Significant reforms are currently being considered by the Queensland Parliament in relation to the regulation of the qualifications and practices of property agents. These proposed changes are aimed at the streamlining and harmonisation of the existing regulatory framework applying to agents, as well as the deregulation of the residential property market with regards to the payment of commissions.
Proposed Changes to the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA)
The Queensland Government is proposing to separate PAMDA into the following four distinct pieces of legislation.
Property Agents Bill
This Bill will regulate the functions of real estate agents, auctioneers of real property and resident letting agents.
Among the changes proposed by the Bill, the following two are perhaps of most importance:
- Enabling the implementation of the National Occupational Licensing System, which is intended is intended to remove overlapping and inconsistent regulation between jurisdictions; and
- Clarification of the status of independent contractors engaged by property agents. The Bill will ensure that persons engaged in this manner must hold a relevant licence before undertaking the role of a property agent or property agent salesperson.
Motor Dealers and Chattel Auctioneers Bill
One of the major changes proposed by this Bill is the grouping of many existing licence classes under the new class of “Chattel Auctioneer”.
This change has been brought about in part due to the lobbying of auctioneers in relation to the sale of livestock at auction. Upon enactment of the Bill, the need for a separate licence in this respect will be removed and no licence will be required for the sale of livestock by private treaty.
Commercial Agents Bill
This Bill will regulate the activities of agents involved in debt collection, process serving and chattel repossession.
Whilst largely aimed at consumer protection, the Bill also acknowledges the commercial realities associated with the business conducted by commercial agents.
In particular, the Bill acknowledges that as many commercial agents in Queensland work from home and perform their duties away from their business premises, the requirement which exists under PAMDA for commercial agents to display their licence and name at their principal place of business is not always practical.
Similarly, considerations regarding the safety of commercial agents, particularly those involved in bankruptcy and related matters have been taken into account in the decision to remove the current requirements under PAMDA.
Agents Financial Administration Bill
The Bill will bring about reductions to the maximum penalties that currently apply for offences in relation to the administration of trust accounts held by agents.
This will enable some offences to be treated other than as indictable offences (as is currently the case under PAMDA), and will allow the issuing of infringement notices in relation to minor trust account breaches.
Deregulation of Agent’s Commission on the Sale of Residential Property
As a part of its proposed reform of the PAMDA regime, the Queensland Government is considering the removal of the statutory cap on the level of commission payable to property agents on the sale of residential property and thereby bring Queensland into line with all other states and territories in this regard.
Currently, commission payable on the sale of residential property is capped at 5% of the first $18,000 of the purchase price, and 2.5% on the balance. The proposed deregulation will enable agents to negotiate an appropriate level of commission (as is currently the case with nonresidential property) to allow agents to take into account circumstances such as the potential of a property to be sold or the amount of effort required for it ultimately to be sold.
Whilst precise details of the Government’s plan have yet to be released, the Attorney-General has stated that any disputes as to the amount of commission payable on a particular sale will be referable to the Queensland Civil and Administrative Tribunal, which will be empowered to, where necessary to resolve a dispute, substitute what it deems an appropriate amount of commission for the amount originally agreed to by the seller and agent.
Whether this deregulation results in a significant increase in rates of commission remains to be seen, however it is expected that the deregulation will result in greater competition in the real estate market and agents will therefore need to consider their brand and services in greater detail in order to remain competitive.
The passage of the PAMDA amending Bills and the proposed deregulation of commission through the State Parliament will be of particular interest to all those in the property industry and we will continue to provide updates as they come to hand.