Division 1 Requirements for agency agreements
In this Division:commission means remuneration by way of commission, fee, gain or reward for services performed by a licensee in the capacity of licensee.
expenses means any sum or reimbursement for expenses or charges incurred in connection with services performed by a licensee in the capacity of licensee.
55 No entitlement to commission or expenses without agency agreement
(1) A licensee is not entitled to any commission or expenses from a person for or in connection with services performed by the licensee in the capacity of licensee for or on behalf of the person unless:(a) the services were performed pursuant to an agreement in writing (an agency agreement) signed by or on behalf of:(i) the person, and(ii) the licensee, and(b) the agency agreement complies with any applicable requirements of the regulations, and(c) a copy of the agency agreement signed by or on behalf of the licensee was served by the licensee on that person within 48 hours after the agreement was signed by or on behalf of the person.(2) The regulations may make provision for or with respect to regulating the form of agency agreements and the terms, conditions and other provisions that an agency agreement must or must not contain. Without limiting this subsection, the regulations may prescribe one or more standard forms of agency agreement.(3) Without limiting the means by which a copy of the agency agreement may be served on a person, it may be served by means of facsimile transmission or by such other means as the regulations may allow.(4) A court or tribunal before which proceedings are taken by a licensee for the recovery of commission or expenses from a person, or before which a licensee is a respondent to a consumer claim relating to commission or expenses (as referred to in section 36), may order that the commission or expenses concerned are wholly or partly recoverable despite a failure by the licensee to serve a copy of the relevant agency agreement on the person within 48 hours after it was signed by or on behalf of the person.(5) A court or tribunal is not to make such an order unless satisfied that:(a) the failure to serve a copy of the agreement within the required time was occasioned by inadvertence or other cause beyond the control of the licensee, and(b) the commission or expenses that will be recoverable if the order is made are in all the circumstances fair and reasonable, and(c) failure to make the order would be unjust.
56 Approved guide to be provided before agency agreement for residential property signed
(1) A real estate agent must not enter into an agency agreement with a person for the sale of residential property unless the agent has provided the person with a copy of the approved guide not more than 1 month before the agreement is signed by or on behalf of the person.Maximum penalty: 40 penalty units.
(2) In this section:approved guide means a guide with respect to the sale of residential property approved by the Director-General from time to time for the purposes of this section.
(3) A contravention of this section does not affect the validity of the agency agreement.
57 Agency agreement must disclose rebates, discounts and commissions
(1) A licensee is not entitled to any expenses from a person for or in connection with services performed by the licensee in the capacity of licensee for or on behalf of the person in connection with a real estate transaction unless the agency agreement pursuant to which the licensee performs those services contains a statement:(a) identifying the source of all rebates, discounts or commissions that the licensee will or may receive in respect of those expenses, and(b) specifying the estimated amount of those rebates, discounts or commissions (to the extent that the amount can reasonably be estimated).(2) This section does not apply in respect of a real estate transaction relating to commercial land, being land used or intended to be used solely or principally for commercial, business or industrial purposes, but not including land used or intended to be used solely or principally for agricultural or pastoral purposes.
58 Prohibition against listing residential or rural land subject to sole or exclusive agency
(1) A licensee must not enter into an agency agreement with a person in respect of the sale or purchase of residential property or rural land by the person if:(a) the agreement provides for an entitlement to commission in respect of services to be provided at a time when the property or land is or is to be the subject of a sole agency agreement or exclusive agency agreement with another licensee for the provision of those services, and(b) the licensee knows or has reasonable cause to suspect that the person has entered into that sole agency agreement or exclusive agency agreement.(2) A licensee must not solicit or encourage a person to enter into an agency agreement with the licensee if the licensee is prohibited from entering into the agreement by this section.Maximum penalty:
(a) 200 penalty units in the case of a corporation, or(b) 100 penalty units in any other case.(3) A licensee is not entitled to any commission or expenses from a person for or in connection with services performed by the licensee pursuant to an agency agreement entered into by the licensee in contravention of this section.(4) In this section:commission includes fee, gain and reward.
exclusive agency agreement means an agency agreement under which an agent agrees to act for the seller or buyer (the client) on the sale or purchase of property and that provides for the agent to be entitled to commission on the happening of an event whether or not the agent is the effective cause of the happening of the event and whether or not the client is the effective cause of the happening of the event.
sole agency agreement means an agency agreement under which an agent agrees to act for the seller or buyer (the client) on the sale or purchase of property and that provides for the agent to be entitled to commission on the happening of an event (whether or not the agent is the effective cause of the happening of the event) unless the client is the effective cause of the happening of the event.
Division 2 Cooling-off period for residential or rural agency agreements
59 Cooling-off period for residential or rural agency agreements
(1) There is to be a cooling-off period for every agency agreement in respect of the sale of residential property or rural land.(2) The cooling-off period commences when the agency agreement is signed and ends at 5 pm on the next day that is a business day or a Saturday.(3) An agency agreement is signed when it is signed by or on behalf of the person (the client) for whom services are to be performed under the agreement. If there is more than one client, the agreement is signed when the last client to sign signs the agreement.(4) The cooling-off period may be extended by a provision of the agency agreement, or by the agent in writing before the end of the cooling-off period.(5) There is no cooling-off period if:(a) at least 1 business day before the client signs the agency agreement the agent provides the client with a copy of the proposed agency agreement together with (in the case of an agreement that relates to residential land) a copy of a consumer guide approved by the Director-General from time to time for the purposes of this section, and(b) before the client signs the agency agreement the client signs a form of waiver of cooling-off period in a form approved by the Director-General by order published in the Gazette.
60 Agency agreement can be rescinded during cooling-off period
(1) The client can rescind an agency agreement by serving a notice of rescission on the agent under the agreement during the cooling-off period for the agreement.(2) To be effective, the notice of rescission must:(a) be in writing addressed to the agent and be to the effect that the client rescinds the agreement, and(b) be signed by the client or the client’s Australian legal practitioner or, if there is more than one client, by each client or their respective Australian legal practitioners, and(c) be served on the agent in one of the ways provided for by this section.(3) A notice of rescission may be served on an agent in any of the following ways:(a) by being given to the agent personally,(b) by being delivered to or left at a place of business of the agent or at any other address specified in the agency agreement as a place where a notice of rescission may be given,(c) by facsimile transmission.
(1) On service of a notice of rescission, the agency agreement is taken to be rescinded from the time it was entered into.(2) Neither the agent nor the client is liable to pay any sum for commission, damages, costs or expenses for or in connection with the agency agreement or its rescission.(3) The agent must refund to the client any money paid to the agent under a rescinded agency agreement.
A provision of an agency agreement or any other agreement or arrangement is void to the extent that it would (but for this section) have the effect of excluding, modifying or restricting the operation of this Division.