ESTATE AGENTS ACT 1980 - SECT 59 Trust money

ESTATE AGENTS ACT 1980 - SECT 59

S. 59(1) amended by Nos 86/1994 s. 47(zk), 17/2004 s. 10(1), 1/2010 s. 13(1).

    (1)     Every estate agent who as such (whether himself or by an employee or agent's representative) receives or holds any money on behalf of any person in respect of any transaction or who as such holds any money so received as a stakeholder or in trust pending the completion of any transaction—

S. 59(1)(a) amended by No. 29/1989 s. 15(a)(i).

        (a)     shall pay that money into a financial institution (but not into a branch of that financial institution for which the estate agent is responsible for the day to day operation) to a trust account in the name of the agent—

S. 59(1)(a)(i) amended by No. 11/2001 s. 3(Sch. item 24.3).

              (i)     if facilities of an authorised deposit-taking institution are available within sixteen kilometres of the place of business of the agent—before the end of the next business day after the day on which the money is received;

              (ii)     in any other case—before the end of the third business day after the day on which the money is received;

        (b)     shall retain that money in that trust account until paid—

S. 59(1)(b)(i) amended by Nos 29/1989 s. 15(a)(ii), 35/1996 s. 453(Sch. 1 item 28.3).

              (i)     to the persons entitled thereto (including, where the ownership of any chattels stock or book debts has been agreed to be transferred as part of the transaction, any person other than the parties to the transaction who has any right as mortgagee or lienee in any of such chattels stock or book debts) or such persons' legal practitioners or at such persons' direction;

S. 59(1)(b)(ii) repealed by No. 29/1989 s. 15(a)(ii).

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S. 59(1)(c) amended by Nos 9500 s. 12(i)(ii), 86/1994 ss 32(1), 47(zl), 52/1998

s. 95.

        (c)     shall not withdraw or cause any payment to be made from any money paid into a trust account under this subsection unless the withdrawal or payment is made in the form of a trust account cheque or an electronic funds transfer or in such other form as the Director directs in a particular case.

Penalty:     120 penalty units.

S. 59(2) amended by No. 9945 s. 3(1)(Sch. 1 item 17), repealed by No. 1/2010 s. 13(2).

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S. 59(3) amended by Nos 10028 s. 33(a), 29/1989 s. 15(b).

    (3)     All money to be paid into a trust account under subsection (1) shall be kept in a separate current account in a financial institution.

    (4)     Subject to any obligations of the agent as a stakeholder or trustee money so paid into any trust account under this section shall not be available for the payment of any debt or claim of any person other than the persons entitled thereto or be liable to be attached or taken in execution under the order or process of any court at the instance of any such other person.

S. 59(5) amended by No. 29/1989 s. 15(c).

    (5)     Save as otherwise expressly provided in this Act a financial institution shall not be under any obligation to control or supervise the operations upon a trust account of any agent or to see to the application by the agent of any money drawn out of the trust account.

S. 59(5A) inserted by No. 10028 s. 33(b), amended by Nos 29/1989 s. 15(d), 86/1994 s. 47(zl), 52/1998

s. 95.

    (5A)     Notwithstanding anything contained in this Act or in any regulation law rule or practice to the contrary, the manager of a financial institution with which an estate agent holds a trust account shall advise the Director of any overdrawing in that account as soon as he knows of it.

S. 59(6) amended by Nos 29/1989 s. 15(e), 86/1994 s. 47(zm)

(i)–(iii).

    (6)     It shall not be necessary for any agent's representative to pay money received by him into a financial institution to a trust account pursuant to this section; but every agent's representative shall pay forthwith to the licensed estate agent for whom he is acting as an agent's representative or to a trust account specified by the agent all money received from or on behalf of any person by the agent's representative in respect of any transaction in his capacity of agent's representative for the licensed estate agent.

S. 59(7) amended by No. 1/2010 s. 13(3).

    (7)     Every estate agent shall—

S. 59(7)(a) amended by Nos 10028 s. 33(c), 29/1989 s. 15(f), 86/1994 s. 47(zl), 52/1998 s. 95.

        (a)     within 14 days of the opening of any trust account under this section, notify the Director in writing of the existence, name and number of that account and the address of the branch of the financial institution at which that account is held;

S. 59(7)(b) amended by Nos 86/1994 s. 47(zl), 52/1998 s. 95.

        (b)     within 14 days of the closure of any trust account under this section, notify the Director in writing of that closure.

Penalty:     60 penalty units.

S. 59(8) inserted by No. 41/2003 s. 37.

    (8)     This section does not apply in relation to—

S. 59(8)(a) amended by No. 45/2018 s. 370.

        (a)     a cheque received by an estate agent from a renter for the amount of bond made payable to the Residential Tenancies Bond Authority established under the Residential Tenancies Act 1997 ;

S. 59(8)(b) amended by No. 17/2004 s. 8(1)(a).

        (b)     a cheque received by an estate agent from a person made payable to another person in prescribed circumstances;

S. 59(8)(c) inserted by No. 17/2004 s. 8(1)(b).

        (c)     a security deposit received by an estate agent acting on behalf of a landlord of retail premises from a tenant.

S. 59(9) inserted by No. 17/2004 s. 8(2).

    (9)     In subsection (8)(c), "landlord", retail premises and tenant have the same meanings as they have in the Retail Leases Act 2003 .

S. 59A inserted by No. 41/2003 s. 38.