South Australia: Land and Business (Sale and Conveyancing) Act 1994 (SA)

South Australia Land and Business (Sale and Conveyancing) Act 1994 An Act to regulate the sale of land and businesses and the preparation of conveyancing instruments; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Meaning of small business Part 2—Contracts for sale of land or businesses 5 Cooling-off 6 Abolition of instalment purchase or rental purchase arrangements 7 Particulars to be supplied to purchaser of land before settlement 8 Particulars to be supplied to purchaser of small business before settlement 9 Verification of vendor's statement 10 Variation of particulars 11 Agent or auctioneer to make statements available before auction 12 Councils, statutory authorities and prescribed bodies to provide information 13 False certificate 13A Prescribed notice to be given to purchaser 14 Offence to contravene Part 15 Remedies 16 Defences 17 Service of vendor's statement etc Part 3—Subdivided land 18 Obligations and offences in relation to subdivided land 19 Inducement to buy subdivided land Part 4—Special requirements relating to agents and sales representatives 20 Authority to act as agent 21 Requirements relating to offers to purchase residential land 22 Person signing document to be given copy 23 Agent not to receive commission if contract avoided or rescinded 24 Agent not to lodge caveat for sums owing by client 24A Representations as to likely selling price in marketing residential land 24B Financial and investment advice 24C Agent to disclose certain benefits connected with sale or purchase 24D Agent not to retain benefits in respect of services associated with sale or purchase of residential land 24E Agent to supply valuation in prescribed circumstances 24F Agent not to act for both purchaser and vendor of land or business 24G Restriction on obtaining beneficial interest in selling or appraising property 24H Agent not to pay commission except to officers or employees or another agent Part 4A—Auctions 24I Standard conditions of auction for residential land 24J Preliminary actions and records required for auctions of residential land 24K Registered bidders only at auctions of residential land 24L Collusive practices at auctions of land or businesses 24M Disruption of auction prohibited 24N Dummy bidding prohibited at auctions of land or businesses 24O When vendor bid by auctioneer permitted 24P Last vendor bid must be identified if property passed in Part 5—Preparation of conveyancing instruments 25 Part 5 subject to transitional provisions 26 Interpretation of Part 5 27 Preparation of conveyancing instrument for fee or reward 28 Preparation of conveyancing instrument by agent or related person 29 Procuring or referring conveyancing business 30 Conveyancer not to act for both parties unless authorised by regulations 31 Effect of contravention Part 6—Miscellaneous 32 Exemptions 33 No exclusion etc of rights conferred or conditions implied or applied by Act 34 Civil remedies unaffected 35 Misrepresentation 36 False or misleading representation 37 Signing on behalf of agent 37A Keeping of records 37B General defence 38 Liability for act or default of officer, employee or agent 39 Offences by bodies corporate 40 Prosecutions 41 Regulations 42 Review of Parts 4 and 4A Schedule—Transitional provisions Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Land and Business (Sale and Conveyancing) Act 1994. 3—Interpretation In this Act, unless the contrary intention appears— agent has the same meaning as in the Land Agents Act 1994; allotment has the same meaning as in Part 19AB of the Real Property Act 1886 and in addition includes a community lot (not being a strata lot) within the meaning of the Community Titles Act 1996; auction record—see section 24J; authorised officer means an authorised officer under the Fair Trading Act 1987; bidders register—see section 24J; business includes a share of, or interest in, a business or the goodwill of a business, but does not include a share in the capital of a body corporate; commission includes any consideration (other than reimbursement of expenses) to which an agent is entitled for services as an agent; Commissioner means the Commissioner for Consumer Affairs; conveyancing instrument means instrument as defined in the Real Property Act 1886; date of settlement, in relation to a contract for the sale of land or a business, means— (a) if a date is fixed by the contract for settlement—the date fixed by the contract or some other date agreed by the parties in substitution for that date; (b) in any other case—the date on which settlement takes place; encumbrance, in relation to land, includes— (a) an easement (other than a statutory easement not registered on the certificate of title to the land that relates only to the provision of electricity, gas, water, sewerage or telephone to the land); or (b) a right of way, restrictive covenant, writ, summons, warrant, caveat, lien, notice, order, requirement, declaration, claim or demand; or (c) any other factor (whether similar or dissimilar to those mentioned in paragraphs (a) and (b)) affecting, presently or prospectively, the title to, or the possession or enjoyment of, the land; land includes— (a) an interest in land; and (b) an exclusive right (whether deriving from the ownership of a share or interest in a body corporate or partnership or arising in some other way) to the separate occupation of land or a building or part of a building; legal practitioner has the same meaning as in the Legal Practitioners Act 1981; mortgage means a legal or equitable mortgage; offer, in relation to the purchase of land or a business, includes a statement of the price that the purchaser is willing to pay for the land or business including such a statement made in a tender process, request for expressions of interest or other similar process, but does not include a bid in an auction; place of residence means a building or part of a building used, or currently designed for use, as a single dwelling, and includes outbuildings or other appurtenances incidental to such a use; purchaser means the person or persons named in a contract as purchaser or purchasers or any one or more of them, and includes a prospective purchaser and a person authorised to act on behalf of a purchaser or prospective purchaser in relation to the transaction (whether or not an agent within the meaning of the Land Agents Act 1994); qualified accountant means— (a) a person who has qualifications in accountancy required by regulation; or (b) a person experienced in accountancy who is approved by the Commissioner as a suitable person to exercise the functions of a qualified accountant under Part 2; registered conveyancer means a person registered as a conveyancer under the Conveyancers Act 1994; residential land means— (a) land on which a single place of residence or 2 places of residence are situated, or in the course of construction, and on which there are no other improvements; or (b) vacant land on which it is lawful to construct a place of residence; or (c) a community lot or unit under the Community Titles Act 1996 or the Strata Titles Act 1988 comprising a single place of residence, whether constructed or in the course of construction, including a place used or designed for use for a purpose ancillary to the place of residence; or (d) an exclusive right (whether deriving from the ownership of a share or interest in a body corporate or partnership or arising in some other way) to the separate occupation of a single place of residence, whether constructed or in the course of construction, including a place used or designed for use for a purpose ancillary to the place of residence, but does not include— (e) land or a community lot or unit that is used wholly for non-residential purposes; or (f) land that is more than 2.5 hectares in area (or such other area as may be prescribed); or (g) an exclusive right to the separate occupation of land referred to in paragraph (e) or (f); sale includes auction and exchange and purchase has a corresponding meaning; sales agency agreement—see section 20; sales representative has the same meaning as in the Land Agents Act 1994; small business—see section 4; standard conditions of auction—see section 24I; subdivided land means any one or more allotments comprising vacant land shown on a plan of division that has been— (a) approved under an Act; and (b) deposited in the Lands Titles Registration Office or the General Registry Office at Adelaide, but does not include allotments intended wholly or mainly for use for agricultural, pastoral, horticultural or viticultural purposes; vacant land means land on which no house or building suitable for human occupation is built; vendor means the person or persons named in a contract as vendor or vendors or any one or more of them, and includes a prospective vendor and a person authorised to act on behalf of a vendor or prospective vendor in relation to the transaction (whether or not an agent within the meaning of the Land Agents Act 1994); vendor's statement means the statement that the vendor of land or a small business is required to serve under Part 2, and includes all certificates that are required to be endorsed on or attached to the statement. 4—Meaning of small business (1) A business is a small business for the purposes of this Act if the business is, or is to be, sold for a total consideration not exceeding— (a) $300 000 (excluding GST); or (b) if some other amount is fixed by regulation—that amount. (2) For the purposes of subsection (1)— (a) if land is, or is to be, sold in fee simple under the contract for the sale of a business, any component of the consideration attributable to the value of the land is to be disregarded in determining the total consideration for which the business is, or is to be, sold; and (b) the value of land sold or to be sold in fee simple under the contract will be taken to be— (i) the value agreed in writing between the vendor and purchaser; or (ii) in the absence of such an agreement—the capital value determined under the Valuation of Land Act 1971; and (c) if stock-in-trade is, or is to be, sold under the contract for the sale of a business, any component of the consideration attributable to the value of the stock-in-trade, determined according to the usual selling price of the stock, is to be disregarded in determining the total consideration for which the business is, or is to be, sold. Part 2—Contracts for sale of land or businesses 5—Cooling-off (1) Subject to this section, a purchaser under a contract for the sale of land or a small business may, by giving the vendor written notice before the prescribed time of the purchaser's intention not to be bound by the contract, rescind the contract. (2) The notice may be given— (a) by giving it to the vendor personally; or (b) by posting it by registered post to the vendor at the vendor's last known address (in which case the notice is taken to have been given when the notice is posted); or (c) by transmitting it by fax or email to a fax number or email address provided by the vendor to the purchaser for the purpose (in which case the notice is taken to have been given at the time of transmission); or (d) without limiting the foregoing, if an agent is authorised to act on behalf of the vendor— (i) by leaving it for the agent with a person apparently responsible to the agent at the agent's address for service; or (ii) by posting it by registered post to the agent at the agent's address for service, (in which case the notice is taken to have been given when the notice is left at or posted to that address). (3) If in any legal proceedings the question arises whether a notice has been given in accordance with this section, the onus of proving the giving of the notice lies on the purchaser. (4) If a contract is rescinded under this section, the purchaser is entitled to the return of money paid under the contract, but the vendor may retain money paid by the purchaser— (a) in consideration of an option to purchase the land or small business subject to the sale; or (b) by way of deposit in respect of the sale if the deposit does not exceed— (i) $100; or (ii) if a greater amount is fixed by regulation—that amount. (5) A vendor or stakeholder who, before the prescribed time, demands or requires the payment of money by a purchaser in respect of the sale of land or a small business other than— (a) money payable in consideration of an option to purchase the land or small business; or (b) a deposit— (i) in the case of the sale of land—of $100 or such greater amount as may be fixed by regulation; or (ii) in the case of the sale of a small business—of an amount not exceeding 10% of the total consideration for the sale specified in the contract, is guilty of an offence. (6) In proceedings for an offence against subsection (5), if it is proved that the defendant received money from the purchaser, it will be presumed, in the absence of proof to the contrary, that the defendant demanded or required the payment of that money. (7) This section does not apply in respect of a contract for the sale of land or a small business where— (a) in the case of a contract for the sale of land other than residential land, the purchaser is a body corporate; or (b) the purchaser has, before entering into the contract, received independent advice from a legal practitioner and the legal practitioner has signed a certificate in the form approved by regulation as to the giving of that advice; or (c) the sale is by auction; or (d) the land or business is offered for sale, but not sold, by auction and a person by whom, or on whose behalf, a bid for the land or business was made at the auction enters into the contract on the same day as the auction; or (e) the sale is by tender and the contract is made— (i) in the case of the sale of land—not less than five clear business days after the day fixed for the closing of tenders and not less than two clear business days after the vendor's statement is served on the purchaser; or (ii) in the case of the sale of a small business—not less than five clear business days after the day fixed for the closing of tenders and not less than five clear business days after the vendor's statement is served on the purchaser; or (f) the contract is made by the exercise by the purchaser of an option to purchase the land or business subject to the sale and the option is exercised— (i) in the case of the sale of land—not less than five clear business days after the grant of the option and not less than two clear business days after the vendor's statement is served on the purchaser; or (ii) in the case of the sale of a small business—not less than five clear business days after the grant of the option and not less than five clear business days after the vendor's statement is served on the purchaser; or (g) in the case of a contract for the sale of a small business (including any such contract that also provides for the sale of land), the vendor's statement has been served on the purchaser not less than five clear business days before the making of the contract; or (h) in the case of a contract for the sale of land, the contract provides also for the sale of a business that is not a small business. (8) In this section— agent's address for service of a notice means the address last notified to the Commissioner as the agent's address for service under the Land Agents Act 1994 or an address nominated by the agent to the purchaser for the purpose of service of the notice; prescribed time means— (a) in relation to the sale of land— (i) where the vendor's statement is served on the purchaser before the making of the contract—the end of the second clear business day after the day on which the contract was made; or (ii) where the vendor's statement is served on the purchaser after the making of the contract—the end of the second clear business day from the day on which the statement was served, or the time settlement takes place (whichever is the earlier); (b) in relation to the sale of a small business— (i) the end of the fifth clear business day after the day on which the vendor's statement is served on the purchaser; or (ii) the time settlement takes place, whichever is the earlier. 6—Abolition of instalment purchase or rental purchase arrangements (1) A contract for the sale of land or a business that provides for the payment of part of the purchase price of the land or business (except a deposit) before the date of settlement is void. (2) Money paid under a contract that is void under subsection (1) may be recovered by action in any court of competent jurisdiction. (2a) A contract under which a person has— (a) a right or obligation to purchase land; but (b) an obligation to pay rent in respect of a period of occupation of the land of more than 6 months before the right is exercised or the purchase completed, is voidable at any time at the option of that person. (2b) A person will not be taken to have elected to affirm a contract that is voidable under subsection (2a) by reason of a payment made under the contract. (2c) If a person avoids a contract that is voidable under subsection (2a), the person may, by action in any court of competent jurisdiction, recover any amount paid under the contract in excess of what would have been fair market rent for any period for which the person has occupied the land under the contract. (3) In this section— deposit means an amount paid by a purchaser in a lump sum, or in not more than three instalments, towards the purchase price of land or a business before the date of settlement; rent includes any amounts payable in respect of a right to occupy land. (4) This section does not apply in relation to— (a) a contract for the sale of land by the South Australian Housing Trust; and (b) a contract for the sale of land by a body specified by regulation. 7—Particulars to be supplied to purchaser of land before settlement (1) A vendor of land must, at least 10 clear days before the date of settlement, serve, or cause to be served, on the purchaser a statement in the form required by regulation (signed by the vendor) setting out— (a) the rights of a purchaser under section 5; and (b) the particulars required by regulation of— (i) all mortgages, charges and prescribed encumbrances affecting the land subject to the sale; and (ii) if the vendor acquired a relevant interest in the land within 12 months before the date of the contract of sale—all transactions relating to the acquisition of the interest occurring within that period; and (iii) any prescribed matters. (2) For the purposes of subsection (1)(b)(ii), where a person enters into a transaction for the purpose of obtaining title to land and an instrument of transfer, conveyance or other instrument relating to the transaction is lodged at the Land Titles Registration Office or the General Registry Office, the person will be taken to have obtained title to the land not later than the day on which the instrument of transfer, conveyance or other instrument is so lodged. (3) The statement need not include reference to charges arising from the imposition of rates or taxes less than 12 months before the date of service of the statement. (4) This section— (a) applies only to the sale of land where the interest being sold is an estate in fee simple or leasehold interest granted by the Crown under an Act; (b) does not apply where land is sold under a contract for the sale of a business. (5) In this section— acquired a relevant interest in the land means— (a) obtained title to the land; or (b) obtained an option to purchase the land; or (c) entered into a contract to purchase the land (whether on the vendor's own behalf or on behalf of another); or (d) obtained an interest in the land of a category prescribed by regulation for the purposes of this definition. 8—Particulars to be supplied to purchaser of small business before settlement (1) A vendor of a small business must, at least five clear business days before the date of settlement, serve, or cause to be served, on the purchaser a statement in the form required by regulation (signed by the vendor) setting out— (a) the rights of a purchaser under section 5; and (b) the prescribed particulars in relation to the business; and (c) where land is sold under the contract for sale of the business—the particulars that would be required in a vendor's statement under section 7 if the land were sold separately. (2) The statement must have endorsed on, or attached to, it a certificate in the form required by regulation (signed by or on behalf of a qualified accountant, not being the vendor) certifying— (a) that the accountant or a person acting on behalf of the accountant has examined the accounts of the business; and (b) that the financial particulars disclosed under subsection (1)(b) appear to be in conformity with the accounts. 9—Verification of vendor's statement (1) Where a vendor's statement is required to contain particulars in relation to land, and an agent acts on behalf of the vendor— (a) the agent must ensure that the prescribed inquiries are made into the matters as to which particulars are required in the statement; and (b) the agent must sign a certificate in the form required by regulation— (i) that the responses to the inquiries confirm the completeness and accuracy of the particulars contained in the statement; or (ii) that, subject to stated exceptions, the responses to the inquiries confirm the completeness and accuracy of those particulars; and (ba) the agent must ensure that a copy of the certificate is given to the vendor within 48 hours after the signing of the certificate; and (c) the vendor must ensure that the certificate is endorsed on, or attached to, the vendor's statement at the time of service on the purchaser. (2) Where a vendor's statement is required to contain particulars in relation to land and no agent acts on behalf of the vendor but an agent acts on behalf of the purchaser— (a) the agent must ensure that the prescribed inquiries are made into the matters as to which particulars are required in the statement; and (b) the agent must sign a certificate in the form required by regulation— (i) that the responses to the inquiries confirm the completeness and accuracy of the particulars contained in the statement; or (ii) that, subject to stated exceptions, the responses to the inquiries confirm the completeness and accuracy of those particulars; and (ba) the agent must ensure that a copy of the certificate is given to the vendor within 48 hours after the signing of the certificate; and (c) the agent must serve the certificate or cause it to be served on the purchaser— (i) when the vendor's statement is required under section 7—at least ten clear days before the date of settlement; (ii) when the vendor's statement is required under section 8—at least five clear business days before the date of settlement. 10—Variation of particulars (1) A vendor's statement must be accurate as at the date of service on the purchaser. (2) If after the service of a vendor's statement but before the purchaser signs the contract circumstances change so that if a fresh statement were to be prepared there would have to be some change in the particulars contained in the statement, then the vendor's statement will be regarded as defective until a notice of amendment is served and when such a notice is served it will be presumed that the vendor's statement was served, as amended by the notice, on the date of service of the notice. 11—Agent or auctioneer to make statements available before auction (1) If land or a small business is to be offered for sale by auction, the following provisions apply: (a) if an agent is acting on behalf of the vendor in the sale, the agent must ensure that— (i) the vendor's statement is available for perusal by members of the public— (A) at the office of the agent or auctioneer for at least 3 consecutive business days immediately preceding the auction; and (B) at the place at which the auction is to be conducted for at least 30 minutes immediately before the auction commences; and (ii) all reasonable steps are taken to give prospective purchasers notice of the times and places at which the vendor's statement may be inspected before the auction; (b) if no agent is acting on behalf of the vendor in the sale, the auctioneer must ensure that the vendor's statement is available for perusal by members of the public— (i) at the office of the auctioneer for at least 3 consecutive business days immediately preceding the auction; and (ii) at the place at which the auction is to be conducted for at least 30 minutes immediately before the auction commences. (2) An agent will be taken to have complied with subsection (1)(a)(ii) in relation to a prospective purchaser if the agent or a sales representative employed by the agent— (a) incorporates the notice with promotional material for the sale that the agent or sales representative delivers to the purchaser; or (b) offers to deliver the notice, or promotional material for the sale incorporating the notice, to the purchaser but the purchaser refuses to take it; or (c) publishes the notice in a prominent position— (i) in promotional material for the sale on the agent's website or in a newspaper circulating generally throughout the State or the area in which the land or business is situated; or (ii) on the signboard advertising the sale at the land or at the premises of the small business. 12—Councils, statutory authorities and prescribed bodies to provide information (1) A council must within eight clear business days after receiving a request for information under this section provide the applicant with information reasonably required as to— (a) any charge or prescribed encumbrance over land within the council's area of which the council has the benefit; or (b) insurance under Division 3 of Part 5 of the Building Work Contractors Act 1995, in relation to a building on land within the council's area. (2) A statutory authority or prescribed body must within eight clear business days after receiving a request for information under this section provide the applicant with information reasonably required as to— (a) any charge or prescribed encumbrance over land of which the statutory authority or prescribed body has the benefit; or (b) any other prescribed matter. (3) An application under this section must be accompanied by the fee fixed by regulation and any documents that are, in accordance with the regulations, to accompany the application. 13—False certificate A person who gives a certificate under this Part knowing it to be false in a material particular is guilty of an offence. Maximum penalty: $20 000 or imprisonment for 1 year. 13A—Prescribed notice to be given to purchaser (1) A vendor of residential land must take all reasonable steps to deliver the prescribed notice to a purchaser when the purchaser is present on the land at the invitation of the vendor in order to inspect the land prior to its sale. (2) A vendor of land will be taken to have complied with subsection (1) in relation to a purchaser who is present on the land if the vendor— (a) incorporates the prescribed notice with promotional material that the vendor delivers to the person; or (b) offers to deliver the notice, or promotional material incorporating the notice, to the person but the person refuses to take it; or (c) has delivered the notice, or promotional material incorporating the notice, to the person when the person has been present on the land on a previous occasion; or (d) in the case of an inspection that is open to the general public—displays the notice in a prominent position on the land and so as to indicate to persons inspecting the land that a copy of the notice may be taken by those persons. (3) A vendor of residential land must ensure that the prescribed notice is attached to a vendor's statement when the vendor's statement is served on a purchaser under this Part. (4) An auctioneer who proposes to offer residential land for sale by auction must ensure that the prescribed notice is attached to a vendor's statement when the vendor's statement is made available for perusal by members of the public before the auction. (5) If an agent is acting on behalf of a vendor of residential land in connection with sale of the land, this section applies as if the obligations imposed by this section on the vendor were instead imposed on the agent. (6) In this section— prescribed notice means a notice, in the form prescribed by regulation, containing information of the kind required by regulation relating to matters concerning land that might adversely affect— (a) a purchaser's enjoyment of the land; or (b) the safety of persons on the land; or (c) the value of the land. 14—Offence to contravene Part A person who contravenes or fails to comply with a provision of this Part other than section 13 (whether or not the contravention or non-compliance is declared to be an offence) is guilty of an offence. Maximum penalty: $10 000. 15—Remedies (1) Where a vendor's statement is not given or certified as required by this Part, or the statement given is defective, the purchaser may apply to a court of competent jurisdiction for an order under this section. (2) On the hearing of an application under subsection (1) the Court may, if satisfied that the purchaser has been prejudiced by the failure to comply with this Part, exercise any one or more of the following powers: (a) avoid the contract and make such other orders as the Court thinks necessary or desirable to restore the parties to the contract to their respective positions before entering into the contract; (b) award such damages as may, in the opinion of the Court, be necessary to compensate loss arising from the non-compliance; (c) make such other orders as may be just in the circumstances. (3) Damages may be awarded under subsection (2)(b) against— (a) the vendor; (b) if it appears that the purchaser has been prejudiced by a failure on the part of an agent to carry out duties imposed by this Part—the agent, or both. 16—Defences It is a defence to a charge of an offence, or to civil proceedings, under this Part arising from an alleged contravention or non-compliance with a requirement of this Part if the defendant proves— (a) that the alleged contravention or non-compliance was unintentional and did not occur by reason of the defendant's negligence or the negligence of an officer, employee or agent of the defendant; or (b) that the alleged contravention or non-compliance was due to reliance on information provided by a person or body to which an inquiry to obtain the information is, in accordance with the regulations, required to be made; or (c) that— (i) the purchaser received independent advice from a legal practitioner in relation to waiving compliance with that requirement; and (ii) the legal practitioner signed a certificate in the form required by regulation as to the giving of that advice; and (iii) the purchaser waived compliance with that requirement by signing an instrument of waiver in the form required by regulation. 17—Service of vendor's statement etc A vendor's statement, a notice of amendment to a vendor's statement or a certificate of an agent acting on behalf of a purchaser may be served on a purchaser— (a) by delivering it to the person personally; or (b) by posting it by registered post to the person at the person's last known address. Part 3—Subdivided land 18—Obligations and offences in relation to subdivided land (1) A person who, in order to induce another person (the prospective purchaser) to purchase subdivided land states— (a) that the person or some other person will buy at a profit to be received by the prospective purchaser other land or a chattel then owned by the prospective purchaser; or (b) that the person or some other person will at some future time obtain for the prospective purchaser a profit on the subdivided land or part of it, is guilty of an offence. Maximum penalty: $5 000 or imprisonment for 1 year. (2) A contract for the sale of subdivided land or an interest in subdivided land is (except where the sale is by public auction) voidable at the option of the purchaser at any time within six months after the making of the contract unless the contract— (a) is in writing; and (b) contains the following particulars: (i) the name, address and description of the vendor; (ii) the name, address and description of the person who is, at the time when the contract is made, the owner of the land or interest; (iii) the allotment number of the land and the name (if any) of the subdivision, or other information sufficient to enable the land to be readily identified; (iv) the name, address and description of some person to whom all money falling due under the contract may be paid towards satisfaction of the contractual liability. (3) A purchaser will not be taken to have elected to affirm a contract that is voidable under this section by reason of a payment made under the contract. (4) Where a contract that is voidable under this section is avoided, the purchaser may recover the money paid under the contract. 19—Inducement to buy subdivided land If a person is induced— (a) to enter into a contract to purchase subdivided land; or (b) to affirm a contract to purchase subdivided land that is voidable by that person, by unreasonable or undue persuasion on the part of the vendor, or a person appearing to act on behalf of the vendor, then, according to the nature of the case— (c) the contract will be taken to have been induced by undue influence and will be voidable at the option of the person induced to enter it; or (d) the affirmation will be void and of no effect. Part 4—Special requirements relating to agents and sales representatives 20—Authority to act as agent (1) An agent must not act on behalf of a vendor in the sale of residential land unless the agent has been authorised to so act by an agreement (a sales agency agreement) that— (a) specifies the agent's genuine estimate of the selling price expressed without any qualifying words or symbols as a single figure; and (b) specifies the selling price sought by, or acceptable to, the vendor expressed without any qualifying words or symbols as a single figure; and (c) specifies— (i) the manner of sale (for example, by auction, private treaty or tender); and (ii) the duration of the agreement (not exceeding the prescribed number of days); and (iii) the rights of the vendor to terminate the agreement; and (iv) the services, including advertising and marketing, to be provided for the vendor by the agent or a third person that will be separately charged for by the agent, the amounts to be charged for the services and the time for payment of the amounts; and (v) the nature and source and, if known, the amount or value of any rebate, discount, refund or other benefit expected to be received by the agent from a third person in relation to services referred to in subparagraph (iv); and (vi) whether the agreement is a sole agency agreement; and (vii) whether the agent has authority to accept an offer for the land on behalf of the vendor; and (d) is dated and signed by the vendor and the agent; and (e) complies with the regulations. Maximum penalty: $5 000. (2) An agent must not make a sales agency agreement unless the agent has first given the vendor— (a) a written guide, in a form approved by the Commissioner for the purposes of this section, that explains the vendor's rights and obligations under such an agreement; and (b) details of sales of comparable land and any other information on which the agent will rely in support of his or her estimate of the selling price. Maximum penalty: $5 000. Expiation fee: $315. (3) An agent must not act on behalf of— (a) a vendor in the sale of land (other than residential land) or a business; or (b) a purchaser in the sale of land or a business, unless the agent has been authorised to so act by instrument in writing signed by the vendor or the purchaser. Maximum penalty: $5 000. (4) An agent who has been authorised to act on behalf of a vendor or purchaser under this section must ensure that the vendor or purchaser is given a copy of the signed agreement or instrument immediately, or at a later time within 48 hours as agreed with the vendor or purchaser, after the agreement or instrument has been signed by the vendor or purchaser and delivered to the agent. Maximum penalty: $5 000. Expiation fee: $315. (5) Subject to subsection (5a), the matters specified or agreed in a sales agency agreement may be varied provided that the variation is in writing and dated and signed by the parties to the agreement. (5a) A sales agency agreement for the sale of residential land by auction may not be varied by increasing the amount specified in the agreement as the selling price sought by, or acceptable to, the vendor. (6) An agent who has been authorised to act on behalf of a vendor or purchaser under this section must ensure that a copy of any variation of the sales agency agreement or instrument is given to the vendor or purchaser immediately, or at a later time within 48 hours as agreed with the vendor or purchaser, after the variation has been signed by the vendor or purchaser and delivered to the agent. Maximum penalty: $5 000. Expiation fee: $315. (6a) If, in relation to a sales agency agreement, a notice of expiry is given in the prescribed manner to the vendor by the agent who has been authorised to act on behalf of the vendor under the agreement— (a) the vendor may, by notice given to the agent before the date on which the agreement is due to expire, indicate his or her intention not to extend the agreement, in which case the agreement terminates on that date; or (b) if notice is not given under paragraph (a), the following provisions apply, subject to subsection (6b): (i) the agreement may be extended— (A) by agreement between the parties recorded in writing and dated and signed by the parties no earlier than 14 days before the agreement is due to expire; and (B) for a period not exceeding the number of days prescribed by regulation; (ii) if the agreement is not extended under subparagraph (i), it is taken to have been extended by force of this paragraph for the period prescribed by regulation from the time at which it would otherwise have expired. (6b) A sales agency agreement cannot be extended more than once. (6c) If a notice of expiry is not given by an agent to a vendor in accordance with subsection (6a), the sales agency agreement terminates on the date on which it is due to expire and cannot be extended. (6d) An agent who has been authorised to act on behalf of a vendor under this section must ensure that a copy of the record of any extension of the sales agency agreement under subsection (6a)(b)(i) is given to the vendor immediately, or at a later time within 48 hours as agreed with the vendor, after it has been signed by the vendor and delivered to the agent. Maximum penalty: $5 000. Expiation fee: $315. (6e) A vendor may, by notice in writing given to the agent at any time during a period of extension of a sales agency agreement, terminate the agreement without specifying any grounds. (6f) If a sales agency agreement between a vendor and an agent for the sale of residential land by auction is terminated before its expiry or is varied by reducing the duration of the agreement, the agent must not make a new sales agency agreement with the vendor for the sale by auction of the same land specifying, as the selling price sought by, or acceptable to, the vendor, an amount that is greater than that specified in the agreement before its termination or variation unless the period specified as the duration of the agreement before its termination or variation has elapsed. Maximum penalty: $5 000. (7) An agent must not demand, receive or retain commission or expenses in respect of the sale or purchase of land or a business if the agent has contravened or failed to comply with a requirement of this section in acting on behalf of the vendor or purchaser. Maximum penalty: $5 000. (8) Commission or expenses received or retained by an agent in contravention of this section may be recovered, as a debt, from the agent by the person by whom it was paid. (9) An agent must keep a copy of— (a) each sales agency agreement, and any variation or extension of the sales agency agreement, to which the agent has become party; and (b) each instrument by which the agent has been authorised to act on behalf of a vendor or purchaser as referred to in subsection (3). (10) For the purposes of this section, a notice of expiry, in relation to a sales agency agreement, will be taken to have been given to the vendor in the prescribed manner if it is given to the vendor no earlier than 14 days before the agreement is due to expire. (11) In this section— notice of expiry, in relation to a sales agency agreement, means a notice in writing— (a) reminding the vendor of the date on which the agreement is due to expire and the vendor's rights to terminate the agreement; and (b) setting out the vendor's rights to extend the agreement and the effect of subsections (6a), (6b), (6d) and (6e). 21—Requirements relating to offers to purchase residential land (1) If a person communicates to an agent an offer for residential land that the agent is authorised to sell on behalf of a vendor, the agent must ensure that the following requirements are satisfied: (a) all reasonable steps must be taken to have the offer recorded in writing, in a form containing the details required by the regulations, and signed by the offeror; (b) subject to subsection (5), the offer must not be passed on to the vendor unless it is so recorded and signed; (c) the offeror must, if the regulations so require, be given a notice in writing containing the information prescribed by the regulations before signing the offer; (d) a copy of the signed offer must be given to the vendor within 48 hours or at a later time agreed with the vendor; (e) details of the offer must not be disclosed to a person other than the vendor or, on request, an authorised officer; (f) a copy of the signed offer must be kept by the agent. Maximum penalty: $5 000. Expiation fee: $315. (2) If a person communicates to a sales representative employed by an agent an offer for residential land that the agent is authorised to sell on behalf of a vendor, the sales representative— (a) must take all reasonable steps to have the offer recorded in writing, in a form containing the details required by the regulations, and signed by the offeror; and (b) subject to subsection (5), must not pass the offer on to the vendor unless it is so recorded and signed; and (c) must, if the regulations so require, give the offeror a notice in writing containing the information prescribed by the regulations before the offeror signs the offer; and (d) must give a copy of the signed offer to the vendor within 48 hours or at a later time agreed with the vendor; and (e) must not disclose any details of the offer to a person other than the vendor or, on request, an authorised officer; and (f) must enable a copy of the signed offer to be kept as part of the agent's records. Maximum penalty: $5 000. Expiation fee: $315. (2a) Despite subsections (1)(e) and (2)(e), an agent (or a sales representative employed by the agent) may disclose to a purchaser the fact that an offer has been made if the following requirements are satisfied: (a) the amount of the offer and any terms or conditions of the offer must not, at any time before the sale, be disclosed to the purchaser; (b) a notice in writing confirming the fact that the offer was made must be provided, on request, to the purchaser; (c) a copy of the notice must be kept as part of the agent's records. (2b) An agent (or a sales representative employed by the agent) who, in making a disclosure of a kind referred to in subsection (2a), contravenes or fails to comply with a requirement specified in that subsection is guilty of an offence. Maximum penalty: $5 000. Expiation fee: $315. (3) Nothing in this section prevents details of an offer received by an agent (or a sales representative employed by the agent) from being communicated between persons engaged in the business of the agent as reasonably required for the purposes of the business. (4) The vendor must, at the request of an agent or sales representative, as soon as practicable after receiving a copy of a signed offer, give the agent a notice in writing acknowledging its receipt. Maximum penalty: $1 250. (5) An agent authorised to sell residential land on behalf of a vendor, and any sales representative employed by the agent, must, before taking any step on behalf of the vendor directed towards acceptance of an offer for the land— (a) ensure that the vendor has been given copies of all written offers for the land that have been received by the agent; and (b) if a person has communicated to the agent or sales representative an offer for the land and there has been insufficient time to have the offer recorded in writing in accordance with subsection (1) or (2), ensure that the vendor has notice of the proposed offer. Maximum penalty: $5 000. (6) This section applies with modifications prescribed by the regulations in a case where the agent has authority to accept an offer for the land on behalf of the vendor. (7) A contravention of this section does not affect the validity of an offer or a contract for the sale of the land. 22—Person signing document to be given copy (1) If a person signs an offer, contract or agreement, or a document intended to constitute an offer, contract or agreement, relating to a transaction that has been negotiated wholly or in part by an agent, the agent must ensure that the person is given a copy of the signed offer, contract, agreement or document immediately after the document has been signed by the person and delivered to the agent. Maximum penalty: $5 000. Expiation fee: $315. (2) If a person signs an offer, contract or agreement, or a document intended to constitute an offer, contract or agreement, relating to a transaction that has been negotiated wholly or in part by a sales representative, the sales representative must give the person a copy of the signed offer, contract, agreement or document immediately after the document has been signed by the person and delivered to the sales representative. Maximum penalty: $5 000. Expiation fee: $315. 23—Agent not to receive commission if contract avoided or rescinded (1) An agent must not demand, receive or retain commission in respect of the sale or purchase of land or a business if the contract by which the transaction is to be effected is rescinded or avoided under this Act. Maximum penalty: $5 000. (2) Subsection (1) does not apply if— (a) the contract is rescinded under Part 2; and (b) the parties to the contract subsequently enter into another contract for the sale or purchase of the land or business; and (c) commission would, apart from this section, have been payable to the agent in respect of the subsequent contract. (3) Commission received or retained by an agent in contravention of this section may be recovered, as a debt, from the agent by the person by whom it was paid. 24—Agent not to lodge caveat for sums owing by client An agent who has been authorised to act on behalf of a vendor in the sale of residential land must not lodge a caveat over the land in order to secure payment of a debt owing to the agent by the vendor in connection with the sale of the land. Maximum penalty: $5 000. 24A—Representations as to likely selling price in marketing residential land (1) For the purposes of this section— (a) a representation is made in marketing land if— (i) it is made in an advertisement for the sale of the land that is published, or caused to be published, by the agent; or (ii) it is made (whether orally or in writing) to a purchaser who has not commenced negotiations for the purchase of the land; and (b) information in an advertisement is a representation as to a likely price or likely price range for the sale of land if it could be reasonably taken to be such; and (c) a statement as to the price actually sought by, or acceptable to, the vendor of land is not a representation as to a likely price for the sale of the land provided that the amount stated as the price is the same as the selling price sought by, or acceptable to, the vendor as expressed in the sales agency agreement at the time of the statement; and (d) prescribed minimum advertising price, in relation to a representation, is the amount that is the greater of— (i) the agent's estimate of the selling price as expressed in the sales agency agreement at the time of the representation; or (ii) the selling price sought by, or acceptable to, the vendor as expressed in the sales agency agreement at the time of the representation. (2) In marketing residential land that an agent is authorised to sell on behalf of a vendor, the agent or a sales representative employed by the agent must comply with the following: (a) if the agent or sales representative makes a representation as to a likely price for the land— (i) the price must be expressed as a single figure without any qualifying words or symbols; and (ii) the price must not be less than the prescribed minimum advertising price; (b) if the agent or sales representative makes a representation as to a likely price range for the land— (i) the price range must be expressed using 2 single figures in combination only with such words or symbols as are necessary to denote a range1 with the first figure constituting the lower limit of the range and the second figure constituting the upper limit of the range; and (ii) the lower limit of the range must not be less than the prescribed minimum advertising price; and (iii) the upper limit of the range must not exceed 110% of the lower limit of the range. Note— 1 For example, "between $340 000 and $360 000", "from $340 000 to $360 000" or "$340 000 - $360 000". Maximum penalty: $20 000 or imprisonment for 1 year. (3) An agent must not demand, receive or retain commission or expenses in respect of the sale of land if the agent or a sales representative employed by the agent has failed to comply with a requirement of subsection (2) in marketing the land on behalf of the vendor. Maximum penalty: $5 000. (4) Commission or expenses received or retained by an agent in contravention of this section may be recovered, as a debt, from the agent by the person by whom it was paid. 24B—Financial and investment advice (1) The regulations may make provision for or with respect to requiring an agent or sales representative who provides financial or investment advice to a person in connection with the sale or purchase of land or a business to provide to the person specified information or warnings. (2) An agent or sales representative who fails to comply with a requirement of the regulations under this section is guilty of an offence. Maximum penalty: $10 000. 24C—Agent to disclose certain benefits connected with sale or purchase (1) This section applies in relation to the sale or purchase of land or a business. (2) An agent must disclose to the client in such manner as may be prescribed by the regulations— (a) the nature, source and amount (or estimated amount or value) of any benefit the agent receives or expects to receive from a third person to whom the agent has referred the client, or with whom the agent has contracted, for the provision of services associated with the sale or purchase; and (b) the nature, source and amount (or estimated amount or value) of any other benefit any person receives or expects to receive in connection with the sale or purchase. Maximum penalty: $20 000. (3) This section does not require an agent to make a disclosure of— (a) a benefit disclosed in a sales agency agreement with the client; or (b) a benefit received or expected to be received by the agent from the client; or (c) a benefit received or expected to be received by the vendor or purchaser; or (d) a benefit related to the provision of services to the client that have been contracted for by the agent unless the agent has made, or is to make, a separate charge to the client in respect of the cost of the services; or (e) a benefit while the agent remains unaware of the benefit (but in any proceedings against the agent, the burden will lie on the agent to prove that the agent was not, at the material time, aware of the benefit); or (f) a benefit that the agent or another person receives if the agent has disclosed, in accordance with this section, that the agent or other person expected to receive the benefit. (4) For the purposes of this section— (a) the value of a non-monetary benefit is to be determined on the basis of a reasonable estimate in dollars of the value of the benefit to the agent; and (b) if an agent receives a benefit in relation to multiple transactions (whether involving the same or different clients of the agent), the amount or value of the benefit in respect of any 1 of the transactions is to be determined by apportionment between the transactions according to the proportions that the amounts charged to the client or clients in respect of each transaction for the services provided by the third person bear to each other. (5) In this section— agent means a purchaser's or vendor's agent; benefit includes a rebate, discount and refund; client means the person for whom the agent is or has been acting; purchaser's agent means— (a) an agent who is or has been authorised to act on behalf of a purchaser in the purchase of land or a business; or (b) a sales representative who is or has been acting for that agent; vendor's agent means— (a) an agent who is or has been authorised to act on behalf of a vendor in the sale of land or a business; or (b) a sales representative who is or has been acting for that agent. 24D—Agent not to retain benefits in respect of services associated with sale or purchase of residential land (1) This section applies in relation to the sale or purchase of residential land. (2) An agent must not seek to obtain from the client an amount for expenses that is more than the amount paid or payable for those expenses by the agent. Maximum penalty: $20 000. (3) In determining the amount paid or payable by the agent for expenses, the amount or value of any benefit received or receivable by the agent in respect of the expenses (other than a benefit that is contingent on the happening of an event that has not yet occurred) must be taken into account. (4) If it is not reasonably possible to determine the amount paid or payable by the agent at the time the agent seeks payment for those expenses from the client, the agent may make an estimate of the amount. (5) If the client has paid the agent an amount for expenses based on an estimate under subsection (4) and the agent becomes aware that the amount exceeds the actual amount paid or payable for the expenses by the agent, the agent must immediately pay the client the amount of the excess. Maximum penalty: $20 000. (6) If— (a) an agent— (i) refers the client to a third person for the provision of services associated with the sale or purchase of the residential land; or (ii) contracts with a third person for the provision of services associated with the sale or purchase of the residential land that will be separately charged for by the agent; and (b) the agent receives a benefit from the third person as a result of referring the client to the third person or contracting with the third person, the agent must immediately pay the amount or value of the benefit to the client, except to the extent that the agent has accounted for or paid the amount or value of the benefit in accordance with the preceding provisions of this section. Maximum penalty: $20 000. (7) If an agent fails to pay an amount as required under subsection (5) or (6), the client may recover the amount as a debt due to the person by the agent. (8) This section does not apply in relation to a benefit disclosed— (a) in a sales agency agreement with the client; or (b) to the client in accordance with section 24C. (9) For the purposes of this section— (a) the value of a non-monetary benefit is to be determined on the basis of a reasonable estimate in dollars of the value of the benefit to the agent; and (b) if an agent receives a benefit in relation to multiple transactions (whether involving the same or different clients of the agent), the amount or value of the benefit in respect of any 1 of the transactions is to be determined by apportionment between the transactions according to the proportions that the amounts charged to the client or clients in respect of each transaction for the services provided by the third person bear to each other. (10) In this section— agent means a purchaser's or vendor's agent; benefit includes a rebate, discount and refund; client means the person for whom the agent is or has been acting; expenses means outgoings or proposed outgoings; purchaser's agent means— (a) an agent who is or has been authorised to act on behalf of a purchaser in the purchase of the residential land; or (b) a sales representative who is or has been acting for that agent; vendor's agent means— (a) an agent who is or has been authorised to act on behalf of a vendor in the sale of the residential land; or (b) a sales representative who is or has been acting for that agent. 24E—Agent to supply valuation in prescribed circumstances (1) An agent who is authorised to sell land or a business on behalf of a person (the vendor) must, if the prescribed circumstances apply, before negotiating the sale of the land or business— (a) arrange a formal written valuation of the land or business, at the agent's own expense, by a person authorised to carry on business as a land valuer under the Land Valuers Act 1994 and approved by the Commissioner; and (b) furnish the vendor with a copy of the land valuer's valuation report. Maximum penalty: $20 000. (2) Before regulations are made for the purposes of subsection (1), the Minister must consult with the The Real Estate Institute of South Australia Incorporated. (3) In this section— prescribed circumstances means circumstances of a kind prescribed by the regulations in which the agent has a conflict of interest or potential conflict of interest. 24F—Agent not to act for both purchaser and vendor of land or business (1) A person must not act as an agent on behalf of both the vendor and purchaser of the same land or business at the same time. Maximum penalty: $20 000. (2) A person must not enter into agreements to act as an agent in the sale or purchase of land or a business if the performance of services by the person under the agreements will or can result in the person acting as an agent on behalf of both the vendor and the purchaser of the same land or business at the same time. Maximum penalty: $20 000. (3) For the purposes of this section, without limiting the circumstances in which a person acts as an agent on behalf of both the vendor and purchaser of the same land or business at the same time, a person will be taken to so act if— (a) the sale of land or a business is negotiated by the agent on behalf of a person; and (b) the purchase of the land or business is made subject to the sale of some other land or business by the purchaser; and (c) the agent acts on behalf of the purchaser in the sale of the other land or business. (4) Despite the preceding provisions of this section, an agent may act on behalf of the purchaser in the circumstances referred to in subsection (3) if, before the purchaser authorises the agent to do so— (a) the agent gives the purchaser a warning notice in the form approved by the Commissioner for the purposes of this section; and (b) its receipt is acknowledged by the purchaser in writing on a copy of the form. 24G—Restriction on obtaining beneficial interest in selling or appraising property (1) An agent who is authorised by a person (the vendor) to sell land or a business must not obtain, or be in any way concerned in obtaining, a beneficial interest in the land or business. Maximum penalty: (a) in the case of an aggravated offence—$100 000 or imprisonment for 2 years; (b) in any other case—$50 000 or imprisonment for 1 year. (2) A sales representative employed by an agent must not obtain, or be in any way concerned in obtaining, a beneficial interest in land or a business that the agent is authorised to sell for a person (the vendor). Maximum penalty: (a) in the case of an aggravated offence—$100 000 or imprisonment for 2 years; (b) in any other case—$50 000 or imprisonment for 1 year. (2a) If an agent is authorised by a person (the vendor) to sell land or a business, the following persons must not obtain, or be in any way concerned in obtaining, a beneficial interest in the land or business: (a) a natural person who is responsible for managing or supervising the agent's business (including, but not limited to, a natural person referred to in section 10 of the Land Agents Act 1994, in relation to that business); (b) a natural person who is responsible for managing or supervising 1 or more places of business of the agent at which any of the negotiations, administration or other functions relating to the sale are conducted by employees of the agent or persons otherwise engaged by the agent (including, but not limited to, a natural person referred to in section 11 of the Land Agents Act 1994, in relation to that place of business); (c) in the case of an agent that is a body corporate—a director of the body corporate (within the meaning of the Land Agents Act 1994). Maximum penalty: (a) in the case of an aggravated offence—$100 000 or imprisonment for 2 years; (b) in any other case—$50 000 or imprisonment for 1 year. (3) An agent or sales representative who appraises land or a business for a person (the vendor) must not obtain, or be in any way concerned in obtaining, a beneficial interest in the land or business. Maximum penalty: (a) in the case of an aggravated offence—$100 000 or imprisonment for 2 years; (b) in any other case—$50 000 or imprisonment for 1 year. (4) Subject to subsection (10a), a person does not contravene subsection (3) by obtaining a beneficial interest in land or a business if an agent is acting on behalf of the vendor in the sale of the land or business. (5) A person does not contravene this section by obtaining a beneficial interest in land or a business if, before the person obtains the interest, the Commissioner approves such action in accordance with the regulations. (6) Without limiting this section, a person (being an agent, sales representative, natural person, or director of a body corporate, to whom a preceding subsection applies) is considered to obtain a beneficial interest in land or a business if the person or an associate of the person obtains a beneficial interest in the land or business. (7) Without limiting this section, each of the following is considered to constitute the obtaining of a beneficial interest in land or a business: (a) purchasing land or a business; (b) obtaining an option to purchase land or a business; (c) being granted a general power of appointment in respect of land or a business. (8) The court by which a person is convicted of an offence against this section may order the person to pay to the vendor any profit that the person has made, or is, in the opinion of the court, likely to make, from a dealing with the land or business to which the offence relates. (9) If an agent obtains a beneficial interest in land or a business that the agent is authorised to sell, the agent must not demand, receive or retain commission or expenses in respect of the sale or purchase of the land or business unless— (a) the Commissioner has approved the agent obtaining the benefit under subsection (5); and (b) the Commissioner has, when giving that approval, also approved the receipt of the commission or expenses. Maximum penalty: (a) in the case of an aggravated offence—$20 000; (b) in any other case—$10 000. (10) Commission or expenses received or retained by an agent in contravention of this section may be recovered, as a debt, from the agent by the person by whom it was paid. (10a) In t