Until Recently, digital signatures could not be used on a Residential Tenancy Agreement under the Electronic Transactions Legislation.
With the introduction of Docusign, and recent changes, legislation now permits Docusign to electronically witness the signing of certain documents. Read More
Often, business ventures and relationships come about through casual meetings and friendly interactions. If a dispute arises, perhaps many years later, a lack of written communication makes recalling what was agreed to difficult and this can have a major impact on events to follow. Read More
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. Read More
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. Read More
In the real estate sector, engagement with an agency may be on a debit-credit basis, commission only or as an independent contractor. Read More
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. Read More
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. Read More
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. Read More
The High Court has held that Auctioneers have an unfettered discretion and an irrevocable authority to sign contracts at the conclusion of an auction on behalf of all parties. It follows then that Auctioneers have a duty to ensure auctions are concluded and these duties will come into play in a variety of instances, for example where a purchaser refuses to sign the contract. Read More
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. Read More
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. Read More
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. Read More
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. Read More
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. Read More
The issue of whether an agent was the effective cause of sale is often raised in circumstances where a vendor has engaged multiple agencies in the sale of their property either simultaneously or consecutively. Unfortunately, there is no set formula that Tribunals or Courts use to determine effective cause of sale. Read More
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. Read More
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. Read More
The NSW Fair Trading Complaints Register commenced on 1 July 2016. The Register records complaints against businesses according to their recognisable ‘trading’ or ‘business name’. Only businesses with a collective total of 10 or more complaints in a month will appear on the Register. Once a business receives more than 10 complaints, NSW Fair Trading will contact that business in relation to those complaints. Read More
Agents have an obligation to disclose known material facts about a property to potential purchasers. If an agent fails to disclosure a material fact, the agent could be prosecuted for breaching the Property, Stock and Business Agents Act 2002 and the Australian Consumer Law. Read More
Tips on the underquoting laws 2017 Read More