Victorian Consolidated Legislation

Estate Agents Act 1980 - SECT 55

Restriction on agent purchasing property

55. Restriction on agent purchasing property



(1) An estate agent shall not whether directly or indirectly or by himself or
any partner or agent's representative purchase or be in any way concerned or
beneficially interested in the purchase of any real estate or business which
he is commissioned by any principal to sell.

Penalty: 120 penalty units.

(2) Any person who is convicted of an offence against subsection (1) shall, in
addition to any penalty imposed by the court, be ordered by the court to
account for and pay over to his principal all profits resulting or which in
the opinion of the court may result from the purchase and any subsequent
dealings with that real estate or business.

(3) An employee of an estate agent shall not whether directly or indirectly
purchase or be in any way concerned or beneficially interested in the purchase
of any real estate or business which his employer is by any owner thereof
commissioned to sell.

Penalty: 120 penalty units.

(4) Any person who is convicted of an offence against subsection (3) shall in
addition to any penalty imposed by the court, be ordered by the court to
account for and pay over to his employer's principal all profits resulting or
which in the opinion of the court may result from the purchase and any
subsequent dealings with that real estate or business.

(5) An estate agent, a partner of an estate agent, an agent's representative
or any other employee of an estate agent shall not accept title to any
property which the estate agent is commissioned by any principal to sell.

Penalty: 120 penalty units.

(6) Any person who is convicted of an offence against subsection (5) shall in
addition to any penalty imposed by the court, be ordered by the court to
transfer title in the property to the estate agent's principal or to account
for and pay over to the principal all profits resulting or which in the
opinion of the court may result from the acceptance of title and any
subsequent dealings with that property.

(7) An estate agent shall not charge any commission to and shall repay any
commission paid by the principal in respect of any real estate or business
which he is commissioned to sell in any case where in relation thereto he has
been found guilty of an offence against subsection (1).

(8) For the purposes of this section, an estate agent or employee shall be
deemed to be beneficially interested in the purchase of real estate or a
business if the purchase is made by or on behalf of-

   (a)  in the case of an estate agent-

   (i)  the estate agent or the spouse or domestic partner, parent, brother,
        sister or child of that estate agent;



   (ii) a corporation body or association of persons or firm or partnership
        carrying on business for profit or gain of which the estate agent or
        the spouse or domestic partner, parent, brother, sister or child of
        the estate agent is a member;

   (iii) where the estate agent is a corporation, that corporation or any
        member thereof or the spouse or domestic partner, parent, brother,
        sister or child of any member thereof; or

   (iv) where the estate agent carries on business as such as a member of a
        firm or partnership-any other person who is a member of that firm or
        partnership, or the spouse or domestic partner, parent, brother,
        sister or child of that person;

   (b)  in the case of an employee-



   (i)  the employee or the spouse or domestic partner, parent, brother,
        sister or child of the employee; or

   (ii) a corporation, body or association of persons or firm or partnership
        carrying on business for profit or gain of which the employee or the
        spouse or domestic partner, parent, brother, sister or child of the
        employee is a member.

(9) This section does not apply if property is purchased by a person who is a
shareholder and not an employee of-

   (a)  an estate agent which is a corporation the shares of which are listed
        on an Australian Stock Exchange or which is a prescribed corporation;
        or

   (b)  a stock and station agent which is a co-operative registered under the
        Co-operatives Act 1996 or a co-operative company within the meaning of
        Division 9 of Part III of the Income Tax Assessment Act 1936 of the
        Commonwealth that is taken to be registered in Victoria.

(10) Despite subsection (8)(b), this section does not apply to the spouse or
domestic partner, parent, brother, sister or child of an employee if-

   (a)  the employee is not a licensed estate agent or an agent's
        representative; and

   (b)  the principal is informed in writing of the prospective purchaser's
        relationship to the employee and agrees to the purchase in the form
        approved by the Director before the purchaser signs any document that
        legally binds, or that is intended to legally bind, the purchaser in
        respect of the sale.

(11) In the case of a sale by auction, if the principal agreed to the purchase
in the form approved by the Director, the principal may withdraw from the
contract within 72 hours of signing the contract by giving a written notice of
withdrawal to the other party to the contract.





(12) If this right of withdrawal is exercised-

   (a)  the principal is not liable to the other party to the contract in any
        way; and

   (b)  the person holding any deposit paid by the other party must return it
        immediately to the other party; and

   (c)  the principal is not liable to pay the estate agent any commission or
        outgoings in respect of the failed sale.

(13) If a principal signs the form approved by the Director under subsection
(10), the estate agent must send a copy of the signed form to the Director
within 7 days of the signing.

Penalty: 25 penalty units.

(14) A person may make a purchase that would otherwise be prohibited by this
section if-

   (a)  the person applies in writing to the Director before the contract of
        sale is signed for permission to make the purchase; and

   (b)  the Director notifies the person in writing that the Director is
        satisfied that the purchase would not be contrary to the interests of
        the owner of the real estate or business to be sold if the conditions
        (if any) imposed by the Director are complied with.

(15) If a person makes a purchase after receiving a notice under subsection
(14)(b), the person must comply with any conditions imposed by the Director
that are set out in the notice.

Penalty: 25 penalty units.