Interview for EAC with Lisa Jemmeson | NCAT & Interstate Landlords

On Thursday 18 April 2019, JemmesonFisher appeared before the New South Wales Local Court in proceedings commenced to terminate a residential tenancy on behalf of an interstate landlord.

The Agent followed the new procedure by correctly applying to NCAT at first instance. Thereupon NCAT being apprised of the interstate residential status of the landlord, promptly resolved that the matter would require the exercising of federal jurisdiction and could not be heard by NCAT.

JemmesonFisher was engaged by the Landlord Plaintiff to file a Summons with the Court seeking leave to the have the Court determine the residential tenancy matter.

To find out more about the impact of this case, please click on the video above to watch an interview with Lisa Jemmeson, Senior Associate of Litigation at JemmesonFisher.

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Interview for EAC with Aston Chee | Shares Sale Agreement

There is a trend at the moment toward share sales as opposed to sales of business for real estate agencies. Selling shares in your real estate business has the advantage of maximising the value of your portfolio as well as unlocking Capital Gains Tax (CGT) benefits, not to mention necessitating less disruptions to your landlords who would otherwise be required to re-sign managing agency agreements.

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Interview For EAC With Lisa Jemmeson | Restraints Of Trade

A business owner has the right to protect their legitimate business interests through the provision and enforcement of restraints of trade. However this happens very differently in the context of an employee, including commissions-only sales people, as to an independent contractor, which functions as a separate businesses operating in parallel to an agency.

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Restraints of Trade In Light of Toop & Toop Case | Lee Woodward Interview with Greg & Lisa Jemmeson

Leaving a real estate business for another and operating in the same area will never be the same again.

Many laws have changed and the courts are very clear about confidential information, business springboarding, the ownership of databases, property management and the enforcement of restraints.

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Database

All agents keep databases of client information and in a real estate business this represents a protectable interest. If an employee of an agency refers new clients into the business, that information legally belongs to the business, not the individual salesperson. Please watch our short video for further information about the handling of client/customer databases.

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Fraud Prevention Guidelines

Many agents are receiving fines from NSW Fair Trading for failure to include proof of identity documents in their sales files. While the Fraud Prevention Guidelines are an adjunct to the Supervision Guidelines set out by the Commissioner of Fair Trading, and there are no specific rules of conduct, fines may be issued at Fair Trading’s discretion.

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Disclaimers

In litigation surrounding misleading or deceptive marketing materials, all text, photos and floor-plans included on material is considered, along with the character of the property and nature of the parties. A disclaimer should be included on all marketing brochures in order to limit the agent’s liability and the vendor must sign off on all inclusions. While a disclaimer does assist in protecting an agent, it isn’t a ‘get-out-of-jail-free’ card. Please watch our short video for further information about disclaimers and their use in marketing of properties.

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Inspection Registers

Fair trading has introduced changes to the regulations requiring agents now maintain a register of all strata, building and pest inspections or reports that to their knowledge have been conducted for the property for sale. Please watch our short video below to find out more about keeping Inspection registers for properties for sale.

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Fair Trading Inspections

NSW Fair Trading are authorised to attend your agency’s premises without warning during reasonable business hours in order to inspect the records held by your business, as well as issue penalty notices for breaches of the PSBA. Turning them away is not your best move, in fact we suggest that you give your full cooperation and attention to their enquiries, keeping them on side and being as compliant as possible. If you seek to reschedule their visit, this can often cause the inspection to be more thorough. Please watch our short video below for more information about Fair Trading inspections.

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Shareholder Agreements

More and more often, companies are allowing their staff the chance to purchase shares in the company, whether a minority share or a larger number. A shareholder agreement is the critical document that sets out the parameters of the business relationship, good governance of a company, who a director can be and what the aims and objectives of the company are. Most importantly it addresses how disputes are handled and the manner in which shareholders may sell their shares and thereby exit the company. Please watch our short video to find out more about the purpose and elements of shareholder agreements.

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Bidding at the Auction

When property is being purchased by a Self-Managed Super Fund or a Trustee company, as these are not legal entities, contracts must be signed by an individual as trustee, or the director of a corporate trustee, in their capacity as such, on the trust’s behalf. It is necessary then to have documentation authorising the trustee, or director on behalf of the corporate trustee, to bid at auction.

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Declaring Agents Interest

The Property, Stock and Business Agents Act (PSBA) provides that if a licenced agent is selling a property they own through the agency at which they work, they must disclose in all marketing materials that there is an “Agents Interest”.

If the property being sold is owned by an employee of the Agency that is not a Licenced Agent, for example a Certificate Holder, there is no requirement in the PSBA to disclose Agents Interest in marketing materials for the sale of that property.

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Competitive Advantage

What can Agents do when competitors receive a competitive advantage by not following the requirements of the Property Stock and Business Act?

Agents that want to make a complaint against a competitor cannot use the online NSW Fair Trading Complaints Register as the Register is only for customers of that particular agency. An agent can make a written complaint about that agency to the Minister, Local Member or by contacting the enforcement branch of Fair Trading. Agents should be mindful that if they do submit a complaint to Fair Trading, they too may be investigated to ensure their office is in order.

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