The long-awaited legislation to split and replace the Property Agents and Motor Dealers Act 2000 has fi nally been introduced to the Queensland Parliment last month and looks set to pass and commence early in 2014. This newsletter looks at how this key piece of legislation for the Queensland property industry will change life for property agents and their clients.
The Queensland Parliament saw four new bills introduced on 20 November 2013 aimed at splitting the current Property Agents and Motor Dealers Act 2000 (PAMDA). The bills were:
- Property Occupations Bill 2013
- Motor Dealer and Chattel Auctioneers Bill 2013
- Debt Collectors (Field Agents and Collection Agents) Bill 2013
- Agents Financial Administration Bill 2013.
If passed by the Queensland Parliament, the four Bills will replace the current PAMDA legislation in 2014.
The introduction of these bills follows Attorney-General Jarrod Bleijie’s announcement that there would be an independent review of Queensland’s property laws with a view to reducing red tape, regulation and duplication. Mr Bliejie had indicated that the purpose of the review was aimed at stimulating activity in the property and construction industries by streamlining the manner in which Queenslanders buy, sell and manage property.1
Here we provide a brief summary of the proposed amendments to be made by the Property Occupations Bill 2013 (Bill), which is intended to:
- regulate property related occupations and achieve an appropriate balance between consumer protection and the promotion of freedom of enterprise in the market place; and
- simplify and reduce the level of red tape and regulation that PAMDA currently imposes on the property industry.2
The changes proposed by the
Property Occupations Bill
If the Bill is passed without further amendment, it would introduce several signifi cant changes, which will impact on various industry stakeholders. While this is not an exhaustive list of the changes to current PAMDA requirements, some of the changes the Bill provides for are as follows:
Appointment of agent
- The process of appointing an agent will be simplifi ed by replacing seven existing forms with one single form.
- The requirement for an end date to be specifi ed for a continuing appointment will be removed.
- The limit on the length of an appointment for a sole or exclusive agency will be extended from 60 days to 90 days.
- Clarifi cation that an open listing of an agent may be ended at any time by either party giving written notice to the other.
- The requirement to state how services are to be performed will be removed.
- The process to effect an assignment of the agency appointment will be simplifi ed by removing the requirement to seek the client’s consent and no requirement to provide prior notice of the proposed assignment.
- The assignee of an appointment will be required to provide notice of the assignment within 14 days after the assignment is effected.
- The maximum commission payable for residential and rural property transactions will be deregulated.
- The prohibition on real estate agents receiving a commission for benefi cial interest sales will be removed, provided the seller acknowledges and agrees to the agent acquiring a benefi cial interest in the seller´s property.
- Real estate agents and auctioneers will be prohibited from disclosing a price guide in relation to a residential property to be sold by auction.
- Real estate agents will be allowed to disclose the fact that a reserve price has been set for residential property proposed for auction (but not the reserve price itself).
The current defi nition of ‘relevant contract’ under s 364 of PAMDA has been revised to clarify the contracts to which the new ‘Part 7 Residential Property Sales’ (which replaces Chapter 11 of PAMDA) applies. In particular, the new defi nition under clause 160 of the Bill clearly provides that a ‘relevant contract’ is a contract or option for the sale of residential property (defi ned to exclude industrial, commercial and primary production properties) and does not include:
- a contract formed on a sale by auction, or entered into by no later than 5:00pm on the second clear business day after the property was passed in at auction (with a registered bidder for the auction);
- a contract formed because of the exercise of an option granted where the parties are the same as the option; a contract if the buyer is a publicly listed corporation (or a subsidiary of a publicly listed corporation);
- a contract if the buyer is the State or a statutory body; or
- a contract if the buyer is purchasing at least 3 lots at the same time, whether or not in the 1 contract.
- The requirement for agents to disclose to a buyer the commission the agent is receiving from the seller (by way of the PAMDA Form 27C) will be removed.
- Existing PAMDA Form 30C Warning Statements will be replaced with a simpler requirement for a prescribed statement to be included in the Contract once, in a conspicuous way, directly above where the buyer executes the Contract.
- There will no longer be a right to terminate for failure to include the new warning statement, however, the seller or agent (depending on who gave the buyer the contract) will have committed an offence (punishable by a maximum of 200 penalty points).
- The requirement to attach Body Corporate and Community Management Act 1997 (Qld) Form 14 Information Sheets to Contracts for the sale of residential or non-residential property will be removed.