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Property Occupations Act 2014 – 1 July 2015

Property Occupations Regulation 2014 – 1 July 2015

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A person who wishes to obtain an auctioneer licence, real estate agent licence or resident letting agent licence may apply in the approved form to the government. For licence elaborations, refer to sections 25, 26 and 27 of the Act. For suitability provisions, refer to sections 34, 35, 36 of the Act. For eligibility requirements: for a property agent licence, refer to section 45 of the Act; for a resident letting agent licence, refer to section 46 of the Act. A ‘property agent’ is defined in section 15 of the Act as an auctioneer or real estate agent. Note: Licence renewals must be made prior to licence expiry and accompanied by an audit report for all trust accounts or a statutory declaration that the licensee did not operate a trust account. If a licence expires, the person may apply for restoration of the licence (within 3 months of the expiry). It is important to note that a licence may not be transferred. A licence may be issued for a 1 year or three year term. For the definition of ‘letting’, refer to the Schedule 2 dictionary.

  • Sections 8, 13, 14, 15, 16, 17, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 45, 46, 50, 54, 55, 56, 57, 58, 61, 64, 65, 71, 78, 79, 83, 84, 85, 86, 87, 94, 97,  98, 100, 101, 169, Schedule 2; Regulations 3, 4, 5, 8

A property agent or resident letting agent must not claim commission worked out on an amount more than the actual sale price of the property, the actual rental for the property being let or the actual amount of rent collected.

  • Section 88

A person is not entitled to sue for, recover or keep a reward or expense for the performance of an activity as a property agent or resident letting agent unless, at the time the activity was performed, the person was properly appointed by the person to be charged with the reward or expense. Further, the reward cannot be more than the amount stated in the appointment. In relation to expenses, they cannot be more than the amount stated in the appointment and actually expended. For the definition of ‘reward’, refer to the Schedule 2 dictionary.

  • Sections 13, 89, 90, Schedule 2

An auctioneer must not charge the buyer of the goods a buyer’s premium unless the auctioneer before the auction, obtains the written consent of the owner of the goods; and discloses, in the way prescribed under a regulation, that a buyer’s premium is payable on the purchase of the goods. The premium cannot be more than the amount prescribed or worked out under a regulation. For the operative regulation in relation to buyer’s premium, refer to regulation 7 of the Property Occupations Regulation 2014.

  • Section 92; Regulation 7

A property agent, or resident letting agent, who is a principal licensee must not publish, or permit to be published, in a newspaper or elsewhere an advertisement for the agent’s business without stating in the advertisement the particulars prescribed under a regulation. For the definition of ‘principal licensee’, refer to the Schedule 2 dictionary.

  • Sections 13, 95, Schedule 2

A property agent who conducts an auction must display at the auction, in the way and for the period prescribed under a regulation: the property agent’s name; and any other particulars prescribed under a regulation. For the operative regulation in relation to display, refer to regulation 9 of the Property Occupations Regulation 2014.

  • Section 95; Regulation 9

If a resident letting agent is a letting agent for a community titles scheme; and enters into a contract to sell management rights for the community titles scheme to another resident letting agent then: at least 14 days before the day management rights are to pass to the buyer under the contract, the existing letting agent must make available to the new letting agent the existing letting agent’s trust account records for the community titles scheme to which the management rights relate for the prescribed period (generally 5 years) before the intended date of the sale of the management rights. A failure to comply will allow the buyer to avoid the contract. For the definition of ‘sell’, refer to the Schedule 2 dictionary.

  • Sections 13, 96, Schedule 2

A property agent or resident letting agent must not act for more than 1 party to a transaction. If a property agent or resident letting agent acts for more than 1 party to a transaction, an appointment to act for a party to the transaction is ineffective from the time it is made. Exception: Property exchange.

  • Section 99

A person may appoint a property agent or resident letting agent for a single appointment or continuous appointment. Note: Section 104 of the Act contains the general content for an appointment. An appointment of a property agent or resident letting agent must be signed and dated by the client; and the property agent or resident letting agent. The property agent or resident letting agent must give a copy of the signed appointment to the client.

  • Sections 13, 102, 104, 105, 106, 107, 108, 109, 110, 111, 112, 114, Schedule 2

Before the appointment for a property agent is signed for a sole or exclusive agency, the property agent must: (a) give the client a notice, in the approved form, that provides information about sole and exclusive agency appointments; and (b) discuss with the client:- whether the appointment is to be for a sole agency or an exclusive agency; the proposed term of the appointment; for an appointment for the sale of residential property other than a commercial scale appointment (as defined in the Schedule 2 dictionary), the client’s entitlement to negotiate the term of the appointment up to a maximum term of 90 days; and the consequences for the client if the property is sold by someone other than the agent during the term of the appointment. For the definition of ‘residential property’, refer to section 21 of the Act. For an explanation of the difference between ‘exclusive agency’ and ‘sole agency’, refer to section 23 of the Act. Note: Another type of appointment is ‘open listing’. For an explanation of this type of appointment, refer to section 20 of the Act.

  • Sections 20, 21, 23, 103

A person may apply in the approved form to the government for registration as a real estate salesperson. For suitability provisions, refer to sections 120 and 121 of the Act. For eligibility requirements, refer to section 127 of the Act. The applicant receives a registration certificate if registration is granted. Note: Registration certificate renewals must be made prior to certificate expiry. If a certificate expires, the person may apply for restoration of the certificate (within 3 months of the expiry). Note: A registration certificate may not be transferred. A registration certificate may be issued for a 1 year or three year term.

  • Sections 115, 116, 117, 118, 120, 121, 127, 128, 129, 130, 133, 136, 137, 144, 145, 146, 149, 150, 151; Regulation 6

Where property is placed with a property agent for sale, the property agent/real estate salesperson employed by the real estate agent commits an offence if the agent/salesperson obtains from the client an option to purchase the property in which the agent/salesperson has a beneficial interest or otherwise obtains a beneficial interest in the property. However, pursuant to section 155, the agent/salesperson may obtain a beneficial interest in the property where before the contract for sale of the property is entered into, the agent/salesperson obtains the client’s written acknowledgement in the approved form and other conditions are met. For the definition of ‘beneficial interest’, refer to section 153 of the Act. For the definition of ‘option to purchase’, refer to the Schedule 2 dictionary.

  • Sections 13, 153, 154, 155, 156, Schedule 2

A residential property agent for the sale of residential property must disclose the following to any prospective buyer of the property: any relationship, and the nature of the relationship (whether personal or commercial), the agent has with an entity to whom the agent refers the buyer for professional services associated with the sale; whether the agent derives or expects to derive a benefit from a referred entity and, if so, the amount or value of the benefit, etc. Note: The disclosure is effective if it is: given to the prospective buyer in the approved form before a contract of sale for the property is entered into; and acknowledged by the prospective buyer in writing on the approved form before a contract for the sale of the property is entered into.

  • Section 157

A property developer marketing residential property must disclose the following to a prospective buyer of the property: any relationship, and the nature of the relationship (whether personal or commercial), the property developer has with an entity to whom the property developer refers the buyer for professional services associated with the sale; whether the property developer derives or expects to derive a benefit from a referred entity and, if so, the amount, value or nature of the benefit; that the property developer holds an interest of at least 15% in the property, etc. The disclosure is effective only if it is: given to the prospective buyer in the approved form before a contract for the sale of the property is entered into; and acknowledged by the prospective buyer in writing on the approved form before a contract for the sale of the property is entered into. For the definition of  ‘property developer’, refer to the Schedule 2 dictionary and section 18 of the Act. For the definition of ‘market’, refer to the Schedule 2 dictionary.

  • Sections 13, 18, 158, Schedule 2

In most instances, a residential contract is bound by the provisions of Part 7 of this Act. For exclusions, refer to section 160 of the Act. Where the seller is a property developer and the contract provides for a part payment, Division 3 of Part 7 applies. Where a buyer is to pay for a valuation, the seller commits an offence if the seller fails to give the buyer a copy of the valuation before the relevant contract is entered into. Note: The term or requirement (relating to the valuation) is effective only if, before the relevant contract was entered into by the buyer, the buyer received the valuation and, in writing, acknowledged the receipt. A seller who gives a proposed relevant contract for the first time to a proposed buyer for signing must ensure the proposed relevant contract includes the ‘cooling-off period’ information provided by subsection 165(2) of the Act. The seller must ensure the words are written in the contract once, immediately above, and on the same page as the place in the contract where the buyer signs to indicate the buyer’s intention to be bound by the contract. For details of the cooling-off period (and when it starts and ends), refer to section 166 of the Act. A buyer who has not waived the cooling-off period for a relevant contract may terminate the contract at any time during the cooling-off period by giving a signed notice of termination to the seller. Upon such termination, the seller may deduct from any deposit paid under the relevant contract an amount not greater than the termination penalty (defined in section 159 of the Act as an amount equal to 0.25% of the purchase price).

  • Sections 159, 160, 161, 162, 163, 164, 165, 166, 167, 168

A person aggrieved by a person’s action may apply to the District Court for an injunction. The court may grant an injunction if satisfied the person has engaged, or is proposing to engage, in conduct that constitutes or would constitute: a contravention of this Act or a prescribed conduct provision; or attempting to contravene this Act or a prescribed conduct provision; etc. For information regarding the prescribed conduct provision, refer to regulation 17 of the Property Occupations Regulation 2014.

  • Sections 13, 191, 192, 193, 194, 195, 235, Schedule 2; Regulations 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30

A marketeer must not, in connection with the sale, or for promoting the sale, or for providing a service in connection with the sale, of residential property in Queensland, engage in conduct that is misleading or is likely to mislead. For the definition of ‘marketeer’, refer to the Schedule 2 dictionary.

  • Sections 13, 207, 209, 210, Schedule 2

A marketeer must not, in connection with the sale, or for promoting the sale, or for providing a service in connection with the sale, of residential property in Queensland, engage in conduct that is, in all the circumstances, unconscionable.

  • Sections 208, 210

A marketeer must not unduly harass another person in connection with the sale or possible sale of residential property in Queensland.

  • Section 211

A licensee or real estate salesperson must not represent to someone else anything that is false or misleading relating to the letting, exchange or sale of real property. For the definition of ‘representation’, refer to the Schedule 2 dictionary.

  • Sections 13, 212, Schedule 2

If the seller (of residential property) appoints an auctioneer to sell the offered property, the auctioneer must obtain from the seller before the offered property is auctioned a written notice stating: (a) if the seller sets a reserve price—the reserve price; or (b) if the seller does not set a reserve price—that the seller understands the offered property will be sold for the highest of any bids made when the offered property is auctioned. An auctioneer must not help a seller decide the reserve price for offered property unless, before the seller decides the price, the auctioneer gives the seller: (a) a copy of a comparative market analysis for the offered property; or (b) if a comparative market analysis cannot be prepared for the offered property, a written explanation showing how the auctioneer decided the market value of the property. An auctioneer must not disclose to a person other than a person acting for the seller in relation to the sale: (a) the reserve price set for the offered property; (b) an amount the auctioneer considers is a price likely to result in a successful or acceptable bid for the offered property; or (c) a price guide for the offered property. For the definition of ‘comparative market analysis’, refer to the Schedule 2 dictionary.

  • Sections 13, 213, 214, Schedule 2; Regulations 10, 11

If a real estate agent decides to give the seller (of residential property) information about sale price, the real estate agent must, when giving the person the information, give the person: (a) a copy of a comparative market analysis for the offered property; or (b) if a comparative market analysis cannot be prepared for the offered property, a written explanation showing how the real estate agent decided the market value of the property. For the definition of ‘comparative market analysis’, refer to the Schedule 2 dictionary.

  • Sections 13, 215, Schedule 2

A licensee or real estate salesperson must not charge a fee for the provision, preparation or completion of a document for a transaction relating to, or arising out of, the performance of a licensee’s activities.

  • Section 219

A person must not make an unsolicited invitation to another person to attend a property information session unless the person is a property developer, a property agent or someone acting for the developer or agent. For the definition of ‘unsolicited invitation’, refer to section 22 of the Act. For the definition of ‘property information session’, refer to the Schedule 2 dictionary.

  • Sections 13, 22, 222, Schedule 2

Nothing in this Act affects or limits a civil remedy a person may have against a licensee or another person in relation to a matter.

  • Section 231
Reason for law

To provide a system for licensing and regulating persons as property agents or resident letting agents and for registering and regulating persons as real estate salespersons that achieves an appropriate balance between: the need to regulate for the protection of consumers; and (ii) the need to promote freedom of enterprise in the market place. (Section 12)

Relevant links

Property agents and managers [Office of Fair Trading]

Check a licence

Real Estate Institute of Queensland (REIQ)

Real Estate Institute of Australia (REIA)

Property Council of Australia

Suggested links

HomePrezzo

Critique

N/A

Media article

‘Underquoting is so widespread I can’t hire real estate agents’

The 15 questions to ask before buying a house

English man raffling off his mansion for $3 a ticket

Property startups Gavl and FinalCall let buyers watch auctions and place bids remotely

Suggested further reading

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PLEASE NOTE: The information published on this webpage may be out-of-date. Please compare the currency date of the Act/Regulation against that published on the Office of the Queensland Parliamentary Counsel website. If you require access to Commonwealth statute law, please visit the ComLaw website. If you require access to the local council laws (by-laws), please visit the Local laws database.

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