Big penalties for agents breaking law

Catchwords: Business law, duties, real estate agent, stock agent, rural property agent, land agent, penalties, Property, Stock and Business Agents Act, commission, agents, fraud, rogue agent

Real estate agents are subject to new laws, which came into effect September 1 later year (the Property, Stock and Business Agents Act). Consumers buying and selling rural and residential property and agents are all affected.

This was a legislative response to community concerns about rogue agents and non-disclosure of secret benefits.

Some agents over quoted the estimated selling price of property, as a bait to sign up the vendor on the agency agreement and get the business.

Some also understated the estimated selling price to get purchasers to inspections and auctions.

This practice encouraged unrealistic expectations of price by the vendor and purchaser alike, “conditioned” vendors to give in and accept less and incurred costs for unsuccessful purchasers.

The Act makes it an offence for an agent to make a “false representation” to a seller of residential property as to the agent’s true estimate of selling price (or price range) and/or to understate it to a purchaser. This maximum penalty upon conviction is $21,000.

Some agents received rebates from advertising, which were not adequately disclosed to vendors.

The Act now requires specific disclosure by licensees of the source and estimated amounts of all rebates in the agency agreement with residential and rural sellers (s57).

Failure to do so renders the agent not entitled to any expenses.

An agency agreement that fails to comply with regulations and the standard terms means that the agent is not entitled to both the commission and the expenses (s55).

There is also a more general duty to disclose any benefits to be derived from business, family and other relationships. The effect of non-disclosure is that the agent is liable to conviction (s47).

An agent, a close relative or an associated company cannot obtain an interest in the property, if there is a commission payable (s49).

Agents who breach the legislation are also liable to disciplinary action (s191). The Act and the Regulation provides a simplified code of the diverse Common and Statute law, which governs agency law.

Agents and salesperson (s10) must know and understand the code.

There are duties of reasonable skill, care and diligence; not to mislead and deceive; to comply with fiduciary obligations; to act in the client’s best interest; to act in accordance with the client’s instructions; not to disclose confidential information of the client; to avoid a conflict of interest; and agency agreements must comply with the regulations.

There are compulsory terms that apply to all agency agreements.

There is a power to review agents’ commissions and fees so they are “reasonable”.

If an agent or salesperson renders a fraudulent account for expenses or commission, they can be convicted of an indictable offence and liable to imprisonment for up to 10 years (s212).

An employee who aids and abets a contravention of the code is liable to the same penalties (s213). Agents cannot contract out of compliance.

For consumers, the legislation creates new rights.

It is easier and quicker to ascertain and access these rights without incurring substantial legal costs. Access is facilitated through NSW Fair Trading and “NCAT”- NSW Civil and Administrative Tribunal, which allows parties to represent themselves.

Jonathan de Vere Tyndall

Article updated 7 January 2015, originally published in the Country Leader 23/08/04

Editors note: The articles published contain comment only and not legal advice, for which you should retain a solicitor. No responsibility is accepted for the accuracy of the contents.