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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
PROPERTY AGENTS AND LAND TRANSACTIONS
BILL 2005
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. Application of Act
PART 2 - REAL ESTATE AGENTS AND PROPERTY MANAGERS
Division 1 - Limits on right to carry on real estate agency business or
property management business
5. Real estate agency business to be carried on by real estate agent
6. Property management business to be carried on by property
manager
7. Management of real estate agency business
8. Management of property management business
9. Employment of property managers and assistant property
managers
10. Employment of property consultants by real estate agents
11. Limitations on employees of real estate agents
12. Limitations on employees of property managers
13. Real estate agent to keep record of certain employees
14. Property manager to keep record of certain employees
[Bill 45]-I
15. Limitation on employment of certain people by real estate agents
16. Limitation on employment of certain people by property
managers
17. Limitation on employment of certain people by general
auctioneers
Division 2 - Remuneration of real estate agents and property managers
18. Appointment of real estate agents to be in writing
19. Appointment of property managers to be in writing
20. Property agent to disclose any benefits
21. Fees not recoverable in certain circumstances
Division 3 - Offences in respect of property agents
22. Conflict of interest - acquisition of property
23. Conflict of interest - sale of property
24. Franchising agreements
25. Notice to be displayed by real estate agents
26. Notice to be displayed by property managers
27. Requirements of advertisements by real estate agents
28. Requirements of advertisements by property managers
29. False advertising, &c., by real estate agents
30. False advertising, &c., by property managers
31. Name under which real estate agents may carry on business
32. Name under which property managers may carry on business
PART 3 - AUCTIONS
Division 1 - Control of general auctioneering business
33. General auctioneering business to be carried on by general
auctioneer or real estate agent
34. Management of general auctioneering business
35. Name under which general auctioneer may carry on business
36. Notice to be displayed
37. Requirements of advertisements by general auctioneers
38. False advertising, &c., by general auctioneers
2
Division 2 - Conduct at public auctions
39. Misrepresentations at public auctions
40. Bids by owner at public auction
41. Permissible owner bids
42. Dummy bids
43. Offence to falsely acknowledge bid
44. Conditions of public auctions to be made available before
auction starts
45. Right to compensation if Part breached
46. Contrary conditions are void
47. Last vendor bid to be identified if property passed in
Division 3 - Conduct of public and private auctions
48. Interpretation of Division 3
49. Certain bidding agreements unlawful
50. Collusive practices prohibited at auctions
51. Successful bidder to supply information to auctioneer
52. Certain notices to be given at auction
Division 4 - Remuneration of general auctioneers
53. Appointment of general auctioneer to be in writing
54. General auctioneer to disclose any benefits
55. Fees not recoverable in certain circumstances
PART 4 - REGISTRATION AND QUALIFICATIONS
Division 1 - Registration
56. Board to maintain Register
57. Part 1 of Register
58. Part 2 of Register
59. Part 3 of Register
60. Application for registration
61. Board to make Register available for public inspection
62. Property agent may apply for licence
3
Division 2 - Qualifications
63. Qualifications for registration as real estate agent
64. Qualifications for registration as property manager
65. Qualifications for registration as general auctioneer
66. Continuing education
Division 3 - Period of validity of registration
67. Period of validity of registration
68. Effect of suspension of registration
PART 5 - PROPERTY AGENTS BOARD
Division 1 - Establishment of Board
69. Property Agents Board established
70. Membership of Board
71. Conditions of appointment to Board
72. Vacancy in Board membership
73. Validity of actions by Board
74. Presumptions in respect of Board
Division 2 - Meetings of Board
75. Meetings of Board
76. Presiding at meetings of Board
77. Procedure at meetings of Board
78. Interests to be disclosed by Board members
79. Indemnity
Division 3 - Duty of Board
80. Duty of Board
81. Code of Conduct to be developed by Board
Division 4 - Powers, &c., of Board
82. Powers of Board
83. Delegation by Board
84. Contracts with Board
85. Committees of Board
4
86. Employees of Board
87. Confidentiality
Division 5 - Finance of Board
88. Funds of Board
89. Accounts
90. Audit
91. Annual report
PART 6 - COMPLAINTS AND DISCIPLINE
Division 1 - Complaints about conduct of property agents
92. Interpretation of Part 6
93. Complaints about conduct of property agents
94. Application of Code of Conduct
95. Complaints procedure
96. Time limits for complaints
97. Dismissal of complaints
98. Withdrawal of complaints
Division 2 - Procedure in dealing with complaints
99. Property agent to be notified of complaint
100. Consideration of conduct complaint
101. Conduct complaints must be investigated
102. Preliminary investigation of conduct complaints
Division 3 - Investigations of conduct complaints
103. Conduct complaints to be investigated efficiently and
expeditiously
104. Powers of Board to investigate conduct complaints
105. Board may obtain search warrant to enter and search premises
106. Interim order for suspension of registration or qualification
107. Referral of conduct complaints
108. Procedure for minor misconduct
109. Appeals against determinations
110. Procedure if offence suspected
5
Division 4 - Establishment of Tribunal
111. Application
112. Establishment of Tribunal
113. President of Tribunal
114. Members of Panel
115. Meetings of Tribunal
116. Responsibilities of Tribunal and Board
117. Powers of Tribunal
118. Requirements of summons to property agent
119. Procedures at hearing by Tribunal
Division 5 - Action following hearing
120. Determination by Tribunal
121. Costs and expenses of hearings
122. Notice of action
123. Indemnity
Division 6 - Suspension and disqualification
124. Power of Board to suspend registration or to disqualify
125. Revocation of suspension or disqualification
Division 7 - Appeals
126. Right to appeal decisions of Board
127. Right to appeal decisions of Tribunal
PART 7 - CONTROL OF PROPERTY AGENTS CARRYING ON
BUSINESSES
Division 1 - Protection of trust money, and appointment of receivers and
managers
128. Protection of trust money
129. Appointment of receiver or manager
130. Duty of receiver
131. Receiver may require delivery of trust money and supply of
information
132. Dealings with trust account
6
133. Power to take proceedings to recover trust money
134. Magistrate may give directions, &c., to receiver
135. Powers of manager
136. Obligations of manager
137. Magistrate may give directions, &c., to manager
138. Remuneration of receivers and managers
139. Receiver and manager to report to Board
140. Termination, &c., of appointment of receiver or manager
Division 2 - Professional indemnity insurance
141. Certain property agents to have professional indemnity insurance
142. Suspension of registration when professional indemnity
insurance not in force
PART 8 - TRUST MONEY, TRUST ACCOUNTS AND RECORDS
143. Trust money
144. Trust money to be paid into trust account
145. "Trust account" defined
146. Accounts regulations
147. Records of transactions
148. Inspection of records of authorised deposit-taking institutions,
&c.
PART 9 - PROPERTY AGENTS TRUST AND GUARANTEE FUND
Division 1 - Property Agents Trust
149. Property Agents Trust
150. Constitution of Trust
151. Fees and allowances of Trust members
152. Removal of Trust member from office
153. Vacation of office of Trust members
154. Resignation by Trust members
155. Meetings of Trust
156. Trust member not to act in certain circumstances
157. Functions of Trust
7
158. General powers of Trust
159. Administrative accounts of Trust
160. Protection of Trust members
Division 2 - Schemes of arrangement
161. Board may enter into schemes of arrangement
162. Trust accounts to be kept only with approved institutions
Division 3 - Property Agents Guarantee Fund
163. Property Agents Guarantee Fund
164. Level of Guarantee Fund
165. Administration of Guarantee Fund
166. Use of surplus money in Guarantee Fund
Division 4 - Audit and report
167. Accounts and report
Division 5 - Claims against Guarantee Fund
168. Right to claim compensation
169. Board may invite claims
170. Manner and time for making application for compensation
171. Applicant for compensation to provide details of claim
172. Board may seek further particulars
173. Board to consider application
174. Recovery of claims under professional indemnity insurance
175. Trust to determine compensation payable
176. Notice of determination
177. Reviews
178. Payment of compensation
179. Subrogation
180. Certain property agents may not claim
PART 10 - LAND TRANSACTIONS
Division 1 - Preliminary
181. Interpretation of Part 10
8
182. Application of Part
183. Crown to be bound
Division 2 - Disclosure of information by vendors of land
184. Application of Division
185. Vendors to provide relevant disclosure documents
186. Location of disclosure documents to be contained in
advertisements
187. Vendors to provide relevant disclosure documents before public
auction
188. Contract voidable if relevant disclosure documents not provided
189. Relevant disclosure documents
190. Vendor statements
191. Warning notices
192. Validity of relevant disclosure documents
193. Variation of disclosure information
194. Offence to provide false, inaccurate or misleading information
195. Liability of agent
196. Certain conditions to be implied in contract
197. Defences
198. Purchaser's rights in respect of information provided by third
parties
Division 3 - Cooling-off periods - residential property
199. Cooling-off period
200. Contracts to contain statement of cooling-off rights and other
prescribed information
201. Real estate agent may not receive consideration where cooling-
off right exercised
202. Right to rescind contract for sale of residential property -
cooling-off rights
203. Right to rescind residential agency agreement - cooling-off
rights
204. Waiver of rights under this Division
9
Division 4 - Supplemental
205. Contracts, &c., to avoid requirements of this Part void
206. Responsibilities of purchaser
207. Prosecutions
PART 11 - MISCELLANEOUS PROVISIONS
208. Obstruction
209. Liability of directors, &c.
210. Service of documents
211. Regulations
212. Administration of Act
213. Savings and transitional provisions
214. Consequential amendments
215. Legislation repealed
216. Legislation rescinded
SCHEDULE 1 - CONSEQUENTIAL AMENDMENTS
SCHEDULE 2 - LEGISLATION REPEALED
SCHEDULE 3 - LEGISLATION RESCINDED
10
PROPERTY AGENTS AND LAND TRANSACTIONS
BILL 2005
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to regulate certain auction and real estate practices,
to regulate property agents, to provide for the disclosure of
information by vendors of land and for cooling-off periods
for vendors and purchasers in respect of residential
property and to repeal the Auctioneers and Real Estate
Agents Act 1991
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Property Agents
and Land Transactions Act 2005.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
[Bill 45] 11
s. 3 No. Property Agents and Land Transactions 2005
3. Interpretation
(1) In this Act, unless the contrary intention
appears -
"accountant" means a person practising as a
public accountant who is a member of -
(a) the Australian Society of
Certified Practising Accountants;
or
(b) the Institute of Chartered
Accountants in Australia; or
(c) the National Institute of
Accountants in Australia;
"approved institution" means an authorised
deposit-taking institution mentioned in
section 161(2);
"assistant property manager" means a
person who has the qualifications
required by the regulations to be
employed by a property manager named
in Part 2(1) of the Register -
(a) to negotiate the leasing or letting
of property; and
(b) to collect rents for property that is
leased or let; and
(c) to manage property that is leased
or let -
but does not include a person who has
been suspended or disqualified by the
12
2005 Property Agents and Land Transactions No. s. 3
Board from being employed as an
assistant property manager;
"auditor" means a person who -
(a) is a member of the Australian
Society of Certified Practising
Accountants, the Institute of
Chartered Accountants in
Australia or the National Institute
of Accountants in Australia; and
(b) meets the requirements of one of
those bodies to practise as a
public accountant;
"authorised place of business", in respect of
a real estate agent named in Part 1(1) of
the Register, a property manager named
in Part 2(1) of the Register or a general
auctioneer named in Part 3 of the
Register, means a place shown in the
Register as a place where the agent,
manager or auctioneer may carry on,
respectively, real estate agency business,
property management business or general
auctioneering business;
"Board" means the Property Agents Board
established under section 69;
"business", in respect of the sale or purchase
of a business, includes a share in a
business and the goodwill of a business,
but does not include a share in the capital
of a company;
13
s. 3 No. Property Agents and Land Transactions 2005
"Code of Conduct" or "Code" means the
Code of Conduct referred to in
section 81;
"company" means a body corporate wherever
incorporated;
"conveyancer" has the same meaning as in
the Conveyancing Act 2004;
"document" means any record of
information, and includes -
(a) anything on which there is
writing; and
(b) anything on which there are
marks, figures, symbols or
perforations having a meaning for
persons qualified to interpret
them; and
(c) anything from which sounds,
images or writings can be
reproduced with or without the
aid of anything else; and
(d) a map, plan, drawing or
photograph -
and a reference in this Act to a document
(as so defined) includes a reference to -
(e) any part of the document; and
(f) any copy, reproduction or
duplicate of the document or of
any part of the document; and
14
2005 Property Agents and Land Transactions No. s. 3
(g) any part of such a copy,
reproduction or duplicate;
"functions" includes powers and duties;
"general auctioneer" means a person named
in Part 3 of the Register;
"general auctioneering business" means
business as an auctioneer where the
property auctioned does not include land;
"Guarantee Fund" or "Fund" means the
fund as continued in existence by
section 163(1) under the name Property
Agents Guarantee Fund;
"magistrate" means a magistrate within the
meaning of the Magistrates Court Act
1987;
"name", in respect of a real estate agent
named in Part 1(1) of the Register, a
property manager named in Part 2(1) of
the Register or a general auctioneer
named in Part 3 of the Register, means
the name shown in the Register as a
name by which the agent, manager or
auctioneer may carry on, respectively,
real estate agency business, property
management business or general
auctioneering business;
"owner", in respect of property, means the
person who holds the legal title to it, that
person's successors and assigns and an
agent of that person;
15
s. 3 No. Property Agents and Land Transactions 2005
"property" includes both real and personal
property and any estate or interest in any
property real or personal;
"property agent" means a real estate agent, a
property manager, a general auctioneer,
an assistant property manager or a
property consultant;
"property agents industry" means the
business carried on by property agents;
"property consultant" means a person who
has the qualifications required by the
regulations to be employed by a real
estate agent to induce or attempt to
induce, or negotiate with a view to
inducing, people to do all or any of the
following:
(a) acquire or dispose of property or
a business;
(b) make an offer to acquire or
dispose of property;
(c) make an offer to acquire or
dispose of a business;
(d) enter into a contract for the
acquisition or disposal of
property;
(e) enter into a contract for the
acquisition or disposal of a
business -
but does not include a person who has
been suspended or disqualified by the
16
2005 Property Agents and Land Transactions No. s. 3
Board from being employed as a
property consultant;
"property management business" means
business that includes carrying out all or
any of the following activities pursuant to
instructions received from other people:
(a) negotiating the leasing or letting
of property;
(b) collecting rents for property that
is leased or let;
(c) managing property that is leased
or let;
"property manager" or "manager" means a
person named in Part 2 of the Register;
"public auction" means an auction that has
been publicly advertised;
"real estate agency business" means
business that includes carrying out all or
any of the following activities pursuant to
instructions received from other people:
(a) selling, buying, exchanging,
leasing or otherwise dealing with,
or disposing of, property or
businesses;
(b) negotiating the sale, purchase,
exchange, lease or any other
dealing with, or the disposition
of, property or businesses;
(c) collecting rents for property that
is leased or let;
17
s. 3 No. Property Agents and Land Transactions 2005
(d) managing property that is leased
or let;
"real estate agent" or "agent" means a
person named in Part 1 of the Register;
"Register" means the Register of Property
Agents maintained by the Board under
section 56;
"regulations" means the regulations made
and in force under this Act;
"relative", in relation to a person, includes
partner, within the meaning of the
Relationships Act 2003, of that person;
"repealed Act" means the Auctioneers and
Real Estate Agents Act 1991;
"sale" means a disposition of property for
valuable consideration;
"scheme of arrangement" means a scheme
of arrangement mentioned in section 161;
"Tribunal" means a Tribunal established in
accordance with Division 4 of Part 6;
"Trust" means the trust as continued in
existence by section 149(1) under the
name Property Agents Trust;
"trust account" has the meaning assigned to
that expression by section 145;
"trust money" has the meaning assigned to
that expression by section 143.
(2) In this Act -
18
2005 Property Agents and Land Transactions No. s. 4
(a) a reference to Part 1(1) of the Register is
a reference to Division (1) of Part 1 of
the Register; and
(b) a reference to Part 2(1) of the Register is
a reference to Division (1) of Part 2 of
the Register.
4. Application of Act
(1) This Act, except Part 10, does not bind the
Crown.
(2) Nothing in this Act prohibits a person mentioned
in subsection (3) from carrying out an activity
that is part of real estate agency business or
property management business.
(3) Those persons are -
(a) a liquidator or receiver; or
(b) a person who is subject to a guardianship
order under the Guardianship and
Administration Act 1995 or a continuing
care order under section 28 of the Mental
Health Act 1996; or
(c) a trustee company within the meaning of
the Trustee Companies Act 1953; or
(d) a legal practitioner in respect of whom a
practising certificate is in force under
section 51 of the Legal Profession Act
1993 -
exercising functions in that capacity.
19
s. 4 No. Property Agents and Land Transactions 2005
(4) An accountant need not be registered to carry out
an activity that is part of real estate agency
business if the activity does not include the sale,
management, letting or lease of land.
20
2005 Property Agents and Land Transactions No. s. 5
PART 2 - REAL ESTATE AGENTS AND PROPERTY
MANAGERS
Division 1 - Limits on right to carry on real estate agency
business or property management business
5. Real estate agency business to be carried on by real
estate agent
A person must not carry on all or any part of real
estate agency business, or hold himself or herself
out as prepared to do so, unless the name of the
person appears in Part 1(1) of the Register.
Penalty: Fine not exceeding 1 000 penalty
units.
6. Property management business to be carried on by
property manager
A person must not carry on all or any part of
property management business, or hold himself
or herself out as prepared to do so, unless the
name of the person appears in Part 2(1) of the
Register or the person is a real estate agent
named in Part 1(1) of the Register.
Penalty: Fine not exceeding 1 000 penalty
units.
7. Management of real estate agency business
(1) A real estate agent named in Part 1(1) of the
Register must not carry on real estate agency
business except at an authorised place of
21
s. 8 No. Property Agents and Land Transactions 2005
business that is managed by the real estate agent
or by a real estate agent named in Part 1(2) of
the Register employed by the agent.
Penalty: Fine not exceeding 50 penalty units.
(2) A real estate agent must not manage a place
where real estate agency business is carried on
unless it is an authorised place of business for
that business.
Penalty: Fine not exceeding 50 penalty units.
(3) For the purpose of subsection (1), an authorised
place of business where real estate agency
business is carried on is being managed by a real
estate agent if the agent, although not necessarily
in full-time attendance at the place of business,
is aware of, and has responsibility for, the day-
to-day activities carried on there.
(4) Despite subsection (1), if for any reason an
authorised place of business of a real estate agent
cannot be managed by the real estate agent or by
a real estate agent employed by the agent, the
Board may, if it is satisfied that there are good
reasons for doing so, permit the premises to be
managed, for such period as the Board is to
specify, by a property consultant employed by
the agent.
8. Management of property management business
(1) A property manager named in Part 2(1) of the
Register must not carry on property management
business except at an authorised place of
business that is managed by the property
22
2005 Property Agents and Land Transactions No. s. 9
manager or by a property manager named in Part
2(2) of the Register employed by the manager.
Penalty: Fine not exceeding 50 penalty units.
(2) A property manager named in Part 2(2) of the
Register must not manage a place where
property management business is carried on
unless it is an authorised place of business for
that business.
Penalty: Fine not exceeding 50 penalty units.
(3) For the purpose of subsection (1), an authorised
place of business where property management
business is carried on is being managed by a
property manager if the manager, although not
necessarily in full-time attendance at the place of
business, is aware of, and has responsibility for,
the day-to-day activities carried on there.
(4) Despite subsection (1), if for any reason an
authorised place of business of a property
manager cannot be managed by the property
manager or by a property manager employed by
the manager, the Board may, if it is satisfied that
there are good reasons for doing so, permit the
premises to be managed, for such period as the
Board is to specify, by an assistant property
manager employed by the manager.
9. Employment of property managers and assistant
property managers
(1) A property manager named in Part 2(1) of the
Register must not employ a person to carry out
the functions of a property manager unless the
person's name appears in Part 2 of the Register
23
s. 10 No. Property Agents and Land Transactions 2005
or the person is an assistant property manager
and is not suspended or disqualified by the
Board from being employed by a property
manager to carry out those functions.
Penalty: Fine not exceeding 500 penalty units.
(2) A person must not, by any means, hold himself
or herself out as being a property manager or an
assistant property manager employed by a
property manager named in Part 2(1) of the
Register unless the person is a property manager
or an assistant property manager employed by
the property manager.
Penalty: Fine not exceeding 500 penalty units.
10. Employment of property consultants by real estate
agents
(1) A real estate agent named in Part 1(1) of the
Register must not employ a person to carry out
the functions of a property consultant on behalf
of the agent unless the person has the
qualifications required by or under this Act to be
a property consultant and is not suspended or
disqualified by the Board from being employed
by a real estate agent to carry out those
functions.
Penalty: Fine not exceeding 500 penalty units.
(2) A person must not, by any means, carry out, or
hold himself or herself out as qualified or
prepared to carry out, any of the functions of a
property consultant unless the person -
24
2005 Property Agents and Land Transactions No. s. 11
(a) has the qualifications required by or
under this Act to be a property
consultant; and
(b) is acting as a property consultant for a
real estate agent by whom the person is
employed.
Penalty: Fine not exceeding 500 penalty units.
(3) A person must not, by any means, hold himself
or herself out as being a property consultant
employed by a real estate agent unless the person
is a property consultant employed by the agent.
Penalty: Fine not exceeding 500 penalty units.
11. Limitations on employees of real estate agents
(1) This section applies to -
(a) a real estate agent who is employed by
another real estate agent to manage a
branch of that agent's real estate agency
business; and
(b) a property manager or an assistant
property manager employed by a real
estate agent in the agent's real estate
agency business; and
(c) a property consultant employed by a real
estate agent in the agent's real estate
agency business.
(2) A person to whom this section applies must not
accept employment by more than one real estate
agent or property manager at any one time.
25
s. 12 No. Property Agents and Land Transactions 2005
Penalty: Fine not exceeding 50 penalty units.
(3) A real estate agent must not employ a person to
whom this section applies if the person is, to the
knowledge of the agent, also employed at the
same time by another real estate agent or by a
property manager.
Penalty: Fine not exceeding 50 penalty units.
12. Limitations on employees of property managers
(1) This section applies to a property manager or an
assistant property manager employed by a
property manager named in Part 2(1) of the
Register.
(2) A person to whom this section applies must not
accept employment by more than one real estate
agent or property manager at any one time.
Penalty: Fine not exceeding 50 penalty units.
(3) A property manager must not employ a person to
whom this section applies if the person is, to the
knowledge of the manager, also employed at the
same time by another property manager or by a
real estate agent.
Penalty: Fine not exceeding 50 penalty units.
13. Real estate agent to keep record of certain
employees
(1) This section applies to a real estate agent named
in Part 1(1) of the Register.
26
2005 Property Agents and Land Transactions No. s. 13
(2) Where the agent employs a person -
(a) to manage an authorised place of
business where the agent carries on real
estate agency business; or
(b) to carry out any of the property
management functions of that business;
or
(c) to carry out any of the property
consultant functions of that business -
the agent must enter details of the person in a
register kept by the agent for the purpose.
Penalty: Fine not exceeding 50 penalty units.
(3) The details to be entered in the register are -
(a) the name and address of the person
employed; and
(b) the capacity in which the person is
employed; and
(c) the date on which the person commenced
employment with the agent; and
(d) in the case of a person employed as a
property consultant, his or her relevant
qualifications.
(4) If the agent ceases to employ a person whose
details are entered in the register, the agent
must -
(a) record when the person ceased to be
employed by the agent; and
27
s. 14 No. Property Agents and Land Transactions 2005
(b) if requested to do so by the Board,
provide the Board with written details of
the reason why the person ceased to be
employed by the agent.
Penalty: Fine not exceeding 50 penalty units.
(5) The agent must include in the register the date
when the register was started and the date of
each entry in it.
Penalty: Fine not exceeding 50 penalty units.
(6) The agent must make the register available to the
Board at any time upon request.
Penalty: Fine not exceeding 50 penalty units.
14. Property manager to keep record of certain
employees
(1) This section applies to a property manager
named in Part 2(1) of the Register.
(2) Where the property manager employs a person,
including another property manager or an
assistant property manager -
(a) to manage an authorised place of
business where the manager carries on
property management business; or
(b) to carry out any of the property
management functions of that business -
the manager must enter the name and address of
the person in a register kept by the manager for
the purpose.
28
2005 Property Agents and Land Transactions No. s. 15
Penalty: Fine not exceeding 50 penalty units.
(3) If the property manager ceases to employ a
person named in the register, the manager must -
(a) record when the person ceased to be
employed by the manager; and
(b) if requested to do so by the Board,
provide the Board with written details of
the reason why the person ceased to be
employed by the manager.
Penalty: Fine not exceeding 50 penalty units.
(4) The property manager must include in the
register the date when the register was started
and the date of each entry in it.
Penalty: Fine not exceeding 50 penalty units.
(5) The property manager must make the register
available to the Board at any time upon request.
Penalty: Fine not exceeding 50 penalty units.
15. Limitation on employment of certain people by real
estate agents
(1) Except with the consent of the Board, a real
estate agent named in Part 1(1) of the Register
must not engage in any capacity a person who is
disqualified or suspended by the Board from
being employed by such a real estate agent.
Penalty: Fine not exceeding 500 penalty units.
(2) The Board is to keep a register of people to
whom subsection (1) applies and is to make it
29
s. 16 No. Property Agents and Land Transactions 2005
available to real estate agents mentioned in that
subsection.
16. Limitation on employment of certain people by
property managers
(1) Except with the consent of the Board, a property
manager named in Part 2(1) of the Register must
not engage in any capacity a person who is
disqualified or suspended by the Board from
being employed by such a property manager.
Penalty: Fine not exceeding 500 penalty units.
(2) The Board is to keep a register of people to
whom subsection (1) applies and is to make it
available to property managers mentioned in that
subsection.
17. Limitation on employment of certain people by
general auctioneers
(1) Except with the consent of the Board, a general
auctioneer named in Part 3 of the Register must
not engage in any capacity a person who is
disqualified or suspended by the Board from
being employed by such an auctioneer.
Penalty: Fine not exceeding 500 penalty units.
(2) The Board is to keep a register of people to
whom subsection (1) applies and is to make it
available to general auctioneers mentioned in
that subsection.
30
2005 Property Agents and Land Transactions No. s. 18
Division 2 - Remuneration of real estate agents and property
managers
18. Appointment of real estate agents to be in writing
(1) Except by leave of a court, a real estate agent
named in Part 1(1) of the Register is not entitled
to sue for, recover or retain any valuable
consideration for services provided to a person
by the agent in the capacity of a real estate agent
unless the agent has a valid written appointment
to act for the person in that capacity signed by
the person or by a person authorised to sign on
his or her behalf.
(2) An appointment is not valid for the purposes of
subsection (1) unless it is contained in a
document that -
(a) generally sets out the services to be
rendered by the agent; and
(b) if a specific property is the subject of
those services, clearly identifies the
property; and
(c) clearly indicates how any valuable
consideration that the agent may receive
is to be calculated; and
(d) clearly indicates the nature and extent of
the expenses that the agent may incur on
behalf of the client, and how those
expenses are to be recouped; and
(e) clearly sets out how either party to the
agreement may terminate the
appointment and any conditions subject
to which it may be terminated.
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s. 18 No. Property Agents and Land Transactions 2005
(3) An appointment by a person of a real estate
agent named in Part 1(1) of the Register is not a
valid appointment for the purposes of
subsection (1) unless the person obtaining the
signature to the appointment gives a copy of it to
the signatory as soon as practicable after it is
signed.
(4) The onus of proof that subsection (3) was
complied with is on the person who obtained the
signature.
(5) A real estate agent must not -
(a) demand any valuable consideration in
contravention of subsection (1); or
(b) demand any valuable consideration from
a purchaser of any land at a public
auction conducted by the real estate
agent.
Penalty: Fine not exceeding 50 penalty units.
(6) Any valuable consideration received by a real
estate agent in contravention of subsection (1) or
(5) is recoverable as a debt by the person from
whom the real estate agent received it.
(7) Insofar as a written appointment mentioned in
subsection (1) -
(a) is not an agency agreement; and
(b) contains no period for its termination
agreed by the parties to the agreement -
it may be terminated by either party giving to the
other 30 days' written notice of termination.
32
2005 Property Agents and Land Transactions No. s. 19
(8) Insofar as a written appointment mentioned in
subsection (1) is an agency agreement, it is not
valid for a period exceeding 90 days.
(9) However, subsection (8) does not apply if the
agent is engaged by a property developer, being
a person who is developing property whether by
way of construction or alteration solely with a
view to sale.
(10) In this section -
"agency agreement" means an agreement,
between a real estate agent and the owner
of property or a business, under which
the real estate agent agrees, as agent for
the owner, to induce or attempt to induce,
or negotiate with a view to inducing,
people to do all or any of the following:
(a) acquire the property or business;
(b) make an offer to acquire the
property or business;
(c) enter into a contract to acquire
the property or business.
19. Appointment of property managers to be in writing
(1) Except by leave of a court, a property manager
named in Part 2(1) of the Register is not entitled
to sue for, recover or retain any valuable
consideration for services provided to a person
by the manager in the capacity of a property
manager carrying on property management
business unless the manager has a valid written
appointment to act for the person in that capacity
33
s. 19 No. Property Agents and Land Transactions 2005
signed by the person or by a person authorised to
sign on his or her behalf.
(2) An appointment is not valid for the purposes of
subsection (1) unless it is contained in a
document that -
(a) generally sets out the services to be
rendered by the property manager; and
(b) if a specific property is the subject of
those services, clearly identifies the
property; and
(c) clearly indicates how any valuable
consideration that the manager may
receive is to be calculated; and
(d) clearly indicates the nature and extent of
the expenses that the manager may incur
on behalf of the client, and how those
expenses are to be recouped; and
(e) clearly sets out how either party to the
agreement may terminate the
appointment and any conditions subject
to which it may be terminated.
(3) An appointment by a person of a property
manager named in Part 2(1) of the Register is
not a valid appointment for the purposes of
subsection (1) unless the person obtaining the
signature to the appointment gives a copy of it to
the signatory as soon as practicable after it is
signed.
(4) The onus of proof that subsection (3) was
complied with is on the person who obtained the
signature.
34
2005 Property Agents and Land Transactions No. s. 20
(5) A property manager must not demand any
valuable consideration in contravention of
subsection (1).
Penalty: Fine not exceeding 500 penalty units.
(6) Any valuable consideration received by a
property manager in contravention of
subsection (1) or (5) is recoverable as a debt by
the person from whom the property manager
received it.
(7) A written appointment mentioned in
subsection (1), whether or not expressed to be
for a fixed period, may be terminated by either
party giving to the other 30 days' written notice
of termination.
20. Property agent to disclose any benefits
(1) Except as provided by subsection (3), a property
agent must disclose to a person for whom the
agent is appointed to act in relation to a property
or to a purchase of a property -
(a) any benefit received by the agent from a
third party or given by the agent to a
third party in exchange for the referral of
business to the agent; or
(b) any other benefit the agent receives or is
to receive as a result of that appointment.
Penalty: Fine not exceeding 500 penalty units.
(2) If a property agent fails to comply with
subsection (1) -
35
s. 21 No. Property Agents and Land Transactions 2005
(a) any fee or other amount the agent may
otherwise have been entitled to receive
from the person for whom the agent is
engaged to act is not payable; and
(b) any such fee or amount paid may be
recovered in a court of competent
jurisdiction as a debt due to the person
who made the payment.
(3) Subsection (1) does not apply to a benefit worth
$100 or less.
(4) In this section -
"benefit" includes commission.
21. Fees not recoverable in certain circumstances
(1) A person is not entitled to bring an action to
recover any valuable consideration for services
provided by the person in the capacity of a real
estate agent named in Part 1(1) of the Register
unless the person was such a real estate agent
both when engaged to act as a real estate agent
and when acting as a real estate agent.
(2) A real estate agent is not entitled to bring an
action to recover any valuable consideration for
services performed by the agent in the course of
any real estate agency business carried on by the
agent unless the agent has furnished to the
person against whom the action is to be brought
a written statement setting out details of those
services and the amount claimed in respect of
each service.
36
2005 Property Agents and Land Transactions No. s. 22
(3) A person is not entitled to bring an action to
recover any valuable consideration for services
provided by the person in the capacity of a
property manager carrying on property
management business unless the person was a
property manager named in Part 2(1) of the
Register both when engaged to act as a property
manager and when acting as a property manager.
(4) A property manager is not entitled to bring an
action to recover any valuable consideration for
services performed by the property manager in
the course of carrying on property management
business unless the property manager has
furnished to the person against whom the action
is to be brought a written statement setting out
details of those services and the amount claimed
in respect of each service.
Division 3 - Offences in respect of property agents
22. Conflict of interest - acquisition of property
(1) A real estate agent or a person employed or
engaged by a real estate agent must not acquire
or attempt to acquire, directly or indirectly, an
interest in property that the agent is instructed to
sell.
Penalty: Fine not exceeding 500 penalty units.
(2) A real estate agent is guilty of an offence if a
person employed or engaged by the agent
acquires or attempts to acquire, directly or
indirectly, an interest in property that the agent is
instructed to sell.
Penalty: Fine not exceeding 500 penalty units.
37
s. 22 No. Property Agents and Land Transactions 2005
(3) A director or similar officer of a real estate agent
that is a company must not acquire or attempt to
acquire, directly or indirectly, an interest in
property that the agent is instructed to sell.
Penalty: Fine not exceeding 500 penalty units.
(4) A real estate agent that is a company is guilty of
an offence if a director or similar officer of the
company acquires or attempts to acquire,
directly or indirectly, an interest in property that
the agent is instructed to sell.
Penalty: Fine not exceeding 500 penalty units.
(5) It is a defence for a person charged with an
offence under subsection (1), (2), (3) or (4) for
the person to show that the acquisition was made
with the written approval of the owner of the
property given before negotiations for the
acquisition of the interest were entered into and
after a full disclosure of all the relevant facts by
the person seeking the approval.
(6) A person is guilty of an offence under
subsection (1), (2), (3) or (4) if the person
acquired the interest either in the course of
business or in a private capacity.
(7) Without prejudice to the generality of
subsections (1), (2), (3) and (4), a person is taken
to acquire an interest in property for the purposes
of any of those subsections if an interest in the
property is acquired by or on behalf of a relative
of the person.
(8) It is a defence for a person charged with an
offence under subsection (1), (2), (3) or (4) for
the person to show that -
38
2005 Property Agents and Land Transactions No. s. 23
(a) the person acted honestly and reasonably;
and
(b) the person who sold the property is in
substantially as good a position as if the
provisions of the subsection had been
complied with.
(9) A real estate agent must not, directly or
indirectly, demand, receive or hold any valuable
consideration in respect of a transaction in which
the agent, a person employed or engaged by the
agent, or a director or similar officer of the agent
has acquired an interest in property in
contravention of this section.
(10) A court before which a person has been
convicted of an offence under this section is to
order -
(a) the person to pay to the vendor of the
property any profit that was made, or, in
the court's opinion, is likely to be made,
from the acquisition of the property or
from any related transaction; and
(b) that any commission or other valuable
consideration received or held by a real
estate agent in contravention of
subsection (9) be paid to the vendor of
the property.
23. Conflict of interest - sale of property
(1) A real estate agent must not, in the course of
business as a real estate agent, sell or attempt to
sell, directly or indirectly, an interest in property
owned by -
39
s. 24 No. Property Agents and Land Transactions 2005
(a) the real estate agent; or
(b) a person employed or engaged by the real
estate agent; or
(c) where the real estate agent is a company,
a director or similar officer of the
company; or
(d) a relative of a person mentioned in
paragraph (a), (b) or (c) -
unless a full disclosure of all the relevant facts is
made before the sale or the attempt to sell.
Penalty: Fine not exceeding 500 penalty units.
(2) A court before which a real estate agent has been
convicted of an offence under subsection (1) is
to order that the agent pay to any purchaser of
the property any profit that, in the court's
opinion, was made but would not have been
made if there had been a full disclosure of all the
relevant facts.
(3) It is a defence for a person charged with an
offence under subsection (1)(d) for the person to
show that he or she could not reasonably have
known that a person was a relative of a person
mentioned in paragraph (a), (b) or (c) of
subsection (1).
24. Franchising agreements
(1) In this section -
"franchising agreement" means an
agreement that permits a real estate agent
to carry on real estate agency business on
40
2005 Property Agents and Land Transactions No. s. 25
the condition that another person who is
entitled to carry on real estate agency
business (whether in Tasmania or
elsewhere) receives any valuable
consideration.
(2) If a real estate agent carries on real estate agency
business pursuant to a franchising agreement -
(a) each party to the agreement is guilty of
an offence under section 144 if the real
estate agent fails to comply with that
section; and
(b) the parties to the agreement are each
liable if criminal or fraudulent conduct in
the course of the real estate agency
business causes pecuniary or property
loss to another person.
(3) A real estate agent carrying on real estate agency
business under a franchising agreement must
include the name of the franchisee on the
premises from which the agent carries on that
business.
25. Notice to be displayed by real estate agents
(1) A real estate agent must display at each
authorised place of business, in a conspicuous
position where it may be easily read, a notice
stating the agent's name and the fact that the
agent is a real estate agent.
Penalty: Fine not exceeding 50 penalty units.
(2) If a real estate agent ceases to carry on real estate
agency business at an authorised place of
41
s. 26 No. Property Agents and Land Transactions 2005
business, the agent must remove or obliterate the
notice as soon as practicable.
Penalty: Fine not exceeding 50 penalty units.
26. Notice to be displayed by property managers
(1) A property manager named in Part 2(1) of the
Register must display at each authorised place of
business, in a conspicuous position where it may
be easily read, a notice stating the manager's
name and the fact that the manager is a property
manager.
Penalty: Fine not exceeding 50 penalty units.
(2) If a property manager ceases to carry on property
management business at an authorised place of
business the manager must remove or obliterate
the notice as soon as practicable.
Penalty: Fine not exceeding 50 penalty units.
27. Requirements of advertisements by real estate
agents
A real estate agent who publishes an
advertisement in connection with his or her real
estate agency business must ensure that the
advertisement contains the real estate agent's
name and the address of his or her authorised
place of business.
Penalty: Fine not exceeding 50 penalty units.
42
2005 Property Agents and Land Transactions No. s. 28
28. Requirements of advertisements by property
managers
A property manager named in Part 2(1) of the
Register who publishes an advertisement in
connection with his or her property management
business must ensure that the advertisement
contains the property manager's name and the
address of his or her authorised place of
business.
Penalty: Fine not exceeding 50 penalty units.
29. False advertising, &c., by real estate agents
(1) A real estate agent must not publish information
that the agent knows -
(a) falsely states that particular property is to
be sold or that a particular business is to
be sold; or
(b) contains a false or misleading statement
or representation in respect of property
that is or is stated to be available for
purchase, or a business that is or is stated
to be available for purchase.
Penalty: Fine not exceeding 500 penalty units.
(2) In proceedings for an offence under
subsection (1), proof of the publication of
information that represents a specified person to
be a real estate agent is evidence that the person
published the information.
43
s. 30 No. Property Agents and Land Transactions 2005
30. False advertising, &c., by property managers
(1) A property manager named in Part 2(1) of the
Register must not publish information that the
manager knows -
(a) falsely states that a particular property is
managed by the manager; or
(b) contains a false or misleading statement
or representation in respect of the
property that is or is stated to be
available for letting.
Penalty: Fine not exceeding 500 penalty units.
(2) In proceedings for an offence under
subsection (1), proof of the publication of
information that represents a specified person to
be a property manager is evidence that the
person published the information.
31. Name under which real estate agents may carry on
business
(1) Except as provided by subsection (2), a real
estate agent must not carry on real estate agency
business except under the name of the agent or,
where agents are carrying on business in
partnership, the names of the agents.
Penalty: Fine not exceeding 50 penalty units.
(2) The Board may authorise a real estate agent, or
agents carrying on business in partnership, to
carry on real estate agency business under a
name in addition to, or in substitution for, the
name of the agent or agents.
44
2005 Property Agents and Land Transactions No. s. 32
(3) Where subsection (2) applies, the Board is to
include the authorised name in the entry in the
Register in respect of the agent or agents.
(4) Subsection (2) is subject to the Business Names
Act 1962.
32. Name under which property managers may carry
on business
(1) Except as provided by subsection (2), a property
manager named in Part 2(1) of the Register must
not carry on property management business
except under the name of the property manager
or, where property managers are carrying on
business in partnership, the names of the
managers.
Penalty: Fine not exceeding 50 penalty units.
(2) The Board may authorise a property manager or
managers carrying on business in partnership to
carry on property management business under a
name in addition to, or in substitution for, the
name of the manager or managers.
(3) Where subsection (2) applies, the Board is to
include the authorised name in the entry in the
Register in respect of the manager or managers.
(4) Subsection (2) is subject to the Business Names
Act 1962.
45
s. 33 No. Property Agents and Land Transactions 2005
PART 3 - AUCTIONS
Division 1 - Control of general auctioneering business
33. General auctioneering business to be carried on by
general auctioneer or real estate agent
(1) A person must not carry on all or any part of
general auctioneering business or hold himself or
herself out as prepared to do so unless the person
is a general auctioneer named in Part 3 of the
Register or a real estate agent named in Part 1(1)
of the Register.
Penalty: Fine not exceeding 1 000 penalty
units.
(2) A person must not conduct a public auction of
land unless that person is a real estate agent
named in Part 1(1) of the Register and the
auction is conducted as part of the real estate
agency business of the agent.
Penalty: Fine not exceeding 50 penalty units.
(3) Despite subsections (1) and (2) -
(a) a public auction authorised by an Act
may be conducted by a person authorised
to do so by the Act; and
(b) a public auction under a writ or process
issued by or out of a court may be
conducted by a person authorised to do
so by the court; and
(c) a public auction, the gross proceeds of
which are to be used for a charitable
purpose, may be conducted by a person
46
2005 Property Agents and Land Transactions No. s. 34
who is not an auctioneer or agent
mentioned in subsection (1) -
but in each case (whether or not the public
auction is being conducted as part of any
business) this Part otherwise applies to the
auction, and any reference to an auctioneer is to
be taken as including a person conducting an
auction mentioned in this subsection.
34. Management of general auctioneering business
(1) A general auctioneer must not carry on general
auctioneering business except at an authorised
place of business that is managed by the general
auctioneer or by a general auctioneer employed
by the first-mentioned general auctioneer.
Penalty: Fine not exceeding 50 penalty units.
(2) A general auctioneer must not manage a place
where general auctioneering business is carried
on unless it is an authorised place of business for
that business.
Penalty: Fine not exceeding 50 penalty units.
35. Name under which general auctioneer may carry on
business
(1) Except as provided by subsection (2), a general
auctioneer must not carry on general
auctioneering business except under the name of
the auctioneer or, where general auctioneers are
carrying on business in partnership, the names of
the auctioneers.
47
s. 36 No. Property Agents and Land Transactions 2005
Penalty: Fine not exceeding 50 penalty units.
(2) The Board may authorise a general auctioneer or
auctioneers carrying on business in partnership
to carry on general auctioneering business under
a name in addition to, or in substitution for, the
name of the auctioneer or auctioneers.
(3) Where subsection (2) applies, the Board is to
include the authorised name in the entry in the
Register in respect of the auctioneer or
auctioneers.
(4) Subsection (2) is subject to the Business Names
Act 1962.
36. Notice to be displayed
(1) A general auctioneer must exhibit at each
authorised place of business, in a conspicuous
position where it may be easily read, a notice
stating the auctioneer's name and the fact that
the auctioneer is a general auctioneer.
Penalty: Fine not exceeding 50 penalty units.
(2) If a general auctioneer ceases to carry on general
auctioneering business at an authorised place of
business, the auctioneer must remove or
obliterate the notice as soon as practicable.
Penalty: Fine not exceeding 50 penalty units.
48
2005 Property Agents and Land Transactions No. s. 37
37. Requirements of advertisements by general
auctioneers
A general auctioneer who publishes an
advertisement in connection with his or her
general auctioneering business must ensure that
the advertisement contains the auctioneer's name
and the address of his or her authorised place of
business.
Penalty: Fine not exceeding 50 penalty units.
38. False advertising, &c., by general auctioneers
(1) A general auctioneer must not publish
information that the auctioneer knows -
(a) falsely states that particular property is to
be auctioned; or
(b) contains a false or misleading statement
or representation in respect of property
that is or is stated to be available for
public auction.
Penalty: Fine not exceeding 500 penalty units.
(2) In proceedings for an offence under
subsection (1), proof of the publication of
information that represents a specified person to
be a general auctioneer is evidence that the
person published the information.
49
s. 39 No. Property Agents and Land Transactions 2005
Division 2 - Conduct at public auctions
39. Misrepresentations at public auctions
A general auctioneer offering property for sale
by public auction must not knowingly
misrepresent the value, composition, structure,
character, quality, origin or manufacture of the
property.
Penalty: Fine not exceeding 500 penalty units.
40. Bids by owner at public auction
(1) At a public auction of land -
(a) the owner of the land must not bid or
cause a person to bid on the owner's
behalf; and
(b) a person must not bid on behalf of the
owner of the land; and
(c) the auctioneer conducting the auction
must not accept a bid from a person who
the auctioneer knows is bidding in
contravention of paragraph (a) or (b).
Penalty: Fine not exceeding 500 penalty units.
(2) A person must not procure another person to
make a bid that is contrary to subsection (1)(b).
Penalty: Fine nor exceeding 500 penalty units.
(3) It is not a defence to a charge for an offence
under subsection (1) to prove that the person
50
2005 Property Agents and Land Transactions No. s. 41
making the bid was not in Tasmania at the time
the bid was made.
(4) For the purposes of subsection (1)(b), a bid may
be found to have been made on behalf of an
owner even though it was not made at the
request of, or with the knowledge of, the owner.
(5) Evidence that a person who made a bid at a
public auction had the intention of benefiting the
owner in making the bid is evidence that the
person made the bid on behalf of the owner.
(6) It is a defence to a charge for an offence under
subsection (1) to prove -
(a) that the land that was auctioned was
owned by more than one person; and
(b) that one or more of those persons was
attempting, in good faith, to acquire a
greater interest in the land; and
(c) that the auctioneer had been advised of
the situation by or on behalf of that
person before the start of the auction.
41. Permissible owner bids
(1) Despite section 40, an auctioneer conducting a
public auction of land may make a bid on behalf
of an owner of the land if -
(a) the conditions under which the auction is
conducted permit the making of the bid;
and
(b) before the bidding starts, the auctioneer
orally declares at the auction that the
51
s. 42 No. Property Agents and Land Transactions 2005
conditions permit the making of the bid;
and
(c) immediately before or in the process of
making the bid, the auctioneer audibly
states that the bid is being made on
behalf of the owner.
(2) A bid mentioned in subsection (1) must be made
by the auctioneer personally and not by a person
acting on behalf of the auctioneer.
(3) It is sufficient compliance with the requirement
of subsection (1)(c) to identify a bid as a bid by
an owner if the auctioneer states "vendor bid" in
making the bid.
(4) It is not sufficient compliance with the
requirement of subsection (1)(c) to identify a bid
as a bid by an owner if the auctioneer merely
identifies the owner by name without stating that
the bidder is an owner.
Penalty: Fine not exceeding 500 penalty units.
42. Dummy bids
An auctioneer conducting a public auction must
not appear to acknowledge the making of a bid if
no bid was made.
Penalty: Fine not exceeding 500 penalty units.
43. Offence to falsely acknowledge bid
A person at a public auction must not -
52
2005 Property Agents and Land Transactions No. s. 44
(a) falsely claim to have made a bid; or
(b) falsely acknowledge that he or she made
a bid.
Penalty: Fine not exceeding 500 penalty units.
44. Conditions of public auctions to be made available
before auction starts
(1) A real estate agent must not conduct a public
auction of land unless, a reasonable time before
the start of the auction, the agent -
(a) has made a copy of the conditions under
which the auction is to be conducted
available for public inspection; and
(b) complies with section 187.
Penalty: Fine not exceeding 50 penalty units.
(2) Subsection (1) is to be taken not to have been
complied with unless -
(a) the conditions were made available for
public inspection at least 7 days before
the start of the auction; and
(b) their availability was published in such a
manner as to bring their availability to
the attention of persons likely to attend
the auction; and
(c) the conditions were also on display for
public inspection immediately before the
auction at the place where it was to be
conducted.
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s. 45 No. Property Agents and Land Transactions 2005
45. Right to compensation if Part breached
A purchaser at a public auction who has suffered
loss or damage as a result of a failure by any
person to comply with a provision of this Part
has a right to claim compensation from that
person.
46. Contrary conditions are void
A condition applying at a public auction that is
contrary to, or that purports to restrict or modify
a requirement imposed by, this Part is void.
47. Last vendor bid to be identified if property passed
in
(1) This section applies where -
(a) a public auction of land is conducted at
which any land is not sold; and
(b) the last bid made before the public
auction stopped was a bid made on
behalf of an owner of the land by the
auctioneer conducting the auction.
(2) In making any statement while marketing the
land, a person must not state the amount of the
last bid without also stating that the bid was a
bid made on behalf of an owner of the land.
Penalty: Fine not exceeding 500 penalty units.
(3) For the purposes of subsection (2), a statement is
made by a person while marketing land if it is
made by or on behalf of the person -
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2005 Property Agents and Land Transactions No. s. 47
(a) in any information published in respect
of the land; or
(b) orally or in writing to a prospective
purchaser of the land.
(4) A person who advises another person of the
amount of the last bid to enable the amount to be
published must also advise that person that the
bid was a bid made on behalf of an owner of the
land.
Penalty: Fine not exceeding 500 penalty units.
(5) A person who is a publisher of public auction
sales results must not publish the fact that any
land was passed in for the amount of the last bid
without also stating that the bid was a bid made
on behalf of an owner of the land.
Penalty: Fine not exceeding 500 penalty units.
(6) It is a defence to a charge for an offence under
subsection (2) or (5) if the person making the
statement, or publishing the amount -
(a) was not present at the auction; and
(b) relied on a statement made by a person
who purported to know what had
happened at the auction.
(7) It is sufficient compliance with subsection (2) or
(5) if the amount is described as a "vendor bid".
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Division 3 - Conduct of public and private auctions
48. Interpretation of Division 3
In this Division -
"auction" means a public or private auction.
49. Certain bidding agreements unlawful
(1) In this section -
"dealer" means a person who in the normal
course of business attends auctions to
purchase property for resale.
(2) A dealer must not give, agree to give or offer a
gift or any other consideration to a person as an
inducement or reward for abstaining or having
abstained from bidding at an auction.
Penalty: Fine not exceeding 500 penalty units.
(3) A person must not accept, agree to accept or
attempt to obtain from a dealer a gift or any
other consideration for abstaining or having
abstained from bidding at an auction.
Penalty: Fine not exceeding 500 penalty units.
50. Collusive practices prohibited at auctions
(1) In this section -
"unlawful promise" means a promise,
expressed or implied, made by a person
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2005 Property Agents and Land Transactions No. s. 50
that if that person is the successful bidder
in respect of property sold at an auction -
(a) the person to whom the promise
was made will have the right to
elect to take over as purchaser
through the auctioneer the
property, or any part of it, at the
auction price; or
(b) the ownership of the property, or
any part of it, will be decided by
a specified method.
(2) A person must not, by means of an unlawful
promise made to a person at an auction, induce
or attempt to induce the person -
(a) to abstain from bidding, either generally
or for any particular lot; or
(b) not to bid, except to a limited extent; or
(c) to do any act or thing which may in any
way prevent or tend to prevent free and
open competition.
Penalty: Fine not exceeding 500 penalty units.
(3) A person at an auction must not, as a result of an
unlawful promise made to that person -
(a) abstain or agree to abstain from bidding,
either generally or for any particular lot;
or
(b) not bid, except to a limited extent; or
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s. 51 No. Property Agents and Land Transactions 2005
(c) do or agree to do any other act or thing
which may in any way prevent or tend to
prevent free and open competition.
Penalty: Fine not exceeding 500 penalty units.
51. Successful bidder to supply information to
auctioneer
(1) A person who makes the successful bid at an
auction must, as soon as practicable after the
acceptance of the bid, give to the auctioneer -
(a) his or her name and address if the bid
was made on his or her own behalf; or
(b) if the bid was made on behalf of another
person, the name and address of the other
person.
Penalty: Fine not exceeding 50 penalty units.
(2) Subsection (1) does not apply if the person who
made the successful bid gave the information
mentioned in subsection (1)(a) or
subsection (1)(b) to the auctioneer before the
auction.
52. Certain notices to be given at auction
A general auctioneer or real estate agent must
not conduct an auction until notice has been
given of the relevant and material parts of
sections 40, 42, 43, 49, 50 and 51 in any manner
and form approved by the Board.
Penalty: Fine not exceeding 50 penalty units.
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2005 Property Agents and Land Transactions No. s. 53
Division 4 - Remuneration of general auctioneers
53. Appointment of general auctioneer to be in writing
(1) Except by leave of a court, a general auctioneer
is not entitled to sue for, recover or retain any
valuable consideration for services provided to a
person by the auctioneer in the capacity of a
general auctioneer unless the auctioneer has a
valid written appointment to act for the person in
that capacity that is signed by the person or by a
person authorised to sign on his or her behalf.
(2) An appointment is not valid for the purposes of
subsection (1) unless it is contained in a
document that -
(a) generally sets out the services to be
rendered by the general auctioneer; and
(b) if specific property is the subject of those
services, clearly identifies the property;
and
(c) clearly indicates how any valuable
consideration the general auctioneer may
receive is to be calculated; and
(d) clearly indicates the nature and extent of
the expenses the general auctioneer may
incur on behalf of the client, and how
those expenses are to be recouped.
(3) An appointment by a person of a general
auctioneer is not a valid appointment of the
auctioneer for the purposes of subsection (1)
unless the person obtaining the signature to the
appointment gives a copy of it to the signatory as
soon as practicable after it is signed.
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(4) The onus of proof that subsection (3) was
complied with is on the person who obtained the
signature.
(5) A general auctioneer must not -
(a) demand any valuable consideration in
contravention of subsection (1); or
(b) demand any valuable consideration from
a purchaser of any real property at a
public auction conducted by the
auctioneer.
Penalty: Fine not exceeding 500 penalty units.
(6) Any valuable consideration received by a
general auctioneer in contravention of
subsection (1) or (5) is recoverable as a debt by
the person from whom the general auctioneer
received it.
54. General auctioneer to disclose any benefits
(1) A general auctioneer must disclose to a person
for whom the auctioneer is appointed to act -
(a) any benefit received by the auctioneer
from a third party or given by the
auctioneer to a third party in exchange
for the referral of business to the
auctioneer; or
(b) any other benefit that the auctioneer
receives or is to receive as a result of that
appointment.
Penalty: Fine not exceeding 500 penalty units.
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2005 Property Agents and Land Transactions No. s. 55
(2) If a general auctioneer fails to comply with
subsection (1), any fee or other amount the
auctioneer may otherwise have been entitled to
receive from the person for whom the auctioneer
is engaged to act is not payable and any amount
paid may be recovered in a court of competent
jurisdiction as a debt due to the person who
made the payment.
(3) Subsection (1) does not apply to a benefit worth
$100 or less.
55. Fees not recoverable in certain circumstances
(1) A person is not entitled to bring an action to
recover any valuable consideration for services
provided by the person in the capacity of a
general auctioneer unless the person was a
general auctioneer both when engaged to act as a
general auctioneer and when acting as a general
auctioneer.
(2) A general auctioneer is not entitled to bring an
action to recover any valuable consideration for
services performed by the auctioneer in the
course of any general auction business carried on
by the auctioneer unless the auctioneer has
furnished to the person against whom the action
is to be brought a written statement setting out
details of those services and the amount claimed
in respect of each service.
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PART 4 - REGISTRATION AND QUALIFICATIONS
Division 1 - Registration
56. Board to maintain Register
(1) The Board is to maintain a Register of Property
Agents.
(2) The Register is to be divided into 3 Parts.
(3) Those Parts are to be -
(a) Part 1 - Real Estate Agents, which is to
contain the name and address of each real
estate agent; and
(b) Part 2 - Property Managers, which is to
contain the name and address of each
property manager; and
(c) Part 3 - General Auctioneers, which is to
contain the name and address of each
general auctioneer who may carry on
general auctioneering business.
(4) The Register may be kept in any form that
permits its contents to be readily inspected in a
legible form by any member of the public in
accordance with section 61.
57. Part 1 of Register
(1) Part 1 of the Register is to be divided into -
(a) Division (1), which is to contain the
name and address of each person who is
carrying on real estate agency business
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2005 Property Agents and Land Transactions No. s. 58
and show, in addition, the address of
each place where that person is carrying
on that business and the name under
which that person is doing so; and
(b) Division (2), which is to contain the
names and addresses of all other such
persons.
(2) Where a real estate agent named in Part 1 of the
Register is a company, the entry in respect of the
agent is also to contain the name and address of
each of the directors of the company who is a
real estate agent.
58. Part 2 of Register
(1) Part 2 of the Register is to be divided into -
(a) Division (1), which is to contain the
name and address of each person who is
carrying on property management
business and show, in addition, the
address of each place where that person
is carrying on that business and the name
under which that person is doing so; and
(b) Division (2), which is to contain the
names and addresses of all other such
persons.
(2) Where a property manager named in Part 2 is a
company, the entry in respect of the manager is
also to contain the name and address of each of
the directors of the company who is a property
manager.
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59. Part 3 of Register
(1) Part 3 of the Register, which is to contain the
name and address of each person who is carrying
on general auctioneering business, is to show, in
addition, the address of each place where that
person may carry on that business and the name
under which that person may do so.
(2) Where a general auctioneer named in Part 3 of
the Register is a company, the entry in respect of
the general auctioneer is also to contain the name
and address of each of the directors of the
company who is a general auctioneer.
60. Application for registration
(1) The Board is to enter the name of a person in the
appropriate Part of the Register if -
(a) the person makes an application to the
Board accompanied by the prescribed fee
and evidence sufficient to prove the
qualifications of the person to be
registered; and
(b) the Board is satisfied that the person has
those qualifications and is a fit and
proper person to be a property agent.
(2) The Board may request an applicant to produce
further evidence to satisfy the Board that the
applicant is qualified to be registered or is a fit
and proper person to be a property agent.
(3) A person is not a fit and proper person to be
registered in Part 1(1), Part 2(1) or Part 3 of the
Register if the person -
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2005 Property Agents and Land Transactions No. s. 61
(a) is an undischarged bankrupt; or
(b) has made a composition or arrangement
with creditors and the debts to which the
composition or arrangement relates have
not been paid in full or the terms of the
composition or arrangement have not
been fulfilled.
(4) Where the applicant is a company, it is not a fit
and proper person to be registered if it -
(a) is in receivership or in liquidation; or
(b) has taken proceedings for voluntary
winding-up (except for the purpose of
reorganisation); or
(c) has a winding-up order made in respect
of it by the Supreme Court; or
(d) has a director, manager, secretary or
other similar officer who is disqualified
or suspended from being a property agent
by virtue of section 120.
(5) Subsections (3) and (4) do not prejudice the
ability of the Board to determine that a person is
not a fit and proper person to be registered as a
property agent on any other grounds.
61. Board to make Register available for public
inspection
The Board is to make the Register available for
public inspection at all reasonable times.
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62. Property agent may apply for licence
(1) A person named in the Register may apply for a
licence.
(2) An application for a licence is to be made to the
Board and is to be accompanied by the
prescribed fee and evidence sufficient to satisfy
the Board that the person is the person entitled to
the licence.
(3) A licence is conclusive evidence that at the date
of its issue -
(a) the name of the person named in the
licence was in the Register; and
(b) that name was entered in the Part of the
Register specified in the licence.
Division 2 - Qualifications
63. Qualifications for registration as real estate agent
(1) The name of a person, not being a company,
may be entered in Part 1 of the Register if the
person -
(a) has the prescribed educational
qualifications; and
(b) has been engaged full-time as a property
manager or property consultant for a total
period of at least 2 years during the 5-
year period immediately preceding the
application for registration.
(2) The name of a person may also be entered in
Part 1 of the Register if the person's name has
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2005 Property Agents and Land Transactions No. s. 64
been in the Register at any time during the 5-
year period immediately preceding the
application for registration.
(3) The name of a person may also be entered in
Part 1 of the Register if the person -
(a) has, at any time during the 5-year period
immediately preceding the application,
been authorised under the law of another
State or a Territory of Australia to carry
on the business of a real estate agent in
that State or Territory; and
(b) has been engaged full-time as a real
estate agent in another State or a
Territory of Australia for a total period of
at least 2 years during the 5-year period
immediately preceding the application
for registration; and
(c) except in the case of a company, has
satisfied the Board, by examination or
inquiry, that he or she has sufficient
knowledge and experience of real estate
agency business to be able to carry on
that business.
(4) The name of a company may be entered in Part 1
of the Register if at least one of its directors or a
person holding a similar position in the company
is also named in that Part.
64. Qualifications for registration as property manager
(1) The name of a person, not being a company,
may be entered in Part 2 of the Register if the
person satisfies the Board, by examination or
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s. 65 No. Property Agents and Land Transactions 2005
inquiry, that the person has sufficient knowledge
and experience of property management
business to be able to carry on that business.
(2) The name of a company may be entered in Part 2
of the Register if at least one of its directors or a
person holding a similar position in the company
is also named in that Part.
65. Qualifications for registration as general auctioneer
(1) The name of a person may be entered in Part 3
of the Register if the person satisfies the Board,
by examination or inquiry, that the person has
sufficient knowledge and experience of general
auctioneering business to be able to carry on that
business.
(2) The name of a company may be entered in Part 3
of the Register if at least one of its directors or a
person holding a similar position in the company
is also named in that Part.
66. Continuing education
(1) Despite any other provision of this Division to
the contrary, a person ceases to be qualified to
continue to be named in the Register unless,
within a period specified by the Board, the
person has undertaken any continuing education
course specified by the Board.
(2) A person named in Part 1(1), Part 2(1) or Part 3
of the Register must maintain a register
containing details of the continuing education
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2005 Property Agents and Land Transactions No. s. 67
undertaken in accordance with subsection (1) by
the person and by any relevant employee.
Penalty: Fine not exceeding 50 penalty units.
(3) The person referred to in subsection (2) must
make the register available to the Board upon
being requested by the Board.
Penalty: Fine not exceeding 50 penalty units.
Division 3 - Period of validity of registration
67. Period of validity of registration
(1) Except as otherwise provided by this Division, if
the name of a person has been entered in the
Register, it remains in the Register -
(a) if the person pays the prescribed annual
registration fee when it becomes due; and
(b) if the Board remains satisfied that the
person continues to have the
qualifications required to be named in the
Register.
(2) The Board is to remove the name of a person
from the Register if -
(a) the person asks the Board to do so; or
(b) the Board is required to do so by or in
accordance with this Act; or
(c) the Board is satisfied that the person has
ceased to be qualified to continue to be
named in the Register; or
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s. 68 No. Property Agents and Land Transactions 2005
(d) the person fails to pay any prescribed
annual registration fee within 30 days
after it became due for payment.
(3) Despite any other provision of this Division, if a
person named in Part 1(1), Part 2(1) or Part 3 of
the Register dies, the personal representatives of
that person are to be taken to be named in the
Register for one year from the death of the
person.
68. Effect of suspension of registration
While the registration of a person is suspended,
the person is to be taken as not being named in
the Register for the purposes of this Act.
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2005 Property Agents and Land Transactions No. s. 69
PART 5 - PROPERTY AGENTS BOARD
Division 1 - Establishment of Board
69. Property Agents Board established
(1) There is established a Board called the Property
Agents Board.
(2) The Board -
(a) is a body corporate with perpetual
succession; and
(b) may sue and be sued in its corporate
name; and
(c) may have a seal.
(3) If the Board has a seal -
(a) it is to be kept and used as authorised by
the Board; and
(b) all courts and persons acting judicially
must take judicial notice of the imprint of
the seal on a document and presume that
the document was duly sealed by the
Board.
70. Membership of Board
(1) The Board consists of 5 members appointed by
the Governor.
(2) Two of the members are to be property agents
who have at least 5 years' experience as property
agents.
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(3) One of the members referred to in subsection (2)
is to be a person nominated by the body that the
Minister is satisfied represents the views of the
majority of property agents and the other is to be
a person nominated by the Minister from a list of
4 persons supplied by that body.
(4) A further 2 members are to be people nominated
by the Minister who are not property agents.
(5) The remaining member, who is to be the Chair
of the Board, is to be a legal practitioner of at
least 5 years' standing who has legal experience
in areas of law relevant to the position.
(6) A member may be appointed for a term not
exceeding 3 years, which is to be specified in the
member's instrument of appointment and, if
eligible, may be reappointed.
(7) A person may accept appointment as a member
of the Board and any remuneration payable to a
member despite the fact that the person is the
holder of an office under an Act that requires the
holder of the office to devote the whole of his or
her time to the duties of the office.
(8) The State Service Act 2000 does not apply in
relation to a member in his or her capacity as a
member of the Board.
71. Conditions of appointment to Board
(1) A member of the Board is to receive
remuneration and allowances determined by the
Minister, which are to be specified in the
member's instrument of appointment.
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2005 Property Agents and Land Transactions No. s. 72
(2) Although a person may be a member of the
Board in conjunction with State Service
employment, a member who is a State Service
officer or State Service employee is not entitled
to any remuneration or allowances as a member
of the Board unless the Minister administering
the State Service Act 2000 decides otherwise.
72. Vacancy in Board membership
(1) A person ceases to be a member of the Board if
the person -
(a) dies; or
(b) resigns by written notice given to the
Minister; or
(c) is removed from office under
subsection (3) or (4); or
(d) ceases to possess any qualification the
member was required to possess to be
appointed a member of the Board.
(2) A person ceases to be a member of the Board if
the person's term of appointment ends and the
person is not reappointed.
(3) The Governor may terminate the appointment of
a person as a member of the Board if the
member -
(a) is absent from 3 consecutive meetings of
the Board without the Board's approval;
or
(b) becomes bankrupt, applies to take the
benefit of a law for the relief of bankrupt
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s. 73 No. Property Agents and Land Transactions 2005
or insolvent debtors, compounds with the
member's creditors or makes an
assignment of the member's
remuneration or estate for their benefit;
or
(c) is convicted, in Tasmania or elsewhere,
of a crime or an offence punishable by
imprisonment for a term exceeding 12
months; or
(d) fails, without reasonable excuse, to
comply with the member's obligation
under this Act to disclose an interest; or
(e) is convicted of an offence against this
Act.
(4) The Governor may also terminate the
appointment of a person as a member of the
Board if the Governor is satisfied that the
member is unable to perform, or is not
performing adequately or competently, the duties
of a member of the Board.
73. Validity of actions by Board
(1) Anything done by the Board or by a person
acting on the direction of the Board is not invalid
despite the fact that at the time it was done the
Board had less than 5 members.
(2) Anything done by the Board or by a person
acting on the direction of the Board is not invalid
despite the fact that it is later discovered -
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2005 Property Agents and Land Transactions No. s. 74
(a) that at the time the action was taken there
was a defect in the appointment of a
member; or
(b) that a member did not possess or had
ceased to possess the qualifications
required to be appointed to be a member
of the Board.
74. Presumptions in respect of Board
In proceedings by or against the Board, proof is
not required of its constitution, of the
appointment of its members, of any resolution of
the Board or of the presence of a quorum at a
meeting of the Board unless evidence is given
that calls the matter into question.
Division 2 - Meetings of Board
75. Meetings of Board
(1) The Chair of the Board may convene a meeting
of the Board at any time and is to do so if so
requested by at least 2 other members of the
Board.
(2) The Chair convenes a meeting of the Board by
giving reasonable notice of the time and place of
the meeting to the other members of the Board.
(3) If at any time there is no Chair of the Board or if
the Chair is unable to perform the duties of
Chair, a meeting of the Board may be convened
by 2 or more members of the Board giving
reasonable notice of the time and place of the
meeting to the other members of the Board.
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76. Presiding at meetings of Board
(1) The Chair of the Board is to preside at meetings
of the Board at which the Chair is present.
(2) If at the time of a meeting of the Board there is
no Chair of the Board or if the Chair is not
present, the members present are to elect one of
their number to preside.
77. Procedure at meetings of Board
(1) A meeting of the Board has a quorum if 3
members are present and if one of them is a
property agent and another member is not a
property agent.
(2) Such a meeting of the Board may transact any
business of the Board.
(3) A question at a meeting of the Board is to be
decided by a majority of votes of the members
present and voting, with the member presiding
having only a deliberative vote.
(4) On an equality of votes on a question, the
question stands adjourned until the next meeting
of the Board unless sooner withdrawn by the
member who moved the question.
(5) The Board is to keep accurate minutes of its
meetings.
(6) Except as otherwise provided by this Act, the
Board may regulate the conduct of its business.
(7) The Board may, in particular, allow a member to
participate in a meeting of the Board by
telephone, by video conferencing or by any other
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2005 Property Agents and Land Transactions No. s. 78
means approved by the Board, and, in such a
case, determine that the member is present at the
meeting for the purpose of this Part.
(8) A meeting of the Board is not to be open to the
public, but the Board may allow a person to
attend a meeting if it is satisfied that it is
appropriate to do so.
(9) The Board is to determine the way in which its
decisions are to be published.
(10) It may determine that all or any part of a
decision is not to be published where to do so
might reveal -
(a) privileged information or information
communicated to the Board in
confidence; or
(b) information that concerns a person's
personal affairs, finances or business
arrangements.
78. Interests to be disclosed by Board members
(1) This section applies to a member of the Board
who has or acquires an interest (whether
pecuniary or otherwise) that would conflict with
the proper performance of the member's
functions in relation to a matter being
considered, or about to be considered, by the
Board.
(2) The member must, as soon as practicable after
the relevant facts come to the member's
knowledge, disclose the nature of the interest to
the Board.
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(3) Except with the approval of the Board, the
member must not -
(a) be present during any deliberation of the
Board in relation to the matter; or
(b) take part in a decision of the Board in
respect of the matter.
(4) The member must not be present when the Board
is considering whether to give its approval under
subsection (3).
79. Indemnity
(1) An action does not lie against a member,
employee or agent of the Board or against a
member of a committee established by the Board
for an act or omission by the member, employee
or agent, or by the Board or a committee, in
good faith and in the exercise or purported
exercise of a function under this Act.
(2) A person who, in good faith, makes a complaint
under Part 6 does not incur personal liability for
loss, damage or injury that another person
suffers as a result of the complaint being made.
Division 3 - Duty of Board
80. Duty of Board
(1) It is the duty of the Board -
(a) to maintain the Register in accordance
with this Act to ensure that only people
who have the necessary experience and
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2005 Property Agents and Land Transactions No. s. 80
qualifications to do so, and are not
otherwise unfit to do so, are permitted to
act as property agents; and
(b) to administer the approval of
qualifications held by people to ensure
that only those that have the prescribed
qualifications to do so, and are not
otherwise unfit to do so, are permitted to
act as property agents; and
(c) to ensure that property agents comply
with the requirements of this Act relating
to their conduct in carrying on their
businesses or in carrying out their
functions and, where they fail to do so, to
take appropriate disciplinary action to
protect the public and to discourage such
conduct; and
(d) to ensure that people who are not
permitted under this Act to do so do not
act as property agents; and
(e) to develop and ensure compliance with a
Code of Conduct for property agents; and
(f) to receive, investigate and determine
complaints against property agents; and
(g) to supervise the trust accounts of real
estate agents named in Part 1(1) of the
Register, property managers named in
Part 2(1) of the Register and general
auctioneers named in Part 3 of the
Register; and
(h) to advise property agents on appropriate
standards of conduct; and
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s. 80 No. Property Agents and Land Transactions 2005
(i) to monitor, identify and report to the
Minister trends and issues that emerge
within the property agents industry; and
(j) to carry out educational functions in
relation to the property agents industry;
and
(k) to advise the Minister on matters relating
to this Act including its efficacy and on
any other matters relevant to the Board's
functions or to the property agents
industry; and
(l) to carry out any other function imposed
on the Board by this or any other Act.
(2) The duty mentioned in subsection (1)(f)
includes -
(a) referring serious complaints to the
Tribunal for hearing and determination;
and
(b) referring complaints involving alleged
criminal conduct to the Commissioner of
Police.
(3) The educational functions mentioned in
subsection (1)(j) include -
(a) providing input into establishing the
standards of education for property
agents; and
(b) conducting or supervising the conduct of
examinations as necessary; and
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2005 Property Agents and Land Transactions No. s. 81
(c) determining the subjects in which
property agents are required to qualify;
and
(d) approving courses of practical instruction
on the functions of property agents.
(4) For the purposes of this section -
"serious complaint" means a complaint in
respect of a serious offence, within the
meaning of Part 6.
81. Code of Conduct to be developed by Board
(1) It is a duty of the Board to establish and keep
under review a Code of Conduct for property
agents to regulate their professional practice,
conduct and discipline.
(2) The Code may relate to provisions of this Act in
respect of -
(a) the registration of property agents; and
(b) the qualifications required for each class
of property agent; and
(c) the revocation or suspension of, or the
imposition of conditions on, the
registration of property agents; and
(d) the reasons for prohibiting a person from
undertaking certain activities within the
property agents industry; and
(e) the supervision of trust accounts,
including the keeping, inspection and
auditing of records relating to money
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received, held or paid on behalf of
clients.
(3) The Code is to contain guidance on what
constitutes unsatisfactory professional conduct
and professional misconduct.
(4) In drawing up the Code or any amendment to it,
the Board is to consult with each body that it
considers represents the interests of property
agents and relevant consumers.
(5) A requirement of the Code may be made so as to
apply -
(a) differently according to factors,
limitations or restrictions specified in the
Code; or
(b) to a particular property agent or a defined
class of property agents.
(6) The Board is to cause the Code and every
revised edition of it to be printed and issued to
each property agent.
(7) The Board is also to publish the Code in such a
manner as to make it easily available to members
of the public.
(8) The Code or any amendment of it is to have
effect from a prescribed date.
(9) The Code or any amendment is to be set out in a
Schedule to the regulations.
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Division 4 - Powers, &c., of Board
82. Powers of Board
(1) The Board has the power to do everything
necessary or convenient to be done to enable it
to perform its functions.
(2) This power includes the power to prescribe,
publish and charge fees and charges for
performing its functions under this Act for which
no other fee or charge has been prescribed.
(3) A fee or charge due to the Board and unpaid may
be recovered in a court of competent jurisdiction
as if it were a debt due to the Board.
83. Delegation by Board
The Board may delegate any of its functions
under this or any other Act except this power of
delegation and the power to discipline property
agents.
84. Contracts with Board
(1) The Board may enter into contracts in respect of
its functions.
(2) The Board may enter into a contract with a
person to permit the person to exercise a
function of the Board on its behalf.
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85. Committees of Board
(1) The Board may establish committees to assist it
to perform its functions.
(2) A committee need not consist of or include
members of the Board but may do so.
(3) The Board may pay a member of a committee
remuneration and allowances.
(4) A member of a committee who is a State Service
officer or State Service employee is not to be
paid remuneration or allowances mentioned in
subsection (3) unless the Minister administering
the State Service Act 2000 determines otherwise.
(5) A committee is to comply with any written
direction given to it by the Board.
(6) A committee is to keep accurate minutes of its
proceedings.
(7) A committee is to regulate its proceedings in
accordance with any directions given by the
Board but may otherwise regulate its own
proceedings.
86. Employees of Board
(1) The Board is to employ a suitably qualified
person to be its executive officer and may
employ such other persons as it considers
necessary.
(2) The executive officer is to act as the secretary to
the Board.
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2005 Property Agents and Land Transactions No. s. 87
(3) The State Service Act 2000 does not apply to a
person employed by the Board.
87. Confidentiality
(1) This section applies to a person who obtains
information -
(a) as a member of the Board; or
(b) as a member of a committee of the
Board; or
(c) as an employee or agent of the Board.
(2) A person to whom this section applies must not
divulge the information mentioned in
subsection (1) otherwise than as provided by this
section.
Penalty: Fine not exceeding 500 penalty units.
(3) The person may divulge the information -
(a) in so far as it is necessary to do so to
carry out his or her duties under this Act
or as an employee or agent of the Board;
or
(b) in so far as it is necessary to do so to
comply with this Act or any other Act; or
(c) in evidence before a court.
(4) A person may divulge the information to all or
any of the following:
(a) the Board;
(b) the Minister;
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(c) a member of a law enforcement or
prosecution authority of the
Commonwealth or another State or a
Territory, in relation to a matter referred
to the authority by the Minister or
reported to the authority by the Board;
(d) a regulatory authority of another State or
a Territory that has agreed to provide
similar information to the Board, if
requested, and that has requested the
information in connection with any
actual or possible disciplinary action
against a property agent of that State or
Territory;
(e) a person to whom the Board has
delegated its power to investigate
pursuant to this Act.
(5) Nothing in this section prevents the disclosure of
information relating to a complaint to the
complainant or to a person acting on behalf of
the complainant.
(6) This section does not apply to information that is
in the public domain or information that the
person giving the information has agreed may be
released to the public.
Division 5 - Finance of Board
88. Funds of Board
(1) The Board is to keep an account with an
authorised deposit-taking institution into which
it is to pay money it receives.
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2005 Property Agents and Land Transactions No. s. 89
(2) The Board is to use any money received by it to
carry out its functions.
(3) In particular, the Board is to use that money -
(a) to ensure compliance with this Act and
the Code of Conduct; and
(b) to pay people who have performed any
function of the Board on its behalf; and
(c) to pay the remuneration and allowances
of its members and employees; and
(d) to pay the costs incurred by the Tribunal.
(4) The Board may invest any money held by it that
is not immediately required in any manner in
which a trustee is authorised by law to invest its
funds.
89. Accounts
(1) The Board is to keep proper accounts and
records of its financial transactions.
(2) Within the period of 3 months after the end of
each financial year, the Board is to prepare a
statement of accounts in a form that accords with
the applicable Australian accounting standards.
(3) The statement of accounts for a financial year
must show a true and correct view of -
(a) the Board's financial position at the end
of the year; and
(b) its transactions during the year.
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90. Audit
The accounts of the Board must be audited by an
auditor.
91. Annual report
(1) Within 3 months after the end of each financial
year, the Board is to prepare and present to the
Minister a report on its operations for the
previous financial year.
(2) The report is to contain -
(a) the Board's audited statement of
accounts prepared for the financial year;
and
(b) details of the number of names the Board
entered in the Register during the
financial year; and
(c) a statement specifying the number and
nature of complaints the Board received
in respect of property agents during the
financial year; and
(d) a statement specifying the manner in
which the Board handled complaints
during the financial year, setting out the
number it dismissed, the number it dealt
with itself, the number it referred to the
Tribunal and the number outstanding at
the end of the financial year both before
the Board and the Tribunal; and
(e) a statement giving details of any
disciplinary action the Board took
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2005 Property Agents and Land Transactions No. s. 91
against property agents during the
financial year; and
(f) any report the Tribunal made to the
Board in accordance with this Act.
(3) The Board must include in the report any further
information required by the Minister and may
include any other information it considers
appropriate.
(4) The Minister is to cause a copy of the Board's
report to be laid before each House of Parliament
within one month of having received it from the
Board.
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PART 6 - COMPLAINTS AND DISCIPLINE
Division 1 - Complaints about conduct of property agents
92. Interpretation of Part 6
(1) In this Part -
"conduct", in relation to a property agent,
means conduct of the property agent
whether consisting of an act or an
omission;
"conduct complaint" means a complaint that
appears to involve an issue of
unsatisfactory professional conduct or
professional misconduct or a conviction
for a serious offence;
"professional misconduct" includes -
(a) unsatisfactory professional
conduct of a property agent,
where the conduct involves a
substantial or consistent failure to
reach or maintain a reasonable
standard of competence and
diligence; and
(b) conduct of a property agent
whether occurring when acting as
a property agent or occurring
otherwise than when acting as a
property agent, that would, if
established, justify a finding that
the property agent is not a fit and
proper person to continue to act
as a property agent;
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2005 Property Agents and Land Transactions No. s. 92
"serious offence" means an offence, whether
committed in or outside Tasmania, that
is -
(a) an indictable offence against a
law of the Commonwealth or the
State or Territory in which the
offence is committed (whether or
not the offence is or may be dealt
with summarily); or
(b) an offence against a law of
another State or a Territory that
would be an indictable offence
against a law of Tasmania if
committed in Tasmania (whether
or not the offence could be dealt
with summarily if committed in
Tasmania); or
(c) an offence against a law of a
foreign country that would be an
indictable offence against a law
of the Commonwealth or
Tasmania if committed in
Tasmania (whether or not the
offence could be dealt with
summarily if committed in
Tasmania);
"unsatisfactory professional conduct"
includes conduct of a property agent
when acting as a property agent that falls
short of the standard of competence and
diligence that a reasonable member of the
public is entitled to expect from a
reasonably competent property agent.
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(2) Where it is proved that unsatisfactory
professional conduct or professional misconduct
committed by a person employed or engaged by
a real estate agent named in Part 1(1) of the
Register, a property manager named in Part 2(1)
of the Register or a general auctioneer named in
Part 3 of the Register was committed with the
consent or connivance of, or was attributable to
neglect or default on the part of, the agent,
manager or auctioneer, the agent, manager or
auctioneer is also guilty of that conduct.
93. Complaints about conduct of property agents
(1) Any person may make a conduct complaint to
the Board about a property agent.
(2) The fact that a person has suffered no economic
loss or that no legal right of the person has been
affected by the conduct complained about does
not bar the person from making a conduct
complaint to the Board about the property agent.
(3) The fact -
(a) that the registration of a property agent
was suspended or had been cancelled; or
(b) that the right of a person to be employed
as a property consultant had been
cancelled or suspended -
at the time of the conduct complained about does
not affect a person's right under this section to
complain to the Board about that conduct.
(4) The fact that a person has ceased -
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2005 Property Agents and Land Transactions No. s. 94
(a) to act as a property agent; or
(b) to carry on real estate agency business,
property management business or general
auctioneering business -
since the time of the conduct complained about
does not affect a person's right under this section
to complain to the Board about that conduct.
(5) In such a case, this Part applies in relation to the
conduct of the person in the same way as it
would if the person were qualified to act as a
property agent.
94. Application of Code of Conduct
(1) The Code of Conduct is to contain guidance on
what does or does not constitute unsatisfactory
professional conduct and professional
misconduct.
(2) The Code is to specify, in particular, the
obligation that a real estate agent named in Part
1(1) of the Register, a property manager named
in Part 2(1) of the Register or a general
auctioneer named in Part 3 of the Register has to
supervise people employed or engaged by the
agent, manager or auctioneer, and the agent's,
manager's or auctioneer's liability if he or she
fails to carry out that obligation.
(3) A failure on the part of a property agent to
observe a provision of the Code does not of itself
render the property agent liable to disciplinary
action being taken against the property agent
under this Act, but the failure may be relied upon
as tending to establish that the property agent
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was guilty of unsatisfactory professional conduct
or professional misconduct.
95. Complaints procedure
(1) A conduct complaint made to the Board is to be
made in writing and lodged with the Board's
executive officer.
(2) The executive officer is to record receipt of the
complaint by the Board and bring it to the
Board's attention at the first practicable
opportunity.
(3) The executive officer is not to accept a conduct
complaint unless it -
(a) includes the complainant's name and
indicates how the complainant would
like to be contacted should it be
necessary for the Board to do so; and
(b) sets out adequate details of the conduct
complained about; and
(c) sets out the name and address of the
property agent against whom the
complaint is being made or sufficient
information to identify the property
agent.
(4) The executive officer is to provide any
reasonable assistance that a person may require
in order to lodge a conduct complaint with the
Board.
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2005 Property Agents and Land Transactions No. s. 96
(5) The Board may at any time require a
complainant to provide further particulars of the
conduct complained about.
(6) The Board may require any information
provided to it in respect of a conduct complaint
to be verified by statutory declaration.
(7) If the complainant has already complained to the
property agent about the conduct of the agent,
the conduct complaint mentioned in
subsection (3) is to also contain details of the
action taken by the complainant and any action
taken by the agent as a result of the complaint.
96. Time limits for complaints
(1) The Board is not to accept a conduct complaint
under this Part made more than 2 years after the
conduct complained about is alleged to have
occurred unless it satisfies itself that -
(a) it would not cause injustice to accept the
complaint; or
(b) it is in the public interest to investigate
the complaint.
(2) The Board may accept a conduct complaint
made under this Part although the conduct
complained about is alleged to have occurred
before the commencement of this section.
97. Dismissal of complaints
(1) The Board may dismiss a conduct complaint if -
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(a) any information it requests the
complainant to provide to it is not
provided within a reasonable time; or
(b) any information it has requested be
verified by a statutory declaration is not
verified in that way within a reasonable
time.
(2) The Board may also dismiss a conduct complaint
if, after considering all the information provided
to it, the Board is satisfied that the complaint is
vexatious, misconceived, frivolous or lacking in
substance.
(3) The Board is to dismiss a conduct complaint if it
is satisfied that the conduct complained about
has been the subject of a previous complaint
either by the same or another person and that the
appropriate action was taken in respect of the
complaint.
98. Withdrawal of complaints
(1) A complainant may give written notice to the
executive officer of the Board withdrawing the
conduct complaint.
(2) The executive officer is to bring the notice to the
attention of the Board at the first practicable
opportunity.
(3) Despite the receipt of the notice, the Board may
continue investigating the complaint if it is
satisfied that it is in the public interest to do so.
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2005 Property Agents and Land Transactions No. s. 99
(4) The withdrawal of a conduct complaint is of no
effect if the Board has referred the complaint to
the Tribunal.
(5) If the Board agrees to a conduct complaint being
withdrawn, it is to notify the property agent that
is the subject of the complaint accordingly.
(6) The withdrawal of a conduct complaint does not
prevent a conduct complaint being made by any
other person in respect of the same conduct by
the property agent.
(7) Where a conduct complaint in respect of a
property agent has been withdrawn, the person
who made the complaint has no right to make a
further conduct complaint about the same
conduct without the approval of the Board and
the Board is not to give such approval unless it is
satisfied that there exists sufficient justification
for accepting the complaint again.
Division 2 - Procedure in dealing with complaints
99. Property agent to be notified of complaint
(1) The Board must, within 7 days of receiving a
conduct complaint in respect of a property agent,
give the agent written notice of receipt of the
complaint.
(2) Despite subsection (1), the Board may withhold
for a reasonable time giving notice in accordance
with that subsection if it is satisfied that giving
the notice may prejudice the investigation of the
complaint.
(3) A notice given under subsection (1) must -
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(a) set out details of the conduct complained
about; and
(b) inform the property agent that the Board
seeks submissions from the agent in
respect of that conduct; and
(c) contain details of any action already
taken by the Board in respect of the
complaint.
100. Consideration of conduct complaint
(1) The Board is to consider a conduct complaint in
respect of a property agent and any submissions
made by the agent and decide on the action to be
taken in respect of the complaint.
(2) The Board must then give the complainant and
the property agent written notification of the
action it has decided to take in respect of the
complaint.
(3) If that action is to dismiss the complaint, the
Board must notify the complainant of his or her
right to apply to the Tribunal for a review of the
decision.
101. Conduct complaints must be investigated
(1) Although it is the duty of the Board to deal with
each conduct complaint it receives in accordance
with this Part, it need not wait for a conduct
complaint before investigating the conduct of a
property agent but may of its own volition
investigate the conduct of a property agent.
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2005 Property Agents and Land Transactions No. s. 102
(2) Where it does so, the resolution of the Board to
do so is to be taken as the receipt by the Board of
a conduct complaint.
(3) In such a case, the complainant is to be taken to
be the Board, but nothing in this Part is to be
taken as requiring the Board to serve any notice
on itself.
102. Preliminary investigation of conduct complaints
(1) The Board may decide that a conduct complaint
in respect of a property agent is to be the subject
of a preliminary investigation by a committee or
by any other person.
(2) If it does so decide, it may authorise a committee
or another person to carry out the investigation
on its behalf and to report back on the findings
of the investigation.
(3) If the Board authorises a committee or another
person to carry out a preliminary investigation, it
must give the property agent concerned written
notice of the action it has taken and advise the
agent that the agent may make submissions to
the committee or other person.
Division 3 - Investigations of conduct complaints
103. Conduct complaints to be investigated efficiently
and expeditiously
(1) The Board is to carry out its investigation of a
conduct complaint in respect of a property agent
as efficiently and expeditiously as possible.
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(2) The fact that the Board is carrying out an
investigation under this Part in respect of the
conduct of a property agent does not prejudice
any investigation into the affairs of the agent
being carried out under any other Part of this Act
or under any other Act.
104. Powers of Board to investigate conduct complaints
(1) The Board may serve a written notice on a
property agent, whose conduct is the subject of a
conduct complaint to the Board, that requires the
agent to take all or any of the actions mentioned
in subsection (2).
(2) The actions referred to in subsection (1) are -
(a) to provide the Board with written
information of a type specified in the
notice, on or before a date also so
specified, that is verified by statutory
declaration; and
(b) to produce, at a time and place specified
in the notice, a document also so
specified or a copy of it; and
(c) to otherwise assist or cooperate with the
Board in the investigation of the
complaint in a manner specified in the
notice.
(3) If a document is produced to the Board in
accordance with this section, the Board may
inspect it, make copies of it or any part of it and
retain it for so long as may be necessary to
investigate the complaint.
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2005 Property Agents and Land Transactions No. s. 105
(4) A property agent has no right to refuse to
comply with a notice mentioned in
subsection (1) on the grounds that to comply
with the notice -
(a) would affect a lien the agent has over a
document; or
(b) would involve a breach of confidence.
(5) A property agent who, when required to take all
or any action mentioned in subsection (2), fails
to take all or any of those actions or who
provides written information or a document that
is false or misleading in a material particular is
guilty of professional misconduct.
105. Board may obtain search warrant to enter and
search premises
(1) The Board may apply to a magistrate for the
issue of a search warrant to enter premises where
it is suspected that there may be found evidence
relevant to a conduct complaint made to the
Board in respect of a property agent.
(2) A warrant issued under subsection (1) authorises
the person named in it, and any person whom
that person may reasonably need for assistance,
to enter the premises specified in the warrant and
to take the action mentioned in this section.
(3) A person who has entered premises pursuant to a
warrant mentioned in subsection (2) may search
the premises for documents and information that
relate to the conduct complained about.
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(4) If any such documents are found they may be
inspected and copies may be taken of them or of
any part of them.
(5) The documents may be taken from the premises
for the purpose of inspection and taking copies
of them.
(6) If it is thought that relevant information may be
found on a computer on the premises, access
may be gained to the computer and the
information stored on it may be downloaded and
retained.
(7) The computer may be taken from the premises
for the purpose referred to in subsection (6) so
long as adequate arrangements are made to
enable the business of the property agent to
continue.
106. Interim order for suspension of registration or
qualification
(1) If, during the investigation of a conduct
complaint in respect of a property agent, the
Board is satisfied that it is necessary in the
public interest to do so, it may by written notice
sent to the property agent -
(a) suspend the registration of the property
agent; or
(b) in the case of a property consultant,
disqualify the property consultant from
being employed as a property
consultant -
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2005 Property Agents and Land Transactions No. s. 107
in each case for a period to be specified in the
notice.
(2) If at any time the Board is satisfied that it is
necessary in the public interest to do so, it may,
by written notice sent to the property agent,
extend the suspension or disqualification period
for a further period to be specified in the notice.
(3) The Board must, by written notice sent to the
property agent, revoke the suspension or
disqualification as soon as it is satisfied that
doing so would not prejudice the public interest.
(4) A property agent may appeal to the Tribunal
against a suspension or disqualification imposed
on the agent in accordance with this section.
(5) The Tribunal may -
(a) confirm the suspension or
disqualification; or
(b) if it is satisfied that doing so would not
prejudice the public interest, revoke the
suspension or disqualification.
107. Referral of conduct complaints
(1) After the Board has considered a conduct
complaint and any report on a preliminary
investigation of it, the Board must decide
whether the complaint should be referred to the
Tribunal.
(2) The Board need not refer a complaint to the
Tribunal if it is satisfied that -
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(a) there is insufficient evidence to
substantiate the complaint; or
(b) the evidence appears to indicate that the
conduct complained about only amounts
to minor misconduct that can adequately
be dealt with by the Board.
(3) In any other case, the Board must refer a conduct
complaint to the Tribunal.
108. Procedure for minor misconduct
(1) If the Board, after considering a conduct
complaint in respect of a property agent, decides
that the evidence it has indicates that the conduct
only amounts to minor misconduct that can
adequately be dealt with by the Board, it may, by
written notice sent to the property agent, require
the agent to provide the Board with a written
explanation of the conduct before a date
specified in the notice, being a date not sooner
than 14 days after the notice is sent.
(2) If the conduct could possibly relate to the
physical or mental capacity of the property
agent, the Board may, by written notice sent to
the property agent, require the agent to undergo
a medical examination before a date specified in
the notice, being a date not sooner than 28 days
after the notice is sent.
(3) A notice under subsection (1) or (2) is to -
(a) specify the conduct complained about;
and
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2005 Property Agents and Land Transactions No. s. 108
(b) inform the property agent that, instead of
complying with the notice, the agent may
request the Board to refer the complaint
to the Tribunal for determination.
(4) If the property agent complies with the
requirement of a notice mentioned in
subsection (1) or (2), the Board is to determine if
the complaint has been substantiated.
(5) If it decides that there is insufficient evidence to
substantiate the complaint, it must dismiss the
complaint and advise the property agent and
complainant accordingly.
(6) However, if it is satisfied that the evidence
substantiates the complaint, it may do either or
both of the following:
(a) caution or reprimand the property agent;
(b) accept an undertaking from the agent to
take or refrain from taking action
specified by the Board.
(7) The Board must refer a complaint to the Tribunal
if -
(a) at any time the property agent requests
that it be referred to the Tribunal; or
(b) the property agent fails to comply with a
notice mentioned in subsection (1) or (2);
or
(c) at any time the Board decides that the
conduct amounts to more than minor
misconduct that can adequately be dealt
with by the Board.
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109. Appeals against determinations
(1) A person who has been sent a notice by the
Board, specifying any action the Board has taken
in accordance with this Part in respect of a
conduct complaint made to it, may, within 28
days after the notice is sent, appeal to the
Tribunal against the action taken.
(2) An appeal under this section suspends the action
taken by the Board.
(3) In this section -
"action taken by the Board" includes a
decision of the Board.
110. Procedure if offence suspected
(1) If, at any time while considering a conduct
complaint in respect of a property agent, the
Board or Tribunal believes that the evidence it
has indicates that a person has committed a
criminal offence, it must provide the evidence to
the Commissioner of Police.
(2) It must also -
(a) suspend its consideration of the
complaint; and
(b) take such other action under this Act as it
considers is in the public interest.
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2005 Property Agents and Land Transactions No. s. 111
Division 4 - Establishment of Tribunal
111. Application
(1) This Division applies if under this Act any action
is required to be taken by the Tribunal.
(2) Despite references in this Act to "the Tribunal",
there may at any one time be established in
accordance with this Division more than one
Tribunal differently constituted other than in
respect of its President.
(3) If under this Act any action is to be taken by the
Tribunal and -
(a) no Tribunal has been established under
this Division to take that action; or
(b) a Tribunal established under this
Division is for any reason unable to take
that action -
a Tribunal or further Tribunal is to be established
in accordance with this Division.
112. Establishment of Tribunal
A Tribunal established in accordance with this
Division is to consist of -
(a) the President of the Tribunal; and
(b) a person chosen by the President from
the members of the Panel referred to in
section 114(1)(a); and
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(c) a person chosen by the President from
the members of the Panel referred to in
section 114(1)(b).
113. President of Tribunal
(1) The President of the Tribunal is to be appointed
by the Governor and is to be a legal practitioner
of at least 5 years' standing who has legal
experience in areas of law relevant to the
position.
(2) The President of the Tribunal may be appointed
for a term not exceeding 3 years, which is to be
specified in the President's instrument of
appointment, and is eligible to be reappointed.
(3) The President of the Tribunal is to receive
remuneration and allowances determined by the
Minister, which are to be specified in the
President's instrument of appointment.
(4) The State Service Act 2000 does not apply in
relation to the President of the Tribunal in his or
her capacity as the President.
(5) The Governor may terminate the appointment of
a person as President of the Tribunal if the
person -
(a) becomes bankrupt, applies to take the
benefit of a law for the relief of bankrupt
or insolvent debtors, compounds with the
President's creditors or makes an
assignment of the President's
remuneration or estate for their benefit;
or
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2005 Property Agents and Land Transactions No. s. 114
(b) is convicted, in Tasmania or elsewhere,
of a crime or an offence punishable by
imprisonment for a term exceeding 12
months; or
(c) is convicted of an offence under this Act.
(6) The Governor may also terminate the
appointment of a person as President of the
Tribunal if the Governor is satisfied that the
person is unable to perform, or is not performing
adequately or competently, the duties of
President of the Tribunal.
114. Members of Panel
(1) The Panel referred to in section 112 is to consist
of 10 persons appointed by the Minister of
whom -
(a) five are persons who have had at least 5
years' experience as property agents and
are appointed from a list of persons
nominated by the body that the Minister
is satisfied represents the views of the
majority of property agents; and
(b) five are persons who the Minister
considers represent the interests of
consumers.
(2) A person may accept appointment as a member
of the Panel and any remuneration and
allowances payable to a member despite the fact
that the person is the holder of an office under an
Act that requires the holder of the office to
devote the whole of his or her time to the duties
of the office.
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(3) The State Service Act 2000 does not apply in
relation to a member of the Panel in his or her
capacity as a member of the Panel.
(4) A member of the Panel is to receive
remuneration and allowances, when sitting as a
member of the Tribunal, which are determined
by the Minister, and are to be specified in the
member's instrument of appointment.
(5) Although a person may be a member of the
Panel in conjunction with State Service
employment, a member of the Panel who is a
State Service officer or State Service employee
is not entitled to any remuneration or allowances
as a member of the Panel unless the Minister
administering the State Service Act 2000 decides
otherwise.
(6) A member of the Panel holds office at the
pleasure of the Minister.
(7) A member of the Panel may resign from office
by giving the Minister written notice of
resignation.
115. Meetings of Tribunal
(1) All 3 members are a quorum for a hearing of the
Tribunal.
(2) The Tribunal may appoint one or more persons
to sit with the members of the Tribunal to assist
them when hearing a complaint or appeal.
(3) The Tribunal is to convene at times and places
determined by the President of the Tribunal.
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2005 Property Agents and Land Transactions No. s. 116
(4) The Board is to appoint one of its employees to
be the registrar of the Tribunal.
116. Responsibilities of Tribunal and Board
(1) The President of the Tribunal is to submit a
report on the activities of the Tribunal to the
Board whenever requested to do so by the
Board.
(2) The report is to contain such information in
respect of the activities of the Tribunal as the
Board may specify.
(3) The Board is to pay the expenses of running the
Tribunal.
117. Powers of Tribunal
(1) The Tribunal may -
(a) summon a person to appear before it to
give evidence or to produce a document
specified in the summons; and
(b) require a person appearing before it to
produce a document; and
(c) require a person appearing before it to
give evidence on oath or affirmation; and
(d) require a person appearing before it to
answer questions truthfully.
(2) A person must comply with a requirement made
of the person in accordance with subsection (1).
Penalty: Fine not exceeding 500 penalty units.
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(3) The Tribunal may proceed with and determine a
complaint despite the absence of a person who
has been summoned to appear.
(4) The Tribunal may adjourn a hearing from time to
time and from place to place.
(5) A summons under subsection (1) is to be in
writing and must state the date, time and place at
which the person is to appear.
(6) The date mentioned in subsection (5) must not
be sooner than 14 days after the date on which
the summons is served.
118. Requirements of summons to property agent
(1) This section applies to a summons sent by the
Tribunal to a property agent if the Tribunal is to
hear a conduct complaint in respect of the agent.
(2) The summons must -
(a) set out particulars of the conduct to
which the hearing will relate; and
(b) inform the property agent that he or she
is entitled to be represented by a legal
practitioner or any other person in the
hearing; and
(c) state that the proceedings will not be
open to the public unless the Tribunal
considers it in the public interest to
provide otherwise; and
(d) specify the date, time and place at which
the property agent is required to appear.
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2005 Property Agents and Land Transactions No. s. 119
(3) The summons may contain such other
information as the Tribunal considers necessary
or appropriate.
(4) The date mentioned in subsection (2)(d) must
not be sooner than 14 days after the date on
which the summons is served.
119. Procedures at hearing by Tribunal
(1) When the Tribunal is hearing a conduct
complaint in respect of a property agent, it -
(a) must proceed with as little formality and
with as much expedition as a proper
consideration of the complaint permits;
and
(b) is not bound by the rules of evidence;
and
(c) may inform itself on any matter in any
way it considers appropriate; and
(d) must not admit the public except to such
extent as it considers it is appropriate to
do so in the public interest.
(2) However, nothing in this section is to be
interpreted as indicating that the Tribunal is not
bound by the rules of natural justice.
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Division 5 - Action following hearing
120. Determination by Tribunal
(1) If, after hearing a conduct complaint in respect
of a property agent, the Tribunal finds the
property agent to have been guilty of the conduct
that was the subject of the complaint, it may take
one or more of the following actions:
(a) suspend the registration of the property
agent for a period not exceeding 5 years
or, in the case of a property consultant or
assistant property manager, disqualify
that person from being employed as a
property consultant or assistant property
manager for a period not exceeding 5
years;
(b) revoke the registration of the person and
prohibit the Board from registering the
person without the approval of the
Tribunal or, in the case of a property
consultant or assistant property manager,
prohibit any property agent from
employing the consultant or assistant
property manager, without the approval
of the Tribunal;
(c) prohibit the property agent from
conducting all or any part of real estate
agency business, property management
business or general auctioneering
business, as the case may be, for a period
not exceeding 5 years;
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2005 Property Agents and Land Transactions No. s. 120
(d) impose on the property agent a fine not
exceeding an amount equivalent to 1 000
penalty units;
(e) prohibit the property agent from
conducting all or any part of real estate
agency business, property management
business or general auctioneering
business, as the case may be, except in
accordance with conditions, restrictions
or limitations specified by the Tribunal;
(f) require the property agent to take or
refrain from taking actions specified by
the Tribunal;
(g) caution or reprimand the property agent.
(2) If the Tribunal imposes a fine, it must specify a
period within which the fine is to be paid.
(3) The Tribunal may, in addition to any other
action it takes, require a property agent carrying
on real estate agency business, property
management business or general auctioneering
business, as the case may be, to do either or both
of the following:
(a) submit the business to periodic
supervision or inspection by a person
appointed by the Tribunal;
(b) undertake a course of training of a type
specified by the Tribunal.
(4) The Tribunal may accept an undertaking from a
property agent to take or refrain from taking
action specified by the Tribunal, either generally
or during a period specified by the Tribunal, as
an alternative to the Tribunal taking action
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s. 121 No. Property Agents and Land Transactions 2005
against the property agent in accordance with
subsection (2).
(5) Nothing under this section is to be taken as
depriving any person who has suffered damage
as a result of the action of a property agent of
any right the person may have to take any action
against the property agent in respect of that
damage.
121. Costs and expenses of hearings
(1) The Tribunal may make an order for costs in
respect of a hearing before it.
(2) The Tribunal may make an order for costs
against the Board where it considers it
appropriate to do so.
(3) An order for costs may be enforced as if the
costs were a debt due to the person to whom they
were awarded.
122. Notice of action
(1) This section applies when the Tribunal has
concluded a hearing.
(2) The Tribunal must as soon as practicable give
written notice of its decision and its reasons for
making that decision to the Board, the property
agent and the complainant.
(3) The notice must specify -
(a) any action it has taken under section 120;
and
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2005 Property Agents and Land Transactions No. s. 123
(b) any right of appeal that the property
agent may have; and
(c) details of any order for costs that the
Tribunal has made.
(4) Action taken by the Tribunal in accordance with
section 120(2) does not take effect until the
expiration of the period within which the
property agent may lodge an appeal against the
decision.
(5) If the property agent lodges an appeal against the
decision of the Tribunal, any action taken by the
Tribunal does not take effect until the appeal is
determined or withdrawn.
(6) Upon a decision of the Tribunal taking effect,
the Board may publish the decision in such
manner as it considers will best bring it to the
attention of those affected or likely to be affected
by the decision.
123. Indemnity
An action does not lie against the President of
the Tribunal or a member of a panel for an act or
omission by the President or member made in
good faith and in the exercise or purported
exercise of a function under this Division.
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s. 124 No. Property Agents and Land Transactions 2005
Division 6 - Suspension and disqualification
124. Power of Board to suspend registration or to
disqualify
(1) The Board may, by written notice sent to a
property agent -
(a) suspend the registration of the property
agent for a period not exceeding 12
months; or
(b) in the case of a property consultant or
assistant property manager, disqualify
that person from being employed by a
property agent as a property consultant or
assistant property manager for a period
not exceeding 12 months.
(2) The Board may take action under subsection (1)
if it is satisfied that the property agent has
failed -
(a) to pay a fine imposed on the property
agent by the Tribunal within the
specified time; or
(b) to comply with a requirement made of
the property agent by the Board or the
Tribunal in accordance with section 118
or 120; or
(c) to honour an undertaking given to the
Board or Tribunal.
(3) The Board may also take action under
subsection (1) if it is satisfied that it is necessary
to do so to inquire into a conduct complaint
made against the property agent or to inquire
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2005 Property Agents and Land Transactions No. s. 124
into a matter that could be the subject of such a
complaint.
(4) The Board may also take action under
subsection (1) if the property agent has been
found guilty of an offence that the Board
considers makes it inappropriate that the
property agent should continue to act as a
property agent.
(5) The Board may also take action under
subsection (1) if the right of the property agent
to act as a property agent under the law of
another jurisdiction has been suspended or
revoked for a reason relating to the property
agent's professional conduct or physical or
mental capacity.
(6) The suspension or disqualification may be a total
or a partial suspension or disqualification.
(7) The Board is not required to give a property
agent an opportunity to be heard before
suspending the agent's right to act as a property
agent or disqualifying the agent from being
employed as a property consultant or assistant
property manager, but may do so.
(8) The notice mentioned in subsection (1) must set
out -
(a) whether the suspension or
disqualification is total or partial and, if it
is partial, the activities of the property
agent to which the suspension or
disqualification applies; and
(b) the reasons for the suspension or
disqualification; and
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s. 125 No. Property Agents and Land Transactions 2005
(c) the period of the suspension or
disqualification; and
(d) the property agent's right of appeal; and
(e) if that period is not to start immediately,
when it is to start.
(9) A notice under subsection (1) has effect in
accordance with its terms.
(10) If the Board considers it to be in the public
interest to do so, it may publish details of a
suspension or disqualification under this section
in such manner as it considers will best bring the
suspension or disqualification to the attention of
those persons affected by it or likely to be
affected by it.
125. Revocation of suspension or disqualification
(1) If the Board or Tribunal has suspended the
registration of a property agent or disqualified a
person from being employed as a property
consultant or assistant property manager, it may
revoke the suspension or disqualification totally
or partially if it is satisfied that it is not against
the public interest to do so.
(2) If the Board considers it to be in the public
interest to do so, it may publish details of any
revocation of a suspension or disqualification
under this section in such manner as it considers
will best bring the revocation to the attention of
those persons affected by it or likely to be
affected by it.
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2005 Property Agents and Land Transactions No. s. 126
Division 7 - Appeals
126. Right to appeal decisions of Board
(1) An aggrieved person may appeal to the Tribunal
against any decision of the Board.
(2) In particular, a person may appeal against a
decision of the Board -
(a) to refuse to register the person; or
(b) to suspend the person's right to act as a
property agent.
(3) An appeal under this section is to be made
within 14 days after notice of the Board's
decision is given to the person or within such
further period as the Tribunal considers is
appropriate in the interest of justice.
127. Right to appeal decisions of Tribunal
(1) A person, including the Board, may appeal under
the Magistrates Court (Administrative Appeals
Division) Act 2001 against any decision of the
Tribunal.
(2) An appeal under this section is to be made
within 21 days after notice of the Tribunal's
decision is given to the person or Board, or
within such further period as a magistrate
considers is appropriate in the interest of justice.
(3) Pending the hearing and determination of the
appeal, the court may, on the application of the
appellant, grant such temporary relief as it
considers appropriate.
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s. 128 No. Property Agents and Land Transactions 2005
PART 7 - CONTROL OF PROPERTY AGENTS
CARRYING ON BUSINESSES
Division 1 - Protection of trust money, and appointment of
receivers and managers
128. Protection of trust money
(1) This section applies where the Board considers it
necessary to protect trust money in a trust
account with an authorised deposit-taking
institution held by -
(a) a real estate agent named in Part 1(1) of
the Register; or
(b) a property manager named in Part 2(1) of
the Register; or
(c) a general auctioneer named in Part 3 of
the Register.
(2) The Board may, by notice served on the
authorised deposit-taking institution that gives
details of the trust account and is signed by the
Chair of the Board or by an officer of the Board
authorised to do so, instruct the authorised
deposit-taking institution not to permit any
withdrawal to be made from the account without
the Board's written consent until the Board
instructs it otherwise.
(3) An authorised deposit-taking institution must
comply with an instruction contained in a notice
served on it in accordance with subsection (2).
Penalty: Fine not exceeding 50 penalty units.
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2005 Property Agents and Land Transactions No. s. 129
129. Appointment of receiver or manager
(1) This section applies where the Board is of the
opinion that a defalcation has been or may have
been committed in relation to a trust account of -
(a) a real estate agent named in Part 1(1) of
the Register; or
(b) a property manager named in Part 2(1) of
the Register; or
(c) a general auctioneer named in Part 3 of
the Register.
(2) This section also applies where the Board is of
the opinion that a person is unable to obtain trust
money held by a property agent mentioned in
subsection (1) due to -
(a) the mental or physical infirmity or death
or disappearance of the property agent;
or
(b) the suspension or revocation of the right
of the property agent to carry on real
estate agency business, property
management business or general
auctioneering business, as the case may
be; or
(c) the suspension or termination of the real
estate agency business, property
management business or general
auctioneering business of the property
agent for any other reason.
(3) Where this section applies, the Board may apply
to a magistrate for the appointment of a person
to be -
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s. 129 No. Property Agents and Land Transactions 2005
(a) a receiver of the trust money of the
property agent; or
(b) the manager of the business of the
property agent.
(4) Unless a magistrate otherwise determines, a
copy of an application under subsection (3) is to
be served on the property agent at least 24 hours
before the hearing of the application.
(5) A magistrate, on considering an application
under subsection (3), may appoint a receiver of
the trust money of the property agent.
(6) The magistrate may also appoint a person
qualified to do so -
(a) to manage the business of the property
agent for a period to be specified by the
magistrate; or
(b) to carry on that business with a view to
winding it up in the interests of the
clients of the property agent.
(7) A magistrate may appoint the same person to be
both a receiver under subsection (5) and a
manager under subsection (6).
(8) The Board is to serve a copy of an order of the
magistrate appointing a receiver or manager on
the property agent and on any other person
specified by the magistrate.
(9) The copy is to be served as soon as practicable.
(10) A magistrate may for sufficient reason dispense
with service in accordance with subsection (8)
generally or in respect of any particular person.
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2005 Property Agents and Land Transactions No. s. 130
130. Duty of receiver
(1) A receiver appointed in respect of the trust
money of a property agent is to -
(a) take control of any trust money in the
possession or under the control of the
property agent; and
(b) gather in any other trust money.
(2) The receiver is then to distribute the money to
those entitled to it, as and when they become
entitled to it, and in the meantime act as trustee
of it in the same capacity as that in which the
property agent was acting, and subject to the
same obligations.
131. Receiver may require delivery of trust money and
supply of information
(1) A receiver of the trust money of a property agent
may require the property agent or any other
person who may have possession or control of
the trust money -
(a) to deliver up to the receiver the trust
money and any accounts and records in
respect of the money that is in his or her
possession or under his or her control;
and
(b) to give to the receiver any other
information in respect of the trust money
that is in his or her possession or under
his or her control.
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s. 132 No. Property Agents and Land Transactions 2005
(2) A receiver who makes a requirement under
subsection (1) must produce a copy of the order
of the magistrate appointing the receiver.
(3) A person must comply with a requirement of a
receiver made in accordance with subsection (1).
Penalty: Fine not exceeding 500 penalty units.
132. Dealings with trust account
(1) A receiver appointed in respect of the trust
money of a property agent may serve on an
authorised deposit-taking institution where the
property agent maintains a trust account a notice,
with a copy of the order of the magistrate
appointing the receiver attached to it, that
instructs the institution not to permit any
withdrawal to be made from the trust account
except by the receiver.
(2) An authorised deposit-taking institution must
comply with an instruction contained in a notice
served on it in accordance with subsection (1).
Penalty: Fine not exceeding 500 penalty units.
133. Power to take proceedings to recover trust money
A receiver appointed in respect of the trust
money of a property agent may take proceedings
in his or her own name to recover the whole or
any part of the trust money that has been stolen,
embezzled, misappropriated or otherwise dealt
with in breach of trust.
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2005 Property Agents and Land Transactions No. s. 134
134. Magistrate may give directions, &c., to receiver
A magistrate may, on the application of a
receiver appointed in respect of the trust money
of a property agent, authorise the receiver to do
such things as the magistrate thinks necessary to
carry out the objects of this Division or the
administration of the trust money, and may give
directions accordingly.
135. Powers of manager
(1) A manager appointed to manage the business of
a property agent may do all acts and things in
relation to that business that the property agent
might lawfully have done.
(2) The manager may, in particular, in his or her
own name or in the name of the property agent -
(a) charge commission and other amounts
for work undertaken for clients of the
property agent in the course of the
business of the property agent; and
(b) pay from the assets of the business any
outgoings payable in connection with the
business; and
(c) administer the trust account of the
property agent and pay money from that
account as and when people become
entitled to it.
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s. 136 No. Property Agents and Land Transactions 2005
136. Obligations of manager
A manager appointed to manage the business of
a property agent must, in the course of managing
the business, perform all functions that the
property agent would have been required to
perform or carry out by this Act or any other
Act, or by any agreement.
137. Magistrate may give directions, &c., to manager
A magistrate may, on the application of a
manager appointed to manage the trust money of
a property agent, authorise the manager to do
such things as the magistrate thinks necessary or
convenient to carry out the objects of this
Division or to manage the business of the
property agent, and may give directions
accordingly.
138. Remuneration of receivers and managers
(1) A receiver or manager appointed under this
Division is to be paid by way of remuneration
and in repayment of any cost incurred by him or
her -
(a) such amount as is agreed with the Board;
or
(b) failing agreement, such amount as is
determined by a magistrate on
application by either the Board or the
receiver or manager.
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2005 Property Agents and Land Transactions No. s. 139
(2) The amount agreed or determined in accordance
with subsection (1) is to be paid by the Trust
from the Guarantee Fund.
(3) That amount may be recovered by the Trust from
the property agent as a debt due to the Trust.
139. Receiver and manager to report to Board
(1) A receiver or manager appointed under this
Division is to report to the Board whenever
required to do so by the Board.
(2) A report must contain such information as the
Board requires.
140. Termination, &c., of appointment of receiver or
manager
(1) This section applies where a receiver or manager
has been appointed under this Division in respect
of the trust money or business of a property
agent.
(2) The Board or the property agent may at any time
apply to a magistrate for an order that -
(a) the appointment of the receiver or
manager be terminated; or
(b) a different person, specified in the
application, be appointed to be the
receiver or manager.
(3) The magistrate may make such an order.
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Division 2 - Professional indemnity insurance
141. Certain property agents to have professional
indemnity insurance
(1) This section applies to -
(a) a real estate agent named in Part 1(1) of
the Register; and
(b) a property manager named in Part 2(1) of
the Register; and
(c) a general auctioneer named in Part 3 of
the Register.
(2) A property agent to whom this section applies
must maintain insurance cover that indemnifies
the property agent against any liability that the
property agent may incur in respect of any loss
or damage suffered by other people occasioned
by any act, default, omission, neglect or criminal
action by the property agent in the course of his
or her business as a property agent.
Penalty: Fine not exceeding 500 penalty units.
(3) The insurance must cover -
(a) claims by both clients and people who
are not clients of the property agent; and
(b) claims arising from any act, default,
omission, neglect or defalcation by the
property agent and by any person
employed or engaged by, or acting on
behalf of, the property agent.
(4) The insurance cover is to be provided by an
insurance company approved by the Australian
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2005 Property Agents and Land Transactions No. s. 142
Prudential Regulatory Authority for the
provision of insurance in respect of the risks
mentioned in this section.
(5) A property agent to whom this section applies
must, whenever required to do so by the Board,
provide to the Board evidence in a form
specified by the Board to show that the property
agent has the insurance cover required by this
section.
Penalty: Fine not exceeding 50 penalty units.
(6) If the Board advises a property agent that the
insurance cover maintained by the property
agent is in its opinion insufficient to cover the
liabilities mentioned in this section, the property
agent must increase the cover to such amount as
the Board may specify.
Penalty: Fine not exceeding 500 penalty units.
(7) The Board may specify a minimum level of
cover that a property agent to whom this section
applies must maintain to comply with this
section.
142. Suspension of registration when professional
indemnity insurance not in force
(1) The registration of a property agent is to be
taken to have been suspended during any period
when the property agent does not have the
insurance cover required by this Division.
(2) A property agent who is required to have the
insurance cover required by this Division must,
on each renewal of any policy of that insurance,
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s. 142 No. Property Agents and Land Transactions 2005
provide the Board with evidence, in a form
specified by the Board, of that insurance.
Penalty: Fine not exceeding 50 penalty units.
(3) The Board is to maintain a record of the
information supplied to it in accordance with
subsection (2) and take disciplinary action
against any property agent that its records show
does not have the insurance cover required by
this Division.
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2005 Property Agents and Land Transactions No. s. 143
PART 8 - TRUST MONEY, TRUST ACCOUNTS AND
RECORDS
143. Trust money
(1) Money received by or on behalf of -
(a) a real estate agent named in Part 1(1) of
the Register; or
(b) a property manager named in Part 2(1) of
the Register; or
(c) a general auctioneer named in Part 3 of
the Register -
on behalf of a party to negotiations in which the
property agent is involved, or money received by
such a property agent as a stakeholder, is trust
money while it is in the possession of, or under
the control of, the property agent.
(2) Trust money is to be held by the property agent
upon trust for the person entitled to it.
144. Trust money to be paid into trust account
(1) When -
(a) a real estate agent named in Part 1(1) of
the Register; or
(b) a property manager named in Part 2(1) of
the Register; or
(c) a general auctioneer named in Part 3 of
the Register; or
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s. 145 No. Property Agents and Land Transactions 2005
(d) a person employed or engaged by any
such property agent -
receives trust money, the property agent or
person must, without delay, pay the money into a
trust account maintained by the property agent.
Penalty: Fine not exceeding 500 penalty units.
(2) It is a defence for a property agent or person
charged with an offence of failing to comply
with subsection (1) to show -
(a) that all the parties to the transaction
agreed that the property agent or person
need not comply with the subsection; and
(b) that the money was paid into a trust
account in the joint names of those
parties.
(3) A person with a claim on money deposited in a
trust account in accordance with subsection (1)
has no right to any interest earned on the money.
145. "Trust account" defined
In this Act -
"trust account" means an account with the
words "trust account" in its title that is
kept with an approved institution in the
name of a person who is or has been -
(a) a real estate agent named in Part
1(1) of the Register; or
(b) a property manager named in Part
2(1) of the Register; or
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2005 Property Agents and Land Transactions No. s. 146
(c) a general auctioneer named in
Part 3 of the Register.
146. Accounts regulations
(1) Regulations made under this Act may make
provision as to -
(a) the opening and keeping of trust
accounts; and
(b) the keeping of accounts and records
relating to trust money; and
(c) the production of those accounts and
records for inspection; and
(d) the auditing of those accounts; and
(e) the period of retention and subsequent
disposal of those accounts.
(2) As to the opening and keeping of trust accounts,
the regulations may, in particular -
(a) require a property agent to furnish to the
Board details of the name of any
authorised deposit-taking institution at
which, and the name in which, the
property agent has opened a trust
account; and
(b) specify the circumstances in which
money other than trust money may be
paid into a trust account; and
(c) specify the occasions on which, and the
people to whom, money held in a trust
account may be paid out; and
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(d) require a property agent to provide
regular reports, at intervals specified by
the regulations, containing prescribed
particulars of the property agent's trust
account.
(3) As to the keeping of accounts and records
relating to trust money, the regulations may, in
particular -
(a) specify where those accounts and records
must be kept; and
(b) prescribe the particulars to be included in
those accounts and records.
(4) As to the production of accounts and records of
trust money for inspection, the regulations may,
in particular, provide for a person authorised for
the purpose by the Board -
(a) to enter, at reasonable times, any place
where those accounts and records are
kept, and to inspect and take copies of
them; and
(b) to require a property agent to provide to
the person details of all transactions
entered into by the property agent in
which the property agent received or paid
out trust money during such period as
that person may specify.
(5) As to the auditing of accounts relating to trust
money, the regulations may, in particular -
(a) require such accounts to be drawn in
respect of specified accounting periods,
and to be audited by an auditor within a
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2005 Property Agents and Land Transactions No. s. 147
specified time after the end of each such
period; and
(b) require the auditor to report to the Board
whether, in the auditor's opinion, the
requirements of this Act in respect of
trust money and the keeping of trust
accounts have been complied with, or
have been substantially complied with;
and
(c) prescribe the matters to which such a
report is to relate and the circumstances
in which a report of substantial
compliance may be given.
147. Records of transactions
(1) The Board may approve the records to be kept of
transactions undertaken by -
(a) real estate agents named in Part 1(1) of
the Register; and
(b) property managers named in Part 2(1) of
the Register; and
(c) general auctioneers named in Part 3 of
the Register.
(2) In approving the records referred to in
subsection (1), the Board may, in particular -
(a) approve the manner of keeping records
of transactions; and
(b) approve the matters to be included in the
records; and
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(c) approve the information to be given to
property agents, the persons required to
give that information, and the manner in
which and time within which it is to be
given; and
(d) approve the persons to whom those
records are to be produced and the
manner of their production; and
(e) provide for a person authorised for the
purpose by the Board to enter, at
reasonable times, any place where those
records are kept, and to inspect and take
copies of them; and
(f) approve the period during which the
records are to be retained; and
(g) provide for the disposal of those records
when a person ceases to carry on
business as a property agent.
148. Inspection of records of authorised deposit-taking
institutions, &c.
(1) The Board may serve a written notice, on any
authorised deposit-taking institution where
accounts may be kept, requiring the institution
before a date specified in the notice -
(a) to notify the Board whether an account
that contains or contained trust money is,
or has been, kept at the institution by a
property agent or former property agent;
and
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2005 Property Agents and Land Transactions No. s. 148
(b) to send or deliver to the Board a written
statement of any particulars relating to
any account that contains or contained
trust money that is, or has been, kept at
the institution; and
(c) to produce, for inspection by a person
authorised for the purpose by the Board,
a document or record in the possession
of, or under the control of, the institution
relating to any account that contains or
contained trust money that is, or has been
kept, at the institution; and
(d) to allow a person authorised for the
purpose by the Board to take a copy of
any document or record in the possession
of, or under the control of, the institution
relating to any account that contains or
contained trust money that is, or has
been, kept at the institution, or, if so
required by that person, to provide that
person with a copy of any such document
or record.
(2) An authorised deposit-taking institution must
comply with a notice served on it under
subsection (1).
Penalty: Fine not exceeding 500 penalty units.
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PART 9 - PROPERTY AGENTS TRUST AND
GUARANTEE FUND
Division 1 - Property Agents Trust
149. Property Agents Trust
(1) The body corporate that was immediately before
the commencement of this section in existence
by virtue of section 76(1) of the repealed Act
under the name Auctioneers and Real Estate
Agents Trust continues in existence by force of
this subsection as a body corporate, under and
subject to the provisions of this Act, under the
name the Property Agents Trust.
(2) The Trust may have a seal and may sue and be
sued in its corporate name.
(3) If the Trust has a seal -
(a) it is to be kept and used as authorised by
the Board; and
(b) all courts or persons acting judicially
must take judicial notice of the imprint of
the seal on a document and presume that
the document was duly sealed by the
Trust.
150. Constitution of Trust
(1) The Trust consists of -
(a) the Chair of the Board, who is also Chair
of the Trust; and
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2005 Property Agents and Land Transactions No. s. 150
(b) two other members appointed by the
Governor, one of whom is to be a
representative of property agents, and the
other being a person with wide
knowledge of financial matters.
(2) A person appointed to be a member of the Trust
holds office for 3 years.
(3) If the office of an appointed member of the Trust
becomes vacant before the end of the member's
term of office, the Governor may appoint a
person to hold office for the unexpired part of
that term.
(4) An appointed member of the Trust is eligible for
reappointment.
(5) The performance of a function of the Trust is not
affected -
(a) by a vacancy or vacancies in the
membership of the Trust; or
(b) by a defect or irregularity in the
appointment of a member of the Trust.
(6) A person may accept appointment as a member
of the Trust and any remuneration payable to a
member despite the fact that the person is the
holder of an office under an Act that requires the
holder of the office to devote the whole of his or
her time to the duties of the office.
(7) The State Service Act 2000 does not apply in
relation to a member of the Trust in his or her
capacity as a member of the Trust.
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151. Fees and allowances of Trust members
(1) The Trust is to pay its members such fees,
allowances and expenses, and at such rates, as
the Governor determines.
(2) Although a person may be a member of the Trust
in conjunction with State Service employment, a
member who is a State Service officer or State
Service employee is not entitled to any
remuneration or allowances as a member of the
Trust unless the Minister administering the State
Service Act 2000 decides otherwise.
152. Removal of Trust member from office
The Governor may terminate the appointment of
an appointed member of the Trust for inability,
inefficiency, misbehaviour or physical or mental
incapacity.
153. Vacation of office of Trust members
The Governor must terminate the appointment of
an appointed member of the Trust if the
member -
(a) becomes bankrupt, applies to take the
benefit of any law for the relief of
bankrupt or insolvent debtors,
compounds with his or her creditors, or
makes an assignment of his or her
remuneration for their benefit; or
(b) is absent, except on leave of absence
granted by the Trust, from 3 consecutive
meetings of the Trust; or
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2005 Property Agents and Land Transactions No. s. 154
(c) is convicted of an offence, in Tasmania
or elsewhere, of such a nature that, in the
opinion of the Governor, it is
inappropriate for the member to remain a
member of the Trust; or
(d) fails, without reasonable excuse, to
comply with an obligation to disclose an
interest.
154. Resignation by Trust members
An appointed member of the Trust may resign
from office by giving the Governor written
notice of resignation.
155. Meetings of Trust
(1) The Chair of the Trust -
(a) must convene such meetings of the Trust
as the Chair considers necessary for the
efficient performance of the functions of
the Trust; and
(b) must convene a meeting of the Trust on
receipt of a written request to do so
signed by at least one other member of
the Trust.
(2) At a meeting of the Trust -
(a) the Chair of the Trust, if present,
presides, but if the Chair is absent the
members present and voting are to elect
one of their number to preside, and that
person is to exercise the powers and
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perform the duties of the Chair for that
meeting; and
(b) two members constitute a quorum; and
(c) the member presiding only has a
deliberative vote so that, if there is an
equality of votes on a matter, the matter
stands adjourned to the next meeting of
the Trust at which all 3 members of the
Trust are present, unless a member of the
Trust is excluded by virtue of
section 156, when the member presiding
has both a deliberative vote and a casting
vote.
(3) The Trust must keep a record of its proceedings.
(4) Except as provided by this Act, the Trust may
determine its own procedure.
156. Trust member not to act in certain circumstances
(1) A member of the Trust with a direct or indirect
pecuniary interest in a matter being, or about to
be, considered by the Trust must, as soon as
practicable after the relevant facts are known by
the member, disclose the nature of the interest at
a meeting of the Trust.
(2) The disclosure must be recorded in the minutes
of the meeting of the Trust.
(3) A member of the Trust who has made a
disclosure in respect of a matter is not to -
(a) be present during any deliberation of the
matter by the Trust; or
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2005 Property Agents and Land Transactions No. s. 157
(b) take part in any decision of the Trust
with respect to the matter.
(4) It is not necessary to disclose an interest in a
matter that applies or will apply in respect of
property agents or a particular group of property
agents generally.
157. Functions of Trust
The functions of the Trust are -
(a) to establish and maintain, from money it
receives under schemes of arrangement,
a fund to meet claims for loss suffered by
people as a result of certain acts and
omissions of real estate agents named in
Part 1(1) of the Register, property
managers named in Part 2(1) of the
Register or general auctioneers named in
Part 3 of the Register, their directors and
people employed or engaged by them, or
acting on their behalf; and
(b) to administer the fund so established; and
(c) to pay any compensation determined in
accordance with Division 5 of this Part to
be payable from the fund.
158. General powers of Trust
Subject to this Act, the Trust has power to do all
things necessary or convenient to be done for or
in connection with the performance of its
functions.
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159. Administrative accounts of Trust
(1) Money received by the Trust in accordance with
section 163(2) is to be paid into its general fund.
(2) Money in the general fund of the Trust is to be
used to pay -
(a) the fees, allowances and expenses of
members of the Trust; and
(b) the remuneration of people engaged by
the Trust; and
(c) other administrative expenses of the
Trust, including auditors' fees.
(3) The Trust may invest money in its general fund
in any manner in which a trustee is authorised by
law to invest trust funds.
(4) A payment is not to be made from the general
fund of the Trust except in accordance with an
order of the Trust.
(5) An order may relate to a single payment, several
payments or a series of payments.
160. Protection of Trust members
An action does not lie against a member of the
Trust, or an officer of the Trust acting as such,
for anything done in good faith.
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2005 Property Agents and Land Transactions No. s. 161
Division 2 - Schemes of arrangement
161. Board may enter into schemes of arrangement
(1) The Board may enter into a scheme of
arrangement with an authorised deposit-taking
institution for the keeping of trust accounts.
(2) An authorised deposit-taking institution that is
party to a scheme of arrangement is taken to be
an approved institution for the purposes of this
Act.
(3) A scheme of arrangement may provide for all or
any of the following:
(a) the payment to the Trust of interest on
money held in trust accounts;
(b) the disclosure to the Board of trust
account balances and other information
about trust accounts;
(c) the auditing of trust accounts;
(d) any other matter related to the keeping of
trust accounts that the Board considers to
be necessary or expedient for the
purposes of this Part.
(4) A scheme of arrangement -
(a) is to be in writing; and
(b) is not to contain terms that are
inconsistent with this Act; and
(c) is not to contain terms that discriminate
against another approved institution; and
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s. 162 No. Property Agents and Land Transactions 2005
(d) may be varied or terminated in
accordance with its terms or as may be
prescribed.
(5) The Board must -
(a) from time to time, notify real estate
agents named in Part 1(1) of the Register,
property managers named in Part 2(1) of
the Register and general auctioneers
named in Part 3 of the Register of the
authorised deposit-taking institutions that
are approved institutions; and
(b) notify such property agents as soon as
practicable if an authorised deposit-
taking institution ceases to be an
approved institution.
162. Trust accounts to be kept only with approved
institutions
A real estate agent named in Part 1(1) of the
Register, a property manager named in Part 2(1)
of the Register and a general auctioneer named
in Part 3 of the Register must not maintain a trust
account with an authorised deposit-taking
institution that is not an approved institution.
Penalty: Fine not exceeding 1 000 penalty
units.
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2005 Property Agents and Land Transactions No. s. 163
Division 3 - Property Agents Guarantee Fund
163. Property Agents Guarantee Fund
(1) The Trust must continue to maintain the fund
that was, immediately before the commencement
of this section, in existence by virtue of section
86(1) of the repealed Act under the name
Auctioneers and Real Estate Agents Guarantee
Fund, which fund continues in existence by force
of this subsection, subject to the provisions of
this Act, under the name Property Agents
Guarantee Fund.
(2) The Trust is to pay into the Guarantee Fund the
balance of all money received by it under a
scheme of arrangement, under the Conveyancing
Act 2004, or from any other source after it has
paid to itself any amount required -
(a) to pay the fees, allowances and expenses
of members of the Trust; and
(b) to pay the remuneration of persons
engaged by the Trust; and
(c) to pay the administrative expenses of the
Trust, including auditors' fees.
164. Level of Guarantee Fund
Subject to the payment of any demands on the
Guarantee Fund in accordance with this Act or
the Conveyancing Act 2004, the Trust must build
up and maintain the Fund at such amount,
exceeding $3,000,000, as the Minister and the
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Trust may agree, or failing agreement, as the
Minister determines.
165. Administration of Guarantee Fund
(1) The Trust is to keep money in the Guarantee
Fund invested in any manner in which a trustee
is authorised by law to invest funds.
(2) The Trust may also keep the money in any
manner approved by the Treasurer.
(3) Income of the Fund is to be added to the Fund.
166. Use of surplus money in Guarantee Fund
(1) Any surplus money in the Guarantee Fund above
the amount agreed or determined under
section 164 is to be distributed, as agreed by the
Board and the Minister -
(a) firstly, in payment of costs incurred in
administering the Residential Tenancy
Act 1997; and
(b) secondly, to the Board to be used by it in
accordance with subsection (2); and
(c) thirdly, in the payment of costs incurred
in administering the Conveyancing Act
2004.
(2) The Board may use the money mentioned in
subsection (1)(b) for all or any of the following
purposes:
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2005 Property Agents and Land Transactions No. s. 167
(a) to pay the cost of research relating to the
property agents industry;
(b) to pay the cost of educating property
agents and people engaged or to be
engaged in the property agents industry;
(c) for any other purpose approved by the
Minister.
Division 4 - Audit and report
167. Accounts and report
(1) Regulations made under this Act may make
provision as to -
(a) the keeping of accounts and records by
the Trust relating to money handled by
the Trust; and
(b) the auditing of those accounts.
(2) As to the auditing of accounts, the regulations
may, in particular -
(a) require such accounts to be drawn in
respect of specified accounting periods,
and to be audited by an auditor within a
specified time after the end of each such
period; and
(b) require the auditor to report to the Board
and the Minister whether in the auditor's
opinion the requirements of this Act in
respect of the handling of money by the
Trust have been complied with or have
been substantially complied with; and
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s. 168 No. Property Agents and Land Transactions 2005
(c) prescribe the matters to which such a
report is to relate, and the circumstances
in which a report of substantial
compliance may be given.
Division 5 - Claims against Guarantee Fund
168. Right to claim compensation
(1) A person may apply to the Board for
compensation for pecuniary loss or loss of
property suffered by the person arising from the
criminal or fraudulent conduct of -
(a) a real estate agent named in Part 1(1) of
the Register; or
(b) a property manager named in Part 2(1) of
the Register; or
(c) a general auctioneer named in Part 3 of
the Register; or
(d) a person mentioned in subsection (3)
acting in the course of the business of
any such property agent.
(2) A person may, on giving notice to the Director
of Consumer Affairs and Fair Trading, apply to
the Council for compensation for -
(a) pecuniary loss; or
(b) loss of property -
suffered by that person arising from the criminal
or fraudulent conduct of a conveyancer in the
course of the conveyancer's business.
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2005 Property Agents and Land Transactions No. s. 169
(3) A person referred to in subsection (1)(d) is -
(a) a person employed or engaged by a
property agent mentioned in
subsection (1); or
(b) a director or person holding a similar
position in such a property agent that is a
company.
(4) The loss in respect of which compensation may
be claimed is the loss, in money terms, suffered
by the applicant less any amount, or the value of
any property, that the applicant has recovered
from any person in respect of the loss.
169. Board may invite claims
(1) The Board may, by notice published in such
manner as the Board considers will best bring it
to the attention of those affected by it, invite any
person who may be entitled to compensation in
respect of loss suffered as a result of the conduct
of a person referred to in section 168, and
specified in the notice, to make an application to
the Board for compensation within the period
specified in the notice.
(2) The period specified in the notice is to be no
sooner than 3 months from the date of the first
publication of the notice.
(3) An action for damages does not lie against the
Board or any other person in respect of the
publication in good faith of a notice under this
section.
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170. Manner and time for making application for
compensation
(1) The Board is not to act on an application made to
it under section 168 unless the application is in
writing and is made within the period of 6
months after the applicant became aware of the
criminal or fraudulent conduct.
(2) However, the Board must act on an application
made under section 168 if a notice has been
published in accordance with section 169, and
the application is made before the end of the
period specified in the notice.
(3) The Board may extend the period mentioned in
subsection (1) or (2) if it is satisfied that the
circumstances of the case justify doing so.
171. Applicant for compensation to provide details of
claim
An application to the Board for compensation
under section 168 is to be accompanied by -
(a) full particulars, in writing, of the claim;
and
(b) a statutory declaration supporting the
claim.
172. Board may seek further particulars
(1) The Board may require a person who has applied
for compensation to supply to the Board
information in the possession of, or under the
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2005 Property Agents and Land Transactions No. s. 173
control of, the applicant with regard to any
matter relating to the application.
(2) The Board may also require the person to deliver
to the Board any document in his or her
possession or under his or her control that tends
to establish the facts of the conduct or the
amount of the loss to which the application
relates.
(3) The Board may retain a document delivered to it
under this section for so long as it considers
necessary for the purposes of this Division.
(4) However, the Board must, if required to do so by
the person who produced the document, supply
the person with a copy of the document certified
to be a true copy by the Chair of the Board or by
an officer of the Board authorised for the
purpose.
(5) A copy of the document certified in accordance
with subsection (4) is to be received in all courts
and by any person or body authorised to receive
evidence as if it were an original document.
(6) If the Board has made a requirement under this
section, it need take no further action in relation
to the application until the requirement is met.
173. Board to consider application
(1) The Board must, after considering an application
for compensation made under section 168 -
(a) determine whether or not there has been
a loss for which compensation may be
paid under this Division; and
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s. 173 No. Property Agents and Land Transactions 2005
(b) if it determines that there has been such a
loss, recommend to the Trust the amount
of compensation payable.
(2) Subsection (1)(a) does not require the Board to
be satisfied -
(a) that any person has been convicted of an
offence arising out of the conduct giving
rise to the application; or
(b) that there is evidence upon which a
person might be convicted of such an
offence.
(3) If, after considering an application, the Board
determines that no compensation may be paid
under this Division, it must serve a written
notice of the Board's determination on the
applicant.
(4) A notice served under subsection (3) must -
(a) give reasons for the Board's
determination; and
(b) include details of the facts that in the
Board's opinion justify the
determination.
(5) The notice must also inform the applicant -
(a) of the applicant's right to apply for a
review of the Board's determination; and
(b) of the period in which an application for
a review may be made and how, and to
whom, notice of the review may be
given.
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2005 Property Agents and Land Transactions No. s. 174
174. Recovery of claims under professional indemnity
insurance
(1) Subject to subsection (2), the Board may, before
making a determination under section
section 173(1), require the applicant to institute
proceedings to recover any sum under
professional indemnity insurance.
(2) If the Board requires the applicant to institute
proceedings, the Trust -
(a) may take such action as it considers
appropriate to aid the applicant; and
(b) must pay out of the Guarantee Fund the
costs and other expenses necessarily
incurred by the applicant in instituting
the proceedings and not otherwise
recoverable.
175. Trust to determine compensation payable
The Trust must consider a recommendation
made to it by the Board under section 173(1)(b)
and must determine the amount of the
compensation to be paid to the claimant.
176. Notice of determination
(1) As soon as practicable after the Trust has made a
determination under section 175, it must serve a
written notice on the applicant stating the
amount of compensation that the Trust has
determined may be paid to the applicant under
this Division.
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(2) The notice must -
(a) give reasons for the Trust's
determination; and
(b) include details of the facts which in the
Trust's opinion justify that
determination.
(3) The notice must also inform the applicant -
(a) of the applicant's right to apply for a
review of the Trust's determination on
the amount of the compensation; and
(b) of the period within which an application
for a review may be made and how, and
to whom, notice of the review may be
given.
177. Reviews
(1) This section applies where an applicant for
compensation under this Division is aggrieved
by -
(a) a determination of the Board that no
compensation is payable under this
Division; or
(b) a determination of the Trust on the
amount of compensation payable under
this Division.
(2) The applicant may apply to the Magistrates
Court (Administrative Appeals Division) for a
review of that determination.
(3) In the proceeding -
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2005 Property Agents and Land Transactions No. s. 178
(a) the Board is a party if the review is in
respect of a determination under
section 173(3); and
(b) the Trust is a party if the review is in
respect of a determination under
section 175.
178. Payment of compensation
(1) If it is determined or directed that compensation
is payable under this Division, the Trust is to pay
from the Guarantee Fund to the applicant an
amount equal to the amount so determined or
directed.
(2) If the aggregate of the amounts that the Trust
would, but for this subsection, be required by
subsection (1) to pay to applicants for
compensation in respect of conduct by the same
person exceeds the amount available in the
Guarantee Fund, the Trust must divide the
amount available among those applicants in
proportion to the amounts that would otherwise
be payable to them.
(3) Any amount payable under this section is to be
paid -
(a) within 28 days after notice of the Trust's
determination is served on the applicant
in accordance with section 176(1); or
(b) if the applicant applies for a review under
section 177(2), on the determination of
the review.
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179. Subrogation
If the Trust has paid compensation to a person
under this Division, the Trust is, to the extent of
the payment, subrogated to the rights of the
person against any other person in relation to the
occurrence that gave rise to the claim for
compensation.
180. Certain property agents may not claim
(1) This section applies to -
(a) a real estate agent named in Part 1(1) of
the Register; and
(b) a property manager named in Part 2(1) of
the Register; and
(c) a general auctioneer named in Part 3 of
the Register.
(2) A property agent to whom this section applies is
not entitled to claim compensation under this
Division arising from the criminal or fraudulent
conduct of -
(a) a person employed or engaged by the
property agent; or
(b) if the property agent is a company, a
director or a person in a similar position,
the property agent; or
(c) if the property agent is a partnership, a
partner in the partnership.
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2005 Property Agents and Land Transactions No. s. 181
PART 10 - LAND TRANSACTIONS
Division 1 - Preliminary
181. Interpretation of Part 10
In this Part, unless the contrary intention
appears -
"authorised officer" means an authorized
officer within the meaning of the
Consumer Affairs Act 1988;
"business day" means any day except a
Saturday or Sunday or a day that is a
public or bank holiday in the locality of
any relevant land;
"Director" means the Director of Consumer
Affairs and Fair Trading;
"purchaser" includes a lessee and mortgagee,
and a prospective purchaser, lessee and
mortgagee, and a grantee or prospective
grantee of an option and any other person
who for valuable consideration takes or
deals in any land;
"relevant disclosure documents" means the
relevant disclosure documents referred to
in section 189;
"residential agency agreement" means an
agreement between a real estate agent
and the owner of residential property
under which the real estate agent agrees,
as agent for the owner, to induce or
attempt to induce, or negotiate with a
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s. 182 No. Property Agents and Land Transactions 2005
view to inducing, any person to do all or
any of the following:
(a) acquire the residential property;
(b) make an offer to acquire the
residential property;
(c) enter into a contract to acquire
the residential property;
"residential property" means property
intended primarily for occupation as a
place of residence but does not include -
(a) property that is intended only for
rental; or
(b) property of a class prescribed in
the regulations for the purposes
of this definition;
"vendor" includes a lessor and mortgagor,
and a prospective vendor, lessor and
mortgagor, and a grantor or prospective
grantor of an option and any other person
who for valuable consideration makes a
disposition of any land.
182. Application of Part
This Part does not affect the operation of the
Conveyancing and Law of Property Act 1884.
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2005 Property Agents and Land Transactions No. s. 183
183. Crown to be bound
This Part binds the Crown not only in right of
Tasmania but also, so far as the legislative power
of Parliament permits, the Crown in all its other
capacities.
Division 2 - Disclosure of information by vendors of land
184. Application of Division
This Division applies to all sales of land unless,
during the period of 6 months before the
commencement of this section -
(a) the land has been offered for sale; or
(b) a residential agency agreement has been
made in respect of the land.
185. Vendors to provide relevant disclosure documents
(1) When offering land for sale, a vendor or any
agent of the vendor must ensure that the relevant
disclosure documents are available to a
purchaser in one or more of the following ways:
(a) during business hours at one or more of
the following places:
(i) an address nominated by the
vendor as his or her residential
address;
(ii) an address nominated by the
vendor as his or her business
address;
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(iii) the office of the vendor's agent;
(b) in an electronic format that enables the
information to be printed and saved to an
electronic file;
(c) by post at the request of the purchaser;
(d) by electronic mail at the request of the
purchaser.
Penalty: Fine not exceeding 50 penalty units.
(2) A vendor or any agent of the vendor must give
the relevant documents to the purchaser when
requested by the purchaser to do so.
Penalty: Fine not exceeding 50 penalty units.
(3) For the purposes of this section, a reference to
offering land for sale includes a reference to
showing, or in any way exhibiting, land to a
purchaser.
186. Location of disclosure documents to be contained in
advertisements
(1) A real estate agent who advertises property in
any written advertisement or on any website
must ensure that the advertisement contains a
statement advising a purchaser of the means by
which the disclosure documents required by
section 181 may be obtained.
Penalty: Fine not exceeding 500 penalty units
(2) If an advertisement contains more than one
property for sale and the disclosure documents in
respect of each property can be obtained from
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2005 Property Agents and Land Transactions No. s. 187
the same location or in the same manner, it is
sufficient compliance with subsection (1) if the
statement referred to in that subsection is
contained once in that advertisement.
187. Vendors to provide relevant disclosure documents
before public auction
In the case of a sale by public auction, in
addition to the requirements under section 185,
the vendor or property agent must make the
relevant disclosure documents available to a
purchaser, at the place at which the auction is to
be conducted, at least 30 minutes before the
commencement of the auction.
Penalty: Fine not exceeding 50 penalty units.
188. Contract voidable if relevant disclosure documents
not provided
(1) If a vendor enters into a contract for sale in
respect of land and the relevant disclosure
documents were not provided in accordance with
either section 185 or 187, the purchaser may at
any time before settlement rescind the contract
without penalty.
(2) A purchaser may rescind a contract in
accordance with this section notwithstanding
that an offence has been committed under
section 185 or 187.
(3) A purchaser may rescind the contract by serving
written notice at any time before completion of
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the contract stating that the purchaser is
rescinding the contract.
(4) The notice must be served on -
(a) the vendor or the vendor's solicitor; or
(b) if there is more than one vendor, any one
of the vendors or the solicitor of any one
of them; or
(c) the agent of the vendor or vendors.
(5) The notice must be signed by -
(a) the purchaser or the purchaser's solicitor;
or
(b) if there is more than one purchaser, each
of the purchasers or each of their
respective solicitors.
(6) Service of a notice under this section is to be
effected -
(a) in accordance with any provision of the
contract; or
(b) at the address of the vendor shown in the
contract; or
(c) by facsimile transmission to the vendor;
or
(d) by other prescribed means.
189. Relevant disclosure documents
For the purposes of this Part, the relevant
disclosure documents include -
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2005 Property Agents and Land Transactions No. s. 189
(a) a copy of the proposed contract
incorporating a warning notice
completed in accordance with
section 191; and
(b) in the case of land that is subject to the
Land Titles Act 1980, a copy of the
relevant folio of the Register kept by the
Recorder of Titles under that Act; and
(c) in the case of land that is subject to the
Land Titles Act 1980, if the relevant folio
of that Register refers to a plan, a copy of
that plan; and
(d) a copy of any certificate relating to the
land issued under section 132 or 337 of
the Local Government Act 1993; and
(e) where the land is included in a strata
scheme under the Strata Titles Act
1998 -
(i) a statement that the land is part of
a strata scheme and that the use
of the land is subject to by-laws
made under Part 7 of that Act and
other requirements under that
Act; and
(ii) the name of the strata scheme;
and
(iii) the name and contact details of
the secretary or manager of the
body corporate or, if no such
person exists, a statement to that
effect; and
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(iv) a copy of any by-laws under that
Act that are applicable to the
land; and
(v) a certificate under section 83(5)
of that Act; and
(vi) copies of public liability and
building insurance policies taken
out by the body corporate,
including certificates of currency;
and
(vii) a statement of any expenditure or
liability that the body corporate
has incurred or resolved to incur
and the liability of the owner of
the lot or a statement that there is
no such expenditure or liability;
and
(viii) details of the body corporate
sinking fund or a statement that
no such fund exists; and
(f) a vendor statement completed in
accordance with section 190; and
(g) any other prescribed documents.
190. Vendor statements
(1) A vendor statement required under section 189 -
(a) is to contain the prescribed information;
and
(b) is to be signed by the vendor and a
witness.
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2005 Property Agents and Land Transactions No. s. 191
(2) A vendor statement is not valid if witnessed by
any property agent.
191. Warning notices
(1) A warning notice required under section 189
must contain the prescribed information and
must appear on the first page of a contract for the
sale of land.
(2) Both the vendor and purchaser must, on entering
into the contract, sign the notice certifying that
they are aware of and accept their rights and
obligations under this Division.
192. Validity of relevant disclosure documents
If the relevant disclosure documents have been
obtained more than 6 months earlier than the
date on which they are given to a purchaser, they
are not valid for any purpose of this Division.
193. Variation of disclosure information
(1) The relevant disclosure documents must be
accurate as at the date of service on the
purchaser.
(2) If, in the period between -
(a) the relevant disclosure documents being
provided to a purchaser and the
purchaser signing the contract; or
(b) the signing of the contract and the
completion of the contract -
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circumstances change with the effect that there is
a material change in the particulars contained in
the relevant disclosure documents, the vendor
must provide the purchaser with written
notification of the details of the change within 5
days or before completion of the contract,
whichever first occurs.
Penalty: Fine not exceeding 50 penalty units.
(3) It is a defence if the person charged with an
offence under subsection (2) establishes that he
or she was not aware at the relevant time that the
change in circumstances had occurred.
194. Offence to provide false, inaccurate or misleading
information
A vendor or agent of a vendor who knowingly or
recklessly -
(a) supplies false, inaccurate or misleading
information to the purchaser in the
relevant disclosure documents; or
(b) fails to supply all the information
required to be supplied in the relevant
disclosure documents -
is guilty of an offence.
Penalty: Fine not exceeding 50 penalty units.
195. Liability of agent
(1) In addition to any disclosure of information
required of a vendor under this Part, an agent of
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2005 Property Agents and Land Transactions No. s. 196
the vendor must disclose to a prospective
purchaser any information that the agent knows
or ought reasonably to know is likely to affect
the purchaser's decision to purchase the land.
Penalty: Fine not exceeding 500 penalty units.
(2) An agent of a vendor is liable for any loss or
damage arising from a failure to disclose to a
purchaser any information which the agent knew
or ought reasonably to have known was likely to
affect the purchaser's decision to purchase the
land.
196. Certain conditions to be implied in contract
(1) A contract for the sale of land is subject to the
following terms whether or not they are stated in
the contract:
(a) that the land is sold free of encumbrances
other than encumbrances listed in the
vendor's statement or, in the case of land
that is subject to the Land Titles Act
1980, shown on the folio of the Register
kept by the Recorder of Titles under that
Act;
(b) that the vendor will, at the due time of
completion, be able to complete the
contract;
(c) that the information provided in the
relevant disclosure documents required
under section 189 is correct.
(2) If, before completion of the contract, the
purchaser becomes aware of a breach of any
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condition to which the contract is subject and the
loss arising from the breach exceeds more than
5% or such other percentage as may be
prescribed of the value of the relevant land, the
purchaser may rescind the contract or complete
the contract and claim damages from the vendor.
(3) Any loss arising from a breach of any condition
to which the contract is subject may be
recovered by the purchaser from the vendor in a
court of competent jurisdiction.
(4) Where there is a dispute as to whether or not a
purchaser may exercise a right to rescind a
contract under subsection (2), the Director may
appoint a person who is qualified as a land
valuer under section 4 of the Land Valuers Act
2001 to determine whether or not a purchaser
may exercise such a right and the valuer's
determination is binding on all parties to the
dispute.
(5) A land valuer appointed under subsection (4) is
to determine whether, for the purposes of
subsection (2), the loss arising from the breach
of a condition of the contract exceeds 5% or
such other percentage as may be prescribed of
the value of the relevant land.
(6) The vendor and purchaser are to pay in equal
shares the cost incurred by a land valuer
appointed under subsection (4).
197. Defences
A purchaser may not rescind a contract if a court
is satisfied that -
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2005 Property Agents and Land Transactions No. s. 198
(a) the vendor has acted honestly and ought
fairly to be excused for the
contravention; and
(b) the purchaser is substantially in as good a
position as if all the relevant provisions
of this Division had been complied with.
198. Purchaser's rights in respect of information
provided by third parties
Where a vendor is required under this Division
to provide to a purchaser a document obtained
from a State Service Agency or a council, the
purchaser may exercise, in respect of the
document, the rights, powers and immunities
that the purchaser would have had if the
document had been issued to the purchaser.
Division 3 - Cooling-off periods - residential property
199. Cooling-off period
(1) Subject to subsections (5), (7) and (8), there is a
cooling-off period for -
(a) a contract for the sale of residential
property; or
(b) a residential agency agreement.
(2) During the cooling-off period -
(a) the purchaser, in the case of a contract
for the sale of residential property; or
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s. 199 No. Property Agents and Land Transactions 2005
(b) the vendor, in the case of a residential
agency agreement -
may rescind the contract or agreement by
exercising the right to do so given by section 202
or 203.
(3) In the case of a contract for the sale of residential
property, the cooling-off period starts on the day
on which the purchaser becomes bound by the
contract and, subject to subsection (5), expires at
5 p.m. on the second business day after that day.
(4) In the case of a residential agency agreement, the
cooling-off period starts on the day on which the
agreement is made and expires at 5 p.m. on the
next business day.
(5) In the case of a contract for the sale of residential
property, the cooling-off period expires if the
purchaser enters into any other agreement to
purchase residential property, in which case -
(a) there is no cooling-off period in respect
of the second or subsequent contracts for
the sale of residential property; and
(b) the purchaser must disclose the
circumstances to all vendors and to any
real estate agents acting for them.
(6) A person who suffers any loss as a result of a
purchaser failing to comply with
subsection (5)(b) has a right of action against
that purchaser to recover that loss.
(7) There is no cooling-off period in respect of a
contract for the sale of residential property -
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2005 Property Agents and Land Transactions No. s. 200
(a) if the contract is made following a public
auction; or
(b) if the contract is made during the 3 days
immediately before the day on which a
public auction of the residential property
was due to be held; or
(c) if a public auction of the residential
property is held but the property is not
sold and the contract is made during the
3 days immediately following the public
auction.
(8) There is no cooling-off period in respect of a
residential agency agreement if the parties have
previously entered into a residential agency
agreement in respect of the residential property
concerned and in substantially the same terms.
200. Contracts to contain statement of cooling-off rights
and other prescribed information
(1) Except where section 199(5) or (7) applies, a
vendor of residential property must ensure that,
in the document incorporating the terms of the
contract for the sale of the residential property,
there is set out the following statement:
"THIS CONTRACT IS SUBJECT TO A
COOLING-OFF PERIOD OF 2 BUSINESS
DAYS"
Penalty: Fine not exceeding 50 penalty units.
(2) Except where section 199(8) applies, a real
estate agent must ensure that, in any residential
agency agreement that the agent enters into,
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s. 201 No. Property Agents and Land Transactions 2005
there is set out in the agreement the following
statement:
"THIS AGREEMENT IS SUBJECT TO A
COOLING-OFF PERIOD OF ONE
BUSINESS DAY"
Penalty: Fine not exceeding 50 penalty units.
(3) A statement under this section is to be printed in
upper case in type not smaller than 18 point and
is to appear immediately above the place in the
contract or residential agency agreement where
the parties sign it.
201. Real estate agent may not receive consideration
where cooling-off right exercised
(1) A contract for the sale of residential property or
a residential agency agreement must not provide
for the real estate agent to receive any valuable
consideration as a consequence of a vendor or
purchaser exercising a cooling-off right under
this Division.
(2) A real estate agent must not demand any
valuable consideration in contravention of
subsection (1).
Penalty: Fine not exceeding 500 penalty units.
(3) Any valuable consideration received by a real
estate agent in contravention of subsection (1) is
recoverable from the agent as a debt in any court
of competent jurisdiction by the purchaser or the
vendor, as the case may require.
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2005 Property Agents and Land Transactions No. s. 202
202. Right to rescind contract for sale of residential
property - cooling-off rights
(1) The purchaser under a contract for the sale of
residential property may rescind the contract by
serving written notice at any time during the
cooling-off period stating that the purchaser is
rescinding the contract.
(2) The notice must be served on -
(a) the vendor or the vendor's solicitor; or
(b) if there is more than one vendor, any one
of the vendors or the solicitor for any one
of them; or
(c) the agent of the vendor or vendors.
(3) The notice must be signed by -
(a) the purchaser or the purchaser's solicitor;
or
(b) if there is more than one purchaser, each
of the purchasers or each of their
respective solicitors.
(4) A vendor is entitled to payment of a prescribed
fee if the purchaser exercises his or her right to
rescind a contract under this section, and the fee
is recoverable from the purchaser in a court of
competent jurisdiction as a debt due to the
vendor.
(5) Service of a notice under this section is to be
effected -
(a) in accordance with any provision of the
contract; or
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(b) at the address of the vendor shown in the
contract; or
(c) by facsimile transmission to the vendor;
or
(d) by other prescribed means.
203. Right to rescind residential agency agreement -
cooling-off rights
(1) A vendor of residential property who is a party
to a residential agency agreement in respect of
the property may rescind the agreement at any
time during the cooling-off period by serving a
written notice signed by the vendor or the
vendor's solicitor on the real estate agent stating
that the vendor is rescinding the agreement.
(2) The notice is of no effect if, at the time it is
served, the vendor has entered into a contract for
the sale of the property that is the subject of the
residential agency agreement.
(3) Service of a notice under this section is to be
effected -
(a) in accordance with any provision of the
agreement; or
(b) at the address of the real estate agent
shown in the agreement; or
(c) by facsimile transmission to the real
estate agent; or
(d) by other prescribed means.
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2005 Property Agents and Land Transactions No. s. 204
(4) A rescission under this section does not prevent
a real estate agent from recovering from the
vendor any amount payable under the residential
agency agreement in respect of anything done
before the rescission.
204. Waiver of rights under this Division
(1) This section applies if -
(a) in the case of a contract for the sale of
residential property, the purchaser of the
property has delivered a waiver to the
vendor or to the vendor's property agent
after entering into the contract; or
(b) in the case of a residential agency
agreement with a real estate agent, the
person proposing to enter into the
agreement has delivered a waiver to the
agent after entering into the agreement.
(2) This section applies to contracts, whether made
before or after the commencement of this
section, and does not affect the law relating to
past performance or a sale by the Supreme
Court.
(3) Where this section applies, this Division does
not apply in respect of the contract or agreement
mentioned in subsection (1).
(4) A waiver has no effect for the purpose of this
section unless -
(a) it is in writing signed by the person
giving the waiver; and
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s. 205 No. Property Agents and Land Transactions 2005
(b) it states that the person giving the waiver
has received independent advice on the
effect of giving the waiver; and
(c) it states unequivocally that the person
giving the waiver waives the rights that
he or she would otherwise have had
under this Division to rescind the
contract or agreement mentioned in
subsection (1).
Division 4 - Supplemental
205. Contracts, &c., to avoid requirements of this Part
void
If a contract for the sale of land or a residential
agency agreement made or entered into, orally or
in writing, has, or purports to have, the purpose
or effect of defeating or avoiding the
requirements of this Part, the contract or
agreement is void.
206. Responsibilities of purchaser
Nothing in this Part relieves a purchaser of the
duty to exercise reasonable care to protect
himself or herself, having regard to any facts
which are known to him or her or reasonably
within his or her knowledge.
207. Prosecutions
A prosecution for an offence against this Part -
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2005 Property Agents and Land Transactions No. s. 207
(a) may, with the consent of the Director, be
instituted by an authorised officer; and
(b) must be commenced within -
(i) 2 years after the time when the
matter of complaint arose; and
(ii) 6 months after the time when the
matter of complaint came to the
attention of the Director.
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s. 208 No. Property Agents and Land Transactions 2005
PART 11 - MISCELLANEOUS PROVISIONS
208. Obstruction
A person must not obstruct, threaten or
intimidate a person in the exercise of a function
conferred or imposed on the person by this Act.
Penalty: Fine not exceeding 1 000 penalty
units.
209. Liability of directors, &c.
If an offence under this Act is committed by a
company, each person who is, at the time of the
commission of the offence, a director, manager,
secretary or other similar officer of the company
or who is acting or purporting to act as such is
guilty of that offence unless that person proves
that -
(a) the offence was committed without his or
her consent; and
(b) he or she exercised such diligence to
prevent the commission of the offence as
he or she ought to have exercised having
regard to the nature of his or her
functions in that capacity and the
circumstances in which the offence was
committed.
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2005 Property Agents and Land Transactions No. s. 210
210. Service of documents
(1) Except where otherwise provided in this Act, a
document required by this Act to be given to,
served on or sent to, a property agent may be so
given, served or sent by -
(a) giving it to the property agent personally;
or
(b) posting it to the address of the place
specified in the Register as the place
where the business of the property agent
is carried on, or where the property agent
is employed, or by leaving it at that
place.
(2) Except where otherwise provided in this Act, a
document required by this Act to be given to,
served on or sent to a person who is not a
property agent may be so given, served or sent
by -
(a) giving it to that person personally; or
(b) posting it to the last-known place of
residence or place of business of that
person, or by leaving it at that place.
211. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) Without limiting the generality of subsection (1),
the regulations may -
(a) provide for -
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s. 211 No. Property Agents and Land Transactions 2005
(i) the fees to be paid to the Board
for registration; and
(ii) the conduct of examinations by
the Board for the purposes of this
Act, and the payment to the
Board of fees by candidates at
any such examinations; and
(iii) the fees to be paid to the Board
on the production to the Board of
audited accounts and records of
trust money; and
(iv) codes of conduct to be observed
by property agents; and
(v) penalties not exceeding 500
penalty units for an offence under
the regulations; and
(b) exempt -
(i) a specified vendor or specified
class of vendors from the
application of Division 3 of
Part 10; or
(ii) specified residential property or
residential property of a
prescribed class or description
from the application of Division 3
of Part 10.
(3) Regulations made under this Act may be made -
(a) so as to confer a discretionary authority
on the Board or the Trust; and
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2005 Property Agents and Land Transactions No. s. 212
(b) so as to provide, in a specified case or
class of cases, for the exemption of a
person or a class of persons from any of
the provisions of the regulations whether
unconditionally or on specified
conditions and either wholly or to such
an extent as is specified.
(4) A fee that may be imposed for registration is not
limited to an extent that is related to the cost of
registration, and different fees may be prescribed
for different classes of registration.
(5) A fee that may be imposed for the production to
the Board of audited accounts and records of
trust money is not limited to an extent that is
related to the cost to the Board of checking those
accounts or records, but may include a fee for
the late delivery of the accounts or records.
212. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Minister for Justice and Industrial
Relations; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Justice.
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s. 213 No. Property Agents and Land Transactions 2005
213. Savings and transitional provisions
(1) Words and expressions defined in the repealed
Act and used in this section have the same
meaning in this section as they do in that Act.
(2) In this section -
"commencing day" means the day when the
relevant provision of this Act
commences.
(3) A reference to the Council in any law or in any
contract, award or other instrument to which the
Council was a party is to be construed, except in
relation to matters that occurred before the
commencing day, as a reference to the Board.
(4) The property, powers, rights, liabilities and
obligations of the Council immediately before
the commencing day become the property,
powers, rights, liabilities and obligations of the
Board on that day.
(5) Legal or other proceedings instituted or to be
instituted by or against the Council, and any
legal or other proceeding that might have been
continued or commenced by or against the
Council, may be continued or commenced by or
against the Board.
(6) A person who was an officer or an employee of
the Council immediately before the commencing
day continues as an officer or employee of the
Board as if they had been appointed to that
office or employed by the Board as from the date
they were appointed or employed by the
Council.
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2005 Property Agents and Land Transactions No. s. 213
(7) A bank account maintained by the Council
immediately before the commencing day
continues in existence as a bank account
maintained by the Board.
(8) The money of the Board may be applied by the
Board in payment or discharge of any expenses,
charges, obligations or liabilities that were
lawfully incurred or undertaken by the Council
before the commencing day, in or in connection
with the performance of its functions, and that
were not paid or discharged before that day.
(9) Where an application for a licence or a renewal
of a licence was made under the repealed Act but
not determined before the commencing day, the
application is to be dealt with and determined by
the Board as if the application had been made for
registration under this Act, and this Act is to
apply to the application accordingly.
(10) The Board is to register in Part 1(1) of the
Register the name of each person who
immediately before the commencing day was a
real estate agent.
(11) For the avoidance of doubt, it is declared that, if
immediately before the commencing day a body
corporate was a real estate agent to which clause
11(3) of Part 2 of Schedule 3 to the repealed Act
applied, the Board is to register the body
corporate in Part 1(1) of the Register even
though the body corporate may not comply with
section 63(4).
(12) The Board is to register in Part 1(2) of the
Register the name of each person who
immediately before the commencing day was a
real estate manager.
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s. 213 No. Property Agents and Land Transactions 2005
(13) The Board is to register in Part 3 of the Register
the name of each person who immediately
before the commencing day was the holder of a
general auctioneers licence.
(14) A person who immediately before the
commencing day was a real estate sales
consultant employed by a real estate agent is to
be taken to be a person qualified under this Act
to be a property consultant employed by that real
estate agent.
(15) A person who immediately before the
commencing day was a real estate sales
consultant performing the functions of an
assistant property manager is to be taken to be a
person qualified under this Act to be an assistant
property manager.
(16) The reference in section 63(2) to a person's
name having been in the Register at any time
during the 5 years immediately preceding the
application for registration is to be taken to
include any person who has been a real estate
agent under the repealed Act at any time during
that period.
(17) Where the Council was holding an inquiry under
section 108 of the repealed Act but on the
commencing day had not reached a
determination in respect of the subject of the
inquiry, the Board is to, if it considers that the
subject of the inquiry would have been the
subject of a conduct complaint under Part 6,
treat the subject of the inquiry as a new conduct
complaint made to it under this Act on the
commencing day.
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2005 Property Agents and Land Transactions No. s. 213
(18) A person aggrieved by the decision of the
Council following an inquiry who had a right
immediately before the commencing day to
apply to the Magistrates Court (Administrative
Appeals Division) for a review of the decision is
to retain that right as if the decision was from a
review of a decision of the Board made on the
same date as the decision of the Council.
(19) A reference to the Auctioneers and Real Estate
Agents Trust in any law or in any contract,
award or other instrument to which the
Auctioneers and Real Estate Agents Trust was a
party, is to be construed, except in relation to
matters that occurred before the commencing
day, as a reference to the Property Agents Trust.
(20) The alteration of the name and constitution of
the Auctioneers and Real Estate Agents Trust
pursuant to section 149 does not affect any
property, powers, rights, liabilities or obligations
of the body corporate continued in existence by
that section.
(21) The alteration of the name and constitution of
the Auctioneers and Real Estate Agents Trust
pursuant to section 149 does not render defective
any legal or other proceedings instituted or to be
instituted by or against the body corporate
continued in existence by that section, and any
legal or other proceeding that might have been
continued or commenced by or against the body
corporate under the name Auctioneers and Real
Estate Agents Trust may be continued or
commenced by or against the body corporate
under the name the Property Agents Trust.
(22) A person who was an officer or an employee of
the Auctioneers and Real Estate Agents Trust
189
s. 213 No. Property Agents and Land Transactions 2005
immediately before the commencing day
continues as an officer or employee of the
Property Agents Trust.
(23) A bank account, including a trust deposit
account, or any investment maintained by the
Auctioneers and Real Estate Agents Trust
immediately before the commencing day
continues in existence as a bank account or
investment maintained by the Property Agents
Trust.
(24) Any audit of the accounts and records of the
Property Agents Trust in respect of any period
beginning before and ending after the
commencing day is to include an audit of any
accounts and records of the Auctioneers and
Real Estate Agents Trust during any part of that
period occurring before that day as if they were
the accounts and records of the Property Agents
Trust.
(25) Any report of the Property Agents Trust on the
activities of that Trust during any period
beginning before and ending after the
commencing day is to include a report of any
activities of the Auctioneers and Real Estate
Agents Trust during any part of that period
occurring before that day as if they were the
activities of the Property Agents Trust.
(26) Money received by the Property Agents Trust
may be applied by that Trust in payment or
discharge of any expenses, charges, obligations
or liabilities that were lawfully incurred or
undertaken before the commencing day by the
Auctioneers and Real Estate Agents Trust, in or
in connection with the performance of its
190
2005 Property Agents and Land Transactions No. s. 214
functions and that were not paid or discharged
before that day.
214. Consequential amendments
The legislation specified in Schedule 1 is
amended as specified in that Schedule.
215. Legislation repealed
The legislation specified in Schedule 2 is
repealed.
216. Legislation rescinded
The legislation specified in Schedule 3 is
rescinded.
191
sch. 1 No. Property Agents and Land Transactions 2005
SCHEDULE 1 - CONSEQUENTIAL AMENDMENTS
Section 214
Second-hand Dealers and Pawnbrokers Act 1994
1. Section 3(1) is amended by omitting paragraph
(a) from the definition of "second-hand dealer"
and substituting:
(a) a real estate agent, or a general
auctioneer, within the meaning of the
Property Agents and Land Transactions
Act 2005; or
Security and Investigations Agents Act 2002
1. Section 41(1)(i) is amended by omitting "the
holder of a real estate agents licence under the
Auctioneers and Real Estate Agents Act 1991"
and substituting "a real estate agent, within the
meaning of the Property Agents and Land
Transactions Act 2005,".
Shop Trading Hours Act 1984
1. Section 3A(3)(a) is amended by omitting "the
holder of an auctioneer's licence under the
Auctioneers and Real Estate Agents Act 1991"
and substituting "a real estate agent, or a general
auctioneer, within the meaning of the Property
Agents and Land Transactions Act 2005,".
192
2005 Property Agents and Land Transactions No. sch. 2
SCHEDULE 2 - LEGISLATION REPEALED
Section 215
Auctioneers and Real Estate Agents Act 1991 (No. 37 of 1991)
193
sch. 3 No. Property Agents and Land Transactions 2005
SCHEDULE 3 - LEGISLATION RESCINDED
Section 216
Auctioneers and Real Estate Agents Regulations 1992 (No. 37
of 1992)
Auctioneers and Real Estate Agents Amendment Regulations
1996 (No. 110 of 1996)
194 Government Printer, Tasmania