Question - Is an agent able to draw a commission after exchange but prior to settlement on extended settlements such as developments that take 12 - 15 months?

Answer - The agent is only able to draw commission, at any time, when suitable written notification is received from the party whose money they are holding. The issue is that the vendor pays the commission and the deposit is the purchaser’s money until settlement. If you want to get your commission early, you need to come to an arrangement with your vendor for them to pay you.

Question - Who owns the deposit? (in relation to a purchase)

Answer - The deposit is the purchaser’s money until settlement when it becomes the vendor’s.

Question - If you receive an expression of interest deposit, but ask the purchaser to forward it directly to the vendor’s solicitor so it can be held in their trust account, what are the receipting requirements?

Answer - If you receive the money by way of cash or cheque in favour of your office, you must receipt it through your trust account. If you don’t want to issue a receipt the deposit must be received by cheque in favour of the vendor’s solicitor. You are not responsible for the vendor’s solicitor issuing a receipt.

Question - Does the agent have the same duty to inform a commercial tenant, e.g. in a shopping centre when the property is listed for sale

Answer - Schedule 2.6 says that an agent who lists a residential property for sale that is managed by another agent must immediately notify the managing agent in writing of the fact. This clause does not refer to commercial property. However, in Schedule 2.15 the agent is required to notify a tenant if they become aware that the property is placed on the market.

This part does not mention residential property so it must be taken that it applies to all property. The owner can not instruct the agent to do something that will breach a clause in the Act so the agent must inform the tenant whether the owner wants it or not.

Question - Where there is a no sign policy on a strata block, can the agent refuse to move a sign if they erect it on a public path?

Answer -If the path is part of the common property, it must be erected with the consent of the owners corporation. If the sign is on public property, i.e. footpath, drive or public access, the sign is erected illegally and the agent is subject to fines and public liability.

Question - Clarification of Issue raised in Session 3 "Agency Agreements"

Answer - We have received written notification from the Office of Fair Trading regarding the correct information to be inserted against the "Agent Name" when the firm is a Corporation. "If you enter in agency agreements using the corporation name ….., the corporation license is what you would put on the agreement. An individual’s license number would only be used if the agreement were with that particular person as an individual." (OFT ref.2357887 dated 18/11/04)

Question – If the fixed period of the agency has expired does the vendor still have to give 30 days notice of termination of agency?

Answer – No, an agreement can be terminated at any time once the fixed term of a sole or exclusive agency has expired. If the agency term is longer than 90 days the agreement can be terminated by giving 30 days written notice.

Question – The Act says that agreements can be served electronically. Does this mean an agency agreement can be faxed to a vendor (or landlord) who prints it, signs it and faxes the signed copy back to the agent?

Answer – Yes this is possible, however, as the agent must serve a copy of the agreement on the vendor/landlord within 48 hours of it being signed, the agent should acknowledge receipt of the signed agreement by fax and forward a copy back to the client.

Question – Can a corporation hold both a sales (real estate) agents and a buyer’s license?

Answer – The corporation license is not market sector specific. It allows the corporation to carry on business in any of the license areas that the individuals within the corporation are licensed for. This is similar to auctioneers accreditation where the corporation does not become accredited as an auctioneer but the individual agent does.

Question – Does a live in manager at a retirement village, whose duties include collecting levies, organising repairs and maintaining
books, require a license?

Answer – On the detail provided in the question, yes, an on-site residential property manager licence.

Question – If you are currently studying at TAFE, e.g. for your license, do you still need to do the CPD points.

Answer – Everyone who is a license or certificate holder must do the CPD points. If you are studying a formal course some of that study may contribute some of the points, depending on if the study meets the OFT requirements. Depending on the course, the topic areas and the method of assessment the points could come from any of the learning categories. The important issue is that you must do the Compulsory Learning areas of training and can make up points from the Priority Learning areas.

Question - A commercial property manager takes an expression of interest deposit form a prospective tenant and also has that prospect fill out a form to the effect that if that prospect does not proceed they will meet the cost of their share for any monies spent on the
aborted lease being drawn up.

Answer – This arrangement must be separate from the prescribed processes of treating expression of interest deposits. In other words the deposit must be refunded to the prospect in full and any arrangement regarding payment for the lease be handled separately.