Tasmania: Property Agents and Land Transactions Act 2016 (Tas)

Property Agents and Land Transactions Act 2016 An Act to regulate certain auction and real estate practices, to regulate property agents and to repeal the Property Agents and Land Transactions Act 2005 [Royal Assent 21 December 2016] Be it enacted by Her 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 2016 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed. 3. Interpretation (1) In this Act, unless the contrary intention appears – approved form means a form approved by the Board; approved institution – see section 147(2) ; auditor 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 Institute of Public Accountants in Australia; 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(1) 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 continued under section 5 ; 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; Code of Conduct or "Code" means the Code of Conduct referred to in section 84 ; company means a body corporate wherever incorporated; conveyancer has the same meaning as in the Conveyancing Act 2004 ; deemed registration means an entitlement to automatic deemed registration, within the meaning of the Mutual Recognition Act 1992 of the Commonwealth; 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 (g) any part of such a copy, reproduction or duplicate; employ includes engage under a contract for services; functions of a property representative includes all or any of the following functions performed by a person while in the employ of a real estate agent or property manager: (a) inducing or attempting to induce, or negotiating with a view to inducing, people to do all or any of the following: (i) acquire or dispose of property or a business; (ii) make an offer to acquire or dispose of property; (iii) make an offer to acquire or dispose of a business; (iv) enter into a contract for the acquisition or disposal of property; (v) enter into a contract for the acquisition or disposal of a business; (b) negotiating the leasing or letting of property; (c) collecting rents for property that is leased or let; (d) managing property that is leased or let; general auctioneer means a person who holds a valid general auctioneer licence; general auctioneering business means business as an auctioneer where the property auctioned does not include land; general auctioneer licence means – (a) a type of licence referred to in section 15(c) that is issued and in force in accordance with section 19(1)(a) ; or (b) a general auctioneer licence held by a person by virtue of holding deemed registration; Guarantee Fund or Fund means the fund as continued in existence by section 149 under the name Property Agents Guarantee Fund; legal practitioner means an Australian legal practitioner; licence means – (a) a licence issued and in force under this Act; and (b) a licence held by a person by virtue of holding deemed registration; licence holder means a person who holds a licence; 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(1) 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; Panel means the Panel referred to in section 104(3) ; 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, or a property representative; property agent licence means – (a) a real estate agent licence; and (b) a property manager licence; and (c) a general auctioneer licence; and (d) a property representative licence; property agents industry means the business carried on by property agents; property management business means the carrying out of 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 who holds a valid property manager licence; property manager licence means – (a) a type of licence referred to in section 15(b) that is issued and in force in accordance with section 19(1)(a) ; or (b) a property manager licence held by a person by virtue of holding deemed registration; property representative or representative means a person who holds a valid property representative licence; property representative licence means – (a) a type of licence referred to in section 15(d) that is issued and in force in accordance with section 19(1)(a) ; or (b) a property representative licence held by a person by virtue of holding deemed registration; public auction means an auction that has been publicly advertised; publish means publish by any means including by publication on the internet; real estate agency business means the carrying out of 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; (d) managing property that is leased or let; real estate agent or agent means a person who holds a valid real estate agent licence; real estate agent licence means – (a) a type of licence referred to in section 15(a) that is issued and in force in accordance with section 19(1)(a) ; and (b) a real estate agent licence held by a person by virtue of holding deemed registration; region means the northern region, the north-western region or the southern region; Register means the Register of Property Agents maintained by the Board under section 29 ; 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; Rental Deposit Authority means the Rental Deposit Authority established under section 48K of the Residential Tenancy Act 1997 ; repealed Act means the Property Agents and Land Transactions Act 2005 ; Residential Tenancy Commissioner means the person appointed under section 7 of the Residential Tenancy Act 1997 ; sale means a disposition of property for valuable consideration; scheme of arrangement means a scheme of arrangement referred to in section 147 ; statutory authority means a body or authority, whether incorporated or not, that is established or constituted by or under an Act or under the royal prerogative, being a body or authority which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another statutory authority, but does not include an Agency, within the meaning of the State Service Act 2000 ; Tribunal means a Tribunal established in accordance with section 104 ; Trust means the trust as continued in existence by section 141 under the name Property Agents Trust; trust account – see section 134 ; trust money – see section 133 . (2) In this Act – (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 1(2) of the Register is a reference to Division (2) of Part 1 of the Register; and (c) a reference to Part 2(1) of the Register is a reference to Division (1) of Part 2 of the Register; and (d) a reference to Part 2(2) of the Register is a reference to Division (2) of Part 2 of the Register; and (e) a reference to Part 3(1) of the Register is a reference to Division (1) of Part 3 of the Register; and (f) a reference to Part 3(2) of the Register is a reference to Division (2) of Part 3 of the Register. 4. Application of Act (1) In this section – 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 Institute of Public Accountants in Australia. (2) This Act does not bind the Crown. (3) Nothing in this Act prohibits the following persons from carrying out an activity that is part of a real estate agency business or property management business: (a) a liquidator or receiver; (b) a person who is subject to a guardianship order under the Guardianship and Administration Act 1995 or an assessment order or treatment order under the Mental Health Act 2013 ; (c) a trustee company within the meaning of the Trustee Companies Act 1953 ; (d) a legal practitioner – if that person is performing functions in that capacity. (4) An accountant need not be licensed to carry out an activity that is part of a real estate agency business if the activity does not include the sale, management, letting or lease of land. PART 2 - Property Agents Board Division 1 - The Board 5. Property Agents Board continued (1) The Property Agents Board established under section 70 of the repealed Act continues in existence for the purposes of this Act. (2) The Board consists of the following persons appointed by the Governor: (a) an Australian lawyer, nominated by the Minister, of at least 5 years' standing as an Australian legal practitioner and who has legal experience in areas of law relevant to the position, who is to be the Chair of the Board; (b) a property agent, nominated by the body that the Minister is satisfied represents the views of the majority of property agents, who has at least 5 years' experience as a property agent; (c) a property agent, nominated by the Minister, who has at least 5 years' experience as a property agent; (d) 2 persons, nominated by the Minister, who are not property agents. (3) 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. (4) 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. (5) Schedule 1 has effect with respect to the membership and meetings of the Board. 6. Functions of Board (1) The Board has the following functions: (a) to administer the licensing system for property agents established by this Act; (b) to maintain the Register; (c) to ensure that property agents comply with the requirements of this Act relating to their conduct in carrying on their businesses or in performing their functions and, where they fail to do so, to take appropriate action, including disciplinary action, to protect the public and to discourage such conduct; (d) to ensure that people do not act as property agents unless they are permitted to do so under this Act; (e) to develop and ensure compliance with a Code of Conduct for property agents; (f) to receive, investigate and determine complaints against property agents; (g) to provide support in the resolution of disputes relating to the conduct of property agents; (h) to supervise the trust accounts of property agents; (i) to advise property agents on appropriate standards of conduct; (j) to monitor, identify and report to the Minister trends and issues that emerge within the property agents industry; (k) to perform educational functions for the purposes of this Act; (l) 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; (m) to perform any other function imposed on the Board by this or any other Act; (n) such other functions as may be prescribed. (2) The function mentioned in subsection (1)(f) includes – (a) referring complaints in respect of a serious offence, within the meaning of Part 7 , 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)(k) 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 (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. 7. Powers of Board (1) The Board has power to do all things necessary or convenient to be done in connection with the performance of its functions. (2) This power includes the power to impose 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. (4) The Board may waive, remit or refund part or all of a fee or charge payable to the Board under this Act. 8. Delegation by Board The Board may, by instrument in writing, delegate any of its functions or powers under this or any other Act other than this power of delegation and the power to discipline property agents. 9. Contracts The Board may enter into a contract with any person for the performance or exercise by that person of any of the Board's functions or powers under this Act or any other Act other than the power to discipline property agents. 10. Committees of Board (1) The Board may establish such committees as it considers necessary for the purpose of assisting it in the performance of any of its functions or the exercise of any of its powers. (2) A committee consists of such persons as the Board appoints. (3) A member of the Board may be a member of a committee. (4) Subject to subsection (5) , the Board may pay a member of a committee remuneration and allowances. (5) 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 (4) unless the Minister administering the State Service Act 2000 determines otherwise. (6) The Board may give written directions to a committee and the committee must comply with those directions. (7) A committee is to keep accurate minutes of its proceedings. (8) A committee is to regulate its proceedings in accordance with any directions given by the Board but may otherwise regulate its own proceedings. 11. Employees of Board (1) The Board is to employ a suitably qualified person to be the executive officer of the Board and may employ such other persons as it considers necessary. (2) The executive officer is to act as the secretary to the Board. (3) The State Service Act 2000 does not apply to a person employed by the Board. Division 2 - Finances and reports 12. 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. (2) The Board is to use any money received by it to perform 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. 13. Accounts and audit (1) The Board is to keep proper accounts and records of its financial transactions and, as soon as practicable after 1 July and not later than 31 October in each year, is to prepare financial statements exhibiting a true and correct record of its financial position and transactions in respect of the preceding financial year. (2) The accounts of the Board kept for the purposes of this Act are subject to the Financial Management Act 2016 . 14. Annual report (1) The Board is to, on or before 31 October after the end of each financial year, prepare and present to the Minister a report on its operations for that 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 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 receiving it from the Board. PART 3 - Licensing of Property Agents Division 1 - Types of property agent licence 15. Types of licences The Board may issue the following types of licence under section 19(1)(a) : (a) a real estate agent licence; (b) a property manager licence; (c) a general auctioneer licence; (d) a property representative licence. Division 2 - Application for licence 16. Application for licence (1) Subject to subsection (3) , a person may apply to the Board for a licence. (2) An application is to be in an approved form and accompanied by – (a) any prescribed fee; and (b) a statement relating to the applicant's record of offences in Tasmania issued by the Commissioner of Police; and (c) a statement relating to the applicant's record of offences in any other place issued by a person holding an office in another State or a Territory that corresponds to the office of Commissioner of Police in this State; and (d) any consent by any person to the disclosure of information as the Board considers relevant for the purposes of investigating the application; and (e) any other documents and information the Board requires. (3) A person who holds a licence by virtue of holding deemed registration is not required to make an application under this section for a licence. 17. Consideration of application The Board may make such inquiries regarding an application for a licence as the Board considers necessary or expedient for a proper consideration of the application. 18. Suitability of applicant (1) The Board must not grant an application for a licence unless satisfied that the applicant – (a) has the relevant qualifications specified in Division 3 to be licensed; and (b) is a fit and proper person to hold a property agent licence. (2) The Board may request an applicant to produce further evidence to satisfy the Board that the applicant is – (a) qualified to be licensed; or (b) a fit and proper person to hold a property agent licence. (3) For the purposes of determining whether an applicant for a licence is a fit and proper person, the Board may refer to the Commissioner of Police – (a) the name of the applicant for the licence; and (b) any information and documentation that the Board considers relevant. (4) The Commissioner of Police must inquire into, and report to the Board on, any matters concerning the applicant that the Board requests. (5) A natural person is not a fit and proper person to hold a property agent licence – (a) if the person is an undischarged bankrupt; or (b) if the person 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; or (c) if the Board otherwise determines that the person is not a fit and proper person to hold a property agent licence. (6) A company is not a fit and proper person to hold a property agent licence if – (a) it is in receivership or in liquidation; or (b) it has taken proceedings for voluntary winding-up (except for the purpose of reorganisation); or (c) it has a winding-up order made in respect of it by the Supreme Court; or (d) it has a director, manager, secretary or other similar officer who is suspended from being a property agent under this Act; or (e) the Board otherwise determines that it is not a fit and proper person to hold a property agent licence. (7) In this section, a reference to an applicant includes in the case of an applicant that is a body corporate, a reference to the chief executive officer and each director of the body corporate. 19. Determination of licence application (1) The Board is to determine an application for a property agent licence by – (a) granting the application and issuing the appropriate type of property agent licence to the applicant; or (b) refusing the application. (2) The Board must give the applicant written notice of – (a) the grant of an application; or (b) the refusal to grant an application and the reasons for the refusal. 20. Conditions of licence (1) If the Board issues a licence in accordance with section 19(1)(a) , the Board may issue the licence subject to such conditions as the Board considers appropriate. (2) The Board may at any time after the licence is issued in accordance with section 19(1)(a) – (a) impose new conditions on the licence; or (b) amend or vary a condition of the licence; or (c) rescind a condition of the licence. (3) Without limiting subsections (1) and (2) , a licence issued in accordance with section 19(1)(a) may be subject to conditions of the following kind: (a) a condition requiring the licensee to undertake or complete a specified course of studies within a specified period of time and to a specified standard; (ab) a condition requiring the licensee to notify the Board, in an approved form, of any change in the licensee's name, business address or contact details as soon as practicable after that change; (b) a condition requiring the licensee to undertake, by way of professional development, specified further education or training during the term of the licence to a specified standard. (4) The Board, by notice in writing, must notify the licensee of – (a) any addition, amendment, variation or rescission of a condition of the licence; and (b) the reasons for it. (5) A licence holder must not contravene a condition of his or her licence. Penalty: Fine not exceeding 50 penalty units. 20A. Continuing professional development (1) A licence holder must undertake and complete, to a standard specified in writing by the Board, any courses of study, continuing professional development, further education, training or learning approved in writing by the Board for the purposes of maintaining and developing the skills required to carry out work under the licence. Penalty: Fine not exceeding 50 penalty units. (2) The Board may, at any time, request a licence holder to provide the Board with any information that the Board requires in relation to any courses of study, continuing professional development, further education, training or learning undertaken by the licence holder in accordance with subsection (1) . (3) A licence holder must provide the Board, at any time the Board considers necessary, with any information requested by the Board in accordance with subsection (2) . Penalty: Fine not exceeding 50 penalty units. 21. Period of validity of licence (1) Subject to subsections (2) , (3) and (4) , a licence – (a) is valid for the period, not exceeding 12 months, determined by the Board under this Act; and (b) commences on the date on which it was issued or at a later date determined by the Board. (2) A licence held by a person by virtue of holding deemed registration is valid for the period in respect of which the deemed registration is in force. (3) A licence ceases to be valid if – (a) the licence holder surrenders it to the Board; or (b) it is suspended or cancelled in accordance with this Act. (4) If the holder of a licence dies, the personal representative of that person is taken to be the licence holder for 12 months from the death of the person. 22. Renewal of licence (1) Subject to subsection (8) , not less than 60 days before the expiration of a property agent licence, the holder of the licence may apply to the board for the renewal of the licence. (2) The Board, at its discretion, may accept an application for the renewal of a property agent licence lodged less than 60 days before the expiration of the licence. (3) An application for renewal must be – (a) in an approved form; and (b) accompanied by any prescribed fee and, in the case of an application accepted under subsection (2) , any further prescribed late fee; and (c) accompanied by any documents and information the Board requires. (4) Sections 17 , 18 , 19 , 20 and 21 apply in respect of an application for, and the issue of, the renewal of a licence in the same manner as they apply to an application for, and the issue of, a licence. (5) If an application for renewal of a licence is made under this section, the current licence continues in force until it is renewed or its renewal is refused. (6) The renewal of a licence takes effect from the date on which the licence was due to expire. (7) The refusal to renew a licence takes effect on the date of the notice of refusal. (8) This section does not apply to a person who holds a licence by virtue of holding deemed registration. 23. Surrender of licence A property agent licence may be surrendered to the Board at any time. 24. Record of suspended licences (1) The Board is to keep a register containing details of all property agent licences – (a) issued and in force under this Act; or (b) held by a person by virtue of holding deemed registration who has notified the Board under section 24B(2) of their entitlement to hold deemed registration – that are suspended under this Act or under an Act of another State or a Territory. (2) The Board is to make the register of suspended licences available for public inspection during normal business hours. 24A. Financial capacity of licence holders (1) If the Board is satisfied that the licence holder does not have the material or financial resources to comply with the requirements of this Act, or any other Act of another State or a Territory, the Board may cancel the licence. (2) The Board is to give the licence holder written notice of the cancellation of the licence under subsection (1) setting out the reasons why the licence is cancelled and the day on which the cancellation takes effect. 24B. Deemed registration of licence holders (1) In this section – occupation has the meaning it has in section 4(1) of the Mutual Recognition Act 1992 of the Commonwealth; participating jurisdiction has the meaning it has in section 4(1) of the Mutual Recognition Act 1992 of the Commonwealth. (2) A person who intends to carry out work in accordance with a licence in the State by virtue of holding deemed registration must notify the Board of the person's entitlement to hold deemed registration before carrying out the work. Penalty: Fine not exceeding 10 penalty units. (3) A notification under subsection (2) – (a) must be in a manner approved by the Board; and (b) must be in a form approved by the Board; and (c) is to contain any information that the Board considers necessary. (4) If there is a change in the information provided by a person in a notification to the Board under subsection (2), the person must, as soon as practicable, in a form approved by the Board, notify the Board of the change. Penalty: Fine not exceeding 10 penalty units. (5) A person who is a licence holder by virtue of holding deemed registration must not carry out work in accordance with the licence in this State unless the work is within the scope of the work that the person is authorised to carry out for that occupation in the relevant participating jurisdiction. Penalty: Fine not exceeding 10 penalty units. (6) If a person is found guilty of an offence against subsection (2) , (4) or (5) , the Board may – (a) suspend or cancel the deemed registration held by the person; and (b) disqualify the person from holding a licence by virtue of holding deemed registration for a specified period or until the person fulfils a specified condition. (7) The Board may, at any time, request a person who is a licence holder by virtue of holding deemed registration to provide the Board with any information that the Registrar requires in relation to the maintenance of the person's skills and any continuing professional development undertaken by the person. (8) A person who is a licence holder by virtue of holding deemed registration must, before the person proposes to carry out any work in accordance with the licence in this State, provide the Board with notice, in an approved form, containing evidence that the person is covered by insurance that is approved by the Board. Penalty: Fine not exceeding 10 penalty units. Division 3 - Qualifications 24C. Application of Division For the avoidance of doubt, this Division does not apply to a person who holds a real estate agent licence, property manager licence, general auctioneer licence, or property representative licence, by virtue of holding deemed registration. 25. Qualifications for real estate agent licence A person is qualified to be granted a real estate agent licence if – (a) the person's name has been in Part 1 of the Register at any time during the 5-year period immediately preceding the licence application; or (b) in the case of a natural person, the person – (i) has the qualifications required to be held by the person that are specified in a determination made and in force under section 28A(1)(a) ; and (ii) has, during the 5-year period immediately preceding the licence application, been employed as a property manager or property representative for – (A) a period of at least 2 years full-time employment; or (B) periods of part-time employment that total 2 years; or (c) in the case of a company, at least one of its directors holds a real estate agent licence; or (d) the person – (i) 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 real estate agency business in that State or Territory; and (ii) has been employed full time in real estate agency business 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 licence application; and (iii) except in the case of a company, has satisfied the Board, by examination or inquiry, that he or she has sufficient knowledge and experience as a real estate agent to be able to carry on that business. 26. Qualifications for property manager licence A person is qualified to be granted a property manager licence if – (a) the person's name has been in Part 2 of the Register at any time during the 5-year period immediately preceding the licence application; or (b) in the case of a natural person, the person – (i) has the qualifications required to be held by the person that are specified in a determination made and in force under section 28A(1)(b) ; and (ii) satisfies the Board, by examination or inquiry, that the person has sufficient knowledge and experience of property management business to be able to carry on that business; or (c) in the case of a company, one of its directors holds a property manager licence; or (d) the person – (i) 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 property management business in that State or Territory; and (ii) has been employed full time in property management business 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 licence application; and (iii) except in the case of a company, has satisfied the Board, by examination or inquiry, that he or she has sufficient knowledge and experience as a property manager to be able to carry on that business. 27. Qualifications for general auctioneer licence A person is qualified to be granted a general auctioneer licence if – (a) the person's name has been in Part 3 of the Register at any time during the 5-year period immediately preceding the licence application; or (b) in the case of a natural person, the person – (i) has the qualifications required to be held by the person that are specified in a determination made and in force under section 28A(1)(c) ; or (ii) 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; or (c) in the case of a company, one of its directors holds a general auctioneer licence; or (d) the person – (i) 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 general auctioneering business in that State or Territory; and (ii) has been employed full time in general auctioneering business 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 licence application; and (iii) except in the case of a company, has satisfied the Board, by examination or inquiry, that he or she has sufficient knowledge and experience as a general auctioneer to be able to carry on that business. 28. Qualifications for property representative licence A person is qualified to be granted a property representative licence if the person – (a) has the qualifications required to be held by the person that are specified in a determination made and in force under section 28A(1)(d) ; or (b) satisfies the Board, by examination or inquiry, that the person has sufficient knowledge and experience of the functions of a property representative to be able to carry on that occupation. 28A. Board may make determinations on qualifications (1) The Board may make a determination specifying the qualifications, including national qualifications, that the Board considers are required to be held by a person in order for the person to be granted a – (a) real estate agent licence; or (b) property manager licence; or (c) general auctioneer licence; or (d) property representative licence. (2) The Board may vary or revoke a determination made under subsection (1) . (3) The Board is to ensure that a determination made under subsection (1) , or a variation or a revocation of the determination – (a) is published in a manner that the Board thinks fit before the determination or variation comes into effect or the revocation takes effect; and (b) specifies the period for which the determination or variation is in effect or the time when the revocation takes effect; and (c) remains published while the determination or variation remains in effect; and (d) is made available for inspection by members of the public and property agents – (i) at the public office of the Board; and (ii) on the website of the Board. PART 4 - Register 29. Board to maintain Register (1) The Board is to maintain a Register of Property Agents. (2) The Register is to be divided into 4 Parts. (3) Those Parts are to be – (a) Part 1– Real Estate Agents, which is to contain the name and business address of each real estate agent, including each real estate agent, holding a real estate agent licence by virtue of holding deemed registration, who has notified the Board under section 24B(2) of the real estate agent's entitlement to hold deemed registration; and (b) Part 2– Property Managers, which is to contain the name and business address of each property manager, including each property manager, holding a property manager licence by virtue of holding deemed registration, who has notified the Board under section 24B(2) of the property manager's entitlement to hold deemed registration; and (c) Part 3– General Auctioneers, which is to contain the name and business address of each general auctioneer, including each general auctioneer, holding a general auctioneer licence by virtue of holding deemed registration, who has notified the Board under section 24B(2) of the general auctioneer's entitlement to hold deemed registration; and (d) Part 4– Property Representatives, which is to contain the name and business address of each property representative, including each property representative, holding a property representative licence by virtue of holding deemed registration, who has notified the Board under section 24B(2) of the property representative's entitlement to hold deemed registration. (4) The Register may be kept in any form that permits its contents to be readily inspected in a legible form. (5) The Board is to make the Register available for public inspection during normal business hours. (6) The Board is to publish the Register on its website. 30. 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 business address of each real estate agent who is carrying on real estate agency business and show, in addition, the address of each place where that agent is carrying on that business and the name under which that agent is doing so; and (b) Division (2), which is to contain the names and business addresses of all other real estate agents and any other information approved by the Board. (2) If 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 business address of each of the directors of the agent. (3) For the purposes of subsection (1) , a business address contained in Part 1 of the Register in relation to a real estate agent who holds a licence by virtue of holding deemed registration may be an address for the real estate agent in another State or a Territory. 31. 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 business address of each property manager who is carrying on property management business and show, in addition, the address of each place where that manager is carrying on that business and the name under which that manager is doing so; and (b) Division (2), which is to contain the names and business addresses of all other property managers and any other information approved by the Board. (2) If a property manager named in Part 2 is a company, the entry in respect of the manager is also to contain the name and business address of each of the directors of the manager. (3) For the purposes of subsection (1) , a business address contained in Part 2 of the Register in relation to a property manager who holds a licence by virtue of holding deemed registration may be an address for the property manager in another State or a Territory. 32. Part 3 of Register (1) Part 3 of the Register is to be divided into – (a) Division (1), which is to contain the name and business address of each general auctioneer who is carrying on general auctioneering business and show, in addition, the address of each place where that general auctioneer is carrying on that business and the name under which that general auctioneer is doing so; and (b) Division (2), which is to contain the names and business addresses of all other general auctioneers and any other information approved by the Board. (2) If 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 business address of each of the directors of the general auctioneer. (3) For the purposes of subsection (1) , a business address contained in Part 3 of the Register in relation to a general auctioneer who holds a licence by virtue of holding deemed registration may be an address for the general auctioneer in another State or a Territory. 33. Part 4 of Register (1) Part 4 of the Register is to contain the names and business addresses of all property representatives and any other information approved by the Board. (2) For the purposes of subsection (1) , a business address contained in Part 4 of the Register in relation to a property representative who is a licence holder by virtue of holding deemed registration may be an address for the representative in another State or a Territory. PART 5 - Real Estate Agents and Property Managers Division 1 - Conduct of real estate agency business and property management business 34. 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 he or she is a real estate agent named in Part 1(1) of the Register. Penalty: Fine not exceeding 1 000 penalty units. 35. 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 he or she is a property manager named in Part 2(1) of the Register. Penalty: Fine not exceeding 1 000 penalty units. 36. Management of real estate agency business (1) Subject to subsection (7) , a real estate agent named in Part 1(1) of the Register must not carry on real estate agency business unless the business is – (a) carried on at an authorised place of business; and (b) managed by a natural person who is – (i) the real estate agent; or (ii) 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 real estate agency business unless it is carried on at an authorised place of business for that real estate agency business. Penalty: Fine not exceeding 50 penalty units. (3) A real estate agent, unless authorised by the Board, must not manage real estate agency business at more than one authorised place of business. Penalty: Fine not exceeding 50 penalty units. (4) The Board may authorise a real estate agent to manage real estate agency business at no more than 3 authorised places of business. (5) Before authorising a real estate agent under subsection (4) , the Board must be satisfied that – (a) the real estate agent is competent to manage the real estate agency business; and (b) the places of business are all in the same region. (6) For the purpose of this section, a real estate agency business 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. (7) If for any reason a real estate agency business at an authorised place of business 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 real estate agency business to be managed, for such period as the Board is to specify, by a property representative employed by the agent. 37. Management of property management business (1) A property manager named in Part 2(1) of the Register must not carry on property management business unless the business is – (a) carried on at an authorised place of business; and (b) managed by a natural person who is– (i) the property manager; or (ii) a property manager, named in Part 2(2) of the Register employed by the property manager; or (iii) a real estate agent, named in Part 1(2) of the Register employed by the property manager. Penalty: Fine not exceeding 50 penalty units. (2) A property manager named in Part 2(2) of the Register or a real estate agent named in Part 1(2) of the Register must not manage a property management business unless it is carried on at an authorised place of business for that property management business. Penalty: Fine not exceeding 50 penalty units. (3) A property manager or real estate agent, unless authorised by the Board, must not manage a property management business at more than one authorised place of business. Penalty: Fine not exceeding 50 penalty units. (4) The Board may authorise a property manager or real estate agent to manage property management business at no more than 3 authorised places of business. (5) Before authorising a property manager or real estate agent under subsection (4) , the Board must be satisfied that – (a) the property manager or real estate agent is competent to manage the property management business; and (b) the places of business are all in the same region. (6) For the purpose of this section, a property management business is being managed by a property manager or real estate agent if the manager or 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. (7) Despite subsection (1) , if for any reason the property management business at an authorised place of business cannot be managed by – (a) the property manager; or (b) by a property manager or real estate agent 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 a property representative employed by the manager. 38. Employment of property representatives (1) A real estate agent named in Part 1(1) of the Register or a property manager named in Part 2(1) of the Register must not employ a person to perform the functions of a property representative on behalf of the property manager or real estate agent unless the person is a property representative. Penalty: Fine not exceeding 500 penalty units. (2) A real estate agent named in Part 1(1) of the Register or a property manager named in Part 2(1) of the Register must not enter into a contract with a body corporate for the performance, by a person who is an employee or contractor of the body corporate, of the functions of a property representative unless the individual is a property representative. Penalty: Fine not exceeding 500 penalty units. (2A) For the avoidance of doubt, nothing in subsection (1) or (2) prevents – (a) a real estate agent named in Part 1(2) of the Register from being employed or contracted, in the capacity of a real estate agent, by a real estate agent named in Part 1(1) of the Register; or (b) a property manager named in Part 2(2) of the Register from being employed or contracted, in the capacity of a property manager, by a property manager named in Part 2(1) of the Register. (3) A person must not, by any means, hold himself or herself out as being a property representative employed or contracted by a real estate agent named in Part 1(1) of the Register or a property manager named in Part 2(1) of the Register, or by a body corporate, unless the person is so employed or contracted. Penalty: Fine not exceeding 100 penalty units. (4) A person must not, by any means, perform, or hold himself or herself out as qualified or prepared to perform, any of the functions of a property representative unless the person is a property representative. Penalty: Fine not exceeding 100 penalty units. 39. Limitations on employees of real estate agents (1) This section applies to – (a) a real estate agent employed by another real estate agent to manage a branch of that agent's real estate agency business; and (b) a property manager, property representative, or real estate agent, 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. 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. 40. Limitations on employees of property managers (1) This section applies to a property manager, a real estate agent or a property representative, 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. 41. Limitation on employment of certain people by real estate agents Except with the consent of the Board, a real estate agent named in Part 1(1) of the Register must not employ in any capacity a person whose property agent licence is suspended under this Act. Penalty: Fine not exceeding 500 penalty units. 42. Limitation on employment of certain people by property managers Except with the consent of the Board, a property manager named in Part 2(1) of the Register must not employ in any capacity a person whose property agent licence is suspended under this Act. Penalty: Fine not exceeding 500 penalty units. 43. Property representatives A person must not perform the functions of a property representative unless the person is a property representative. Penalty: Fine not exceeding 500 penalty units. Division 2 - Remuneration of real estate agents and property managers 44. Appointment of real estate agents to be in writing (1) 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. (2) 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. (3) An appointment is not valid for the purposes of subsection (2) 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 person, and how those expenses are to be recouped; and (e) clearly sets out how either party to the agreement may terminate the appointment. (4) 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 (2) 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. (5) The onus of proof that subsection (4) was complied with is on the person who obtained the signature. (6) A real estate agent must not – (a) demand any valuable consideration in contravention of subsection (2) ; 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. (7) Any valuable consideration received by a real estate agent in contravention of subsection (2) or (6) is recoverable as a debt by the person from whom the real estate agent received it. (8) A written appointment under subsection (2) that – (a) is not an agency agreement; and (b) is not expressed to be for a fixed period, or is expressed to be for a period of more than 30 days – may be terminated by either party giving to the other at least 30 days' written notice of termination. (9) A written appointment under subsection (2) that is an agency agreement may be terminated by either party giving to the other not more than 30 days' written notice of termination. (10) A written appointment under subsection (2) that is an agency agreement is not valid for a period exceeding 120 days beginning on the day on which the agreement is signed. (11) However, subsection (10) 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. 45. Entitlement to commission after written appointment expires (1) In this section – specified property, in relation to a written appointment under section 44(2) , means a property specified in that appointment. (2) A real estate agent appointed to act for a person (the vendor) under a written appointment under section 44(2) , is entitled to sue for, recover or retain any valuable consideration for services provided under that written appointment if – (a) within 90 days after the expiry or termination of the written appointment, the specified property is sold by the vendor; and (b) the real estate agent had – (i) introduced the purchaser to the vendor; or (ii) shown the specified property to the purchaser; and (c) the introduction or showing of the property was the effective cause of the sale. (3) Subsection (2) does not apply if the sale of the specified property is subject to a valid written appointment under section 44(2) . 46. 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 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 may terminate the appointment. (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. (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) that is not expressed to be for a fixed period, or is expressed to be for a period of more than 30 days, may be terminated by either party giving to the other at least 30 days' written notice of termination. 47. Property agent to disclose any benefits (1) In this section – benefit includes commission. (2) Subject to subsection (4) , 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