual
(a) is a property consultant;
and
(b) has caused to be
published in a newspaper
published in the State and
circulating generally in
the State a notice, in a
form approved by the
Board, stating that the
individual intends to be,
or continue to be,
employed or otherwise
contracted as a property
consultant by the body
corporate specified in the
notice.
Penalty: Fine not exceeding 500
penalty units.
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Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
s. 6 Part 2 Property Agents and Land Transactions Act 2005 Amended
(2A) For the purposes of
subsections (1) and (2), a notice
is not required to be published
under subsection (1)(b) or (2)(b)
if a notice under either of those
subsections has previously been
published by the relevant
individual.
(2B) A notice of intention published
under subsection (1)(b) or (2)(b)
by a person (the "intending
employee") is to contain a
statement that another person
may object, within 14 days after
the publication of the notice of
intention, to the employment or
contracting of the intending
employee as a property consultant
by giving written notice of
objection to
(a) the Board; and
(b) the intending employee;
and
(c) the real estate agent or
body corporate specified
in the notice of intention.
(2C) The written notice of objection is
to contain the name and address
of the objector and the grounds of
objection.
10
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
Part 2 Property Agents and Land Transactions Act 2005 Amended s. 7
(b) by inserting in subsection (3)(b) "or body
corporate" after "agent";
(c) by omitting from subsection (3)(b)
"employed." and substituting "employed
or contracted.";
(d) by inserting in subsection (4) "or
contracted" after "being a property
consultant employed";
(e) by inserting in subsection (4) "or body
corporate" after "estate agent";
(f) by inserting in subsection (4) "or
contracted" after "is a property
consultant employed";
(g) by omitting from subsection (4) "agent."
and substituting "agent or body
corporate.".
7. Section 18 amended (Appointment of real estate
agents to be in writing)
Section 18 of the Principal Act is amended as
follows:
(a) by omitting paragraph (b) from
subsection (7) and substituting the
following paragraph:
(b) is not expressed to be for a fixed
period or is expressed to be for a
period of more than 30 days
11
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
s. 8 Part 2 Property Agents and Land Transactions Act 2005 Amended
(b) by inserting in subsection (7) "at least"
after "other";
(c) by inserting in subsection (8) "relevant"
after "of the".
8. Section 19 amended (Appointment of property
managers to be in writing)
Section 19 of the Principal Act is amended by
omitting subsection (7) and substituting the
following subsection:
(7) A written appointment mentioned in
subsection (1) that is not expressed to be
for a fixed period, or is expressed to be
for a period of more than 30 days, may
be terminated by either party giving to
the other at least 30 days' written notice
of termination.
9. Section 33 amended (General auctioneering
business to be carried on by general auctioneer or
real estate agent)
Section 33(2) of the Principal Act is amended by
inserting "or otherwise contracted" after
"employed".
12
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
Part 2 Property Agents and Land Transactions Act 2005 Amended s. 10
10. Section 59 amended (Part 3 of Register)
Section 59 of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsection:
(1) Part 3 of the Register is to be divided
into
(a) Division (1), which is to contain
the name and address of each
person who is carrying on general
auctioneering business and show,
in addition, the address of each
place where that person is
carrying on that business and the
name under which that person is
doing so; and
(b) Division (2), which is to contain
the names and addresses of all
other such persons and any other
information approved by the
Board.
11. Section 81 amended (Duty of Board)
Section 81(1) of the Principal Act is amended by
omitting paragraphs (a) and (b) and substituting
the following paragraphs:
(a) to maintain the Register in accordance
with this Act; and
13
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
s. 12 Part 2 Property Agents and Land Transactions Act 2005 Amended
(b) to administer the approval of
qualifications for property agents; and
12. Section 182 amended (Interpretation of Part 10)
Section 182 of the Principal Act is amended as
follows:
(a) by inserting the following definition
before the definition of "authorised
officer":
"advertised for sale off-the-plan"
means advertised for sale as
residential land for which a new
folio of the register of title is
proposed to be created before the
completion of the sale;
(b) by omitting the definition of "purchaser"
and substituting the following
definitions:
"person" includes
(a) an Agency within the
meaning of the State
Service Act 2000; and
(b) a statutory authority; and
(c) any other body of
persons, whether
incorporated or not and
14
Property Agents and Land Transactions Amendment Act (No. 2)
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Act No. of
Part 2 Property Agents and Land Transactions Act 2005 Amended s. 12
whether an emanation of
the Crown or otherwise;
"purchaser" means a person who
purchases or proposes to purchase
land;
"register of title" means the register
of title referred to in section 33 of
the Land Titles Act 1980;
(c) by inserting the following definition after
the definition of "residential agency
agreement":
"residential land" means
(a) a hobby farm that is less
than 50 hectares in area;
or
(b) land intended primarily
for occupation as a place
of residence
whether or not intended only for
rental;
(d) by inserting "a hobby farm that is less
than 50 hectares in area, or" after
"means" in the definition of "residential
property";
(e) by omitting "residence" from the
definition of "residential property" and
substituting "residence,";
15
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
s. 13 Part 2 Property Agents and Land Transactions Act 2005 Amended
(f) by omitting the definition of "vendor"
and substituting the following definition:
"vendor" means a person who sells
land or advertises land for sale.
13. Section 183 substituted
Section 183 of the Principal Act is repealed and
the following section is substituted:
183. Application of Part
(1) This Part does not affect the operation of
the Conveyancing and Law of Property
Act 1884.
(2) For the avoidance of doubt, this Part does
not apply to a disposition of property by
way of
(a) a residential tenancy agreement
within the meaning of the
Residential Tenancy Act 1997 to
which that Act applies; or
(b) a grant of a lease, licence or
easement.
14. Part 10, Division 2: Heading amended
Division 2 of Part 10 of the Principal Act is
amended by inserting in the heading to that
Division "residential" after "vendors of".
16
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
Part 2 Property Agents and Land Transactions Act 2005 Amended s. 15
15. Section 185 amended (Application of Division)
Section 185 of the Principal Act is amended as
follows:
(a) by inserting "residential" after "sales
of";
(b) by inserting in paragraph (a) "residential"
after "the";
(c) by omitting from paragraph (a) "offered"
and substituting "advertised";
(d) by inserting in paragraph (b)
"residential" after "the".
16. Section 186 amended (Vendors to provide relevant
disclosure documents)
Section 186 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)
"offering" and substituting "advertising
residential";
(b) by inserting in subsection (2)
"disclosure" after "relevant";
(c) by omitting subsection (3).
17
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
s. 17 Part 2 Property Agents and Land Transactions Act 2005 Amended
17. Section 187 amended (Location of disclosure
documents to be contained in advertisements)
Section 187 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "relevant"
after "which the";
(b) by inserting in subsection (2) "relevant"
after "and the".
18. Section 188 amended (Vendors to provide relevant
disclosure documents before public auction)
Section 188 of the Principal Act is amended by
omitting "purchaser," and substituting
"purchaser by displaying them prominently,".
19. Section 189 amended (Contract voidable if relevant
disclosure documents not provided)
Section 189 of the Principal Act is amended as
follows:
(a) by omitting subsection (1) and
substituting the following subsection:
(1) A purchaser under a contract for
the sale of residential land may at
any time before settlement
rescind the contract without
18
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
Part 2 Property Agents and Land Transactions Act 2005 Amended s. 19
penalty if the relevant disclosure
documents were not
(a) available to the purchaser
in accordance with
section 186(1); or
(b) given to the purchaser as
required under
section 186(2); or
(c) made available to the
purchaser as required
under section 188.
(b) by omitting from subsection (4)(a)
"solicitor;" and substituting "solicitor or
conveyancer;";
(c) by omitting from subsection (4)(b)
"solicitor" and substituting "solicitor or
conveyancer";
(d) by omitting from subsection (5)(a)
"solicitor;" and substituting "solicitor or
conveyancer;";
(e) by omitting from subsection (5)(b)
"solicitors." and substituting "solicitors
or conveyancers.".
19
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
s. 20 Part 2 Property Agents and Land Transactions Act 2005 Amended
20. Section 190 amended (Relevant disclosure
documents)
Section 190 of the Principal Act is amended as
follows:
(a) by omitting paragraphs (b) and (c) and
substituting the following paragraphs:
(b) in the case of residential land that
is subject to the Land Titles Act
1980 and is not being advertised
for sale off-the-plan, a copy of
the relevant folio of the register
of title; and
(c) in the case of residential land that
is subject to the Land Titles Act
1980 and is not being advertised
for sale off-the-plan, a copy of
the plan, if any, to which the
relevant folio of the register of
title refers; and
(b) by inserting in paragraph (d)
"residential" after "where the";
(c) by inserting in paragraph (d)(i)
"residential" after "statement that the";
(d) by inserting in paragraph (d)(i)
"residential" after "of the";
(e) by inserting in paragraph (d)(iv)
"residential" after "the";
20
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
Part 2 Property Agents and Land Transactions Act 2005 Amended s. 21
(f) by omitting from paragraph (d)(v) "Act;"
and substituting "Act or, if the vendor
has been unable to obtain such a
certificate despite making reasonable
efforts, a statement specifying the
reasons for the failure to obtain the
certificate;".
21. Section 191 amended (Vendor statements)
Section 191 of the Principal Act is amended as
follows:
(a) by omitting paragraph (a) from
subsection (1) and substituting the
following paragraph:
(a) is to contain the prescribed
information and
(i) if a form is prescribed, be
in the prescribed form; or
(ii) if no form is prescribed,
be in a form approved by
the Director; and
(b) by omitting from subsection (2) "agent."
and substituting "agent or employee of a
property agent.".
21
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
s. 22 Part 2 Property Agents and Land Transactions Act 2005 Amended
22. Section 192 amended (Warning notices)
Section 192(1) of the Principal Act is amended
by inserting "residential" after "sale of".
23. Section 193 repealed
Section 193 of the Principal Act is repealed.
24. Section 196 amended (Liability of agent)
Section 196 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1)
"residential" after "purchase the";
(b) by inserting in subsection (2)
"residential" after "purchase the".
25. Section 197 amended (Certain conditions to be
implied in contract)
Section 197 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1)
"residential" after "sale of";
(b) by omitting paragraph (a) from
subsection (1);
22
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
Part 2 Property Agents and Land Transactions Act 2005 Amended s. 26
(c) by inserting in subsection (2)
"residential" after "relevant";
(d) by inserting in subsection (5)
"residential" after "relevant".
26. Section 203 amended (Right to rescind contract for
sale of residential property cooling-off rights)
Section 203 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)(a)
"solicitor;" and substituting "solicitor or
conveyancer;";
(b) by omitting from subsection (2)(b)
"solicitor" and substituting "solicitor or
conveyancer";
(c) by omitting from subsection (3)(a)
"solicitor;" and substituting "solicitor or
conveyancer;";
(d) by omitting from subsection (3)(b)
"solicitors." and substituting "solicitors
or conveyancers.".
27. Section 206 amended (Contracts, &c., to avoid
requirements of this Part void)
Section 206 of the Principal Act is amended by
inserting "residential" after "sale of".
23
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
s. 28 Part 3 Property Agents and Land Transactions Act 2005 Further Amended
PART 3 PROPERTY AGENTS AND LAND
TRANSACTIONS ACT 2005 FURTHER AMENDED
28. Principal Act
In this Part, the Property Agents and Land
Transactions Act 2005* is referred to as the
Principal Act.
29. Section 64 amended (Qualifications for registration
as real estate agent)
Section 64 of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsection:
(1) The name of a person, not being a
company, may be entered in Part 1 of the
Register if the person has the prescribed
qualifications.
30. Section 65 amended (Qualifications for registration
as property manager)
Section 65(1) of the Principal Act is amended by
omitting "satisfies the Board, by examination or
inquiry, that the person has sufficient knowledge
and experience of property management
business to be able to carry on that business."
*No. 75 of 2005
24
Property Agents and Land Transactions Amendment Act (No. 2)
2009
Act No. of
Part 3 Property Agents and Land Transactions Act 2005 Further Amended s. 31
and substituting "has the prescribed
qualifications.".
31. Section 66 amended (Qualifications for registration
as general auctioneer)
Section 66(1) of the Principal Act is amended by
omitting "satisfies the Board, by examination or
inquiry, that the person has sufficient knowledge
and experience of general auctioneering business
to be able to carry on that business." and
substituting "has the prescribed qualifications.".
Government Printer, Tasmania 25