Property Agents and Land Transactions Regulations 2006

Property Agents and Land Transactions Regulations 2006

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Property Agents and Land Transactions Act 2005 .

W. J. E. COX

Governor

By His Excellency's Command,

STEVEN KONS

Minister for Justice and Workplace Relations

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Property Agents and Land Transactions Regulations 2006 .

2.   Commencement

These regulations take effect on the day on which Part 1 of the Property Agents and Land Transactions Act 2005 commences.

3.   Interpretation

(1)  In these regulations –

Act means the Property Agents and Land Transactions Act 2005 ;

ledger account means an account required under regulation 20(1) to be kept in the trust account ledger in respect of a person, property or transaction;

[Regulation 3 Subregulation (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008]

licensed conveyancer means a conveyancer licensed under the Conveyancing Act 2004 ;

personal representative means the person named in the will of a deceased person as –

(a) the personal representative of the deceased person; or

(b) if no personal representative is named, the executor of the will;

reconcile has the meaning given by regulation 21(2) ;

reconciliation record means the record of the reconciliation of a trust account made under regulation 21 ;

schedule of invested trust money means a schedule required to be prepared under regulation 22(1) ;

trust account cash book means a cash book required to be kept under regulation 15(1) ;

trust account deposit record means a record required to be kept under regulation 11(1) after trust money is deposited;

trust account general journal means the journal of trust money transfers required to be kept under regulation 18(1) ;

trust account ledger means a ledger required to be kept under regulation 19 ;

trust account receipt means a receipt required to be issued under regulation 9(2) ;

trust account records means the records and accounts required to be kept under regulation 5 whether kept on paper or electronically.

(2)  In these regulations, a person ceases to carry on the business of a property agent if –

(a) the registration of the person is revoked or suspended; or

(b) the person asks for his or her name to be removed from the Register; or

(c) the person is no longer recorded in the Register for any reason.

4.   Records to be in English

A person required to keep a record or account under these regulations must ensure that the record or account is in English.

Penalty:  Fine not exceeding 50 penalty units.

PART 2 - Trust Account Records

Division 1 - Preliminary

5.   Trust account records to be kept

(1)  This regulation applies to a property agent who is –

(a) a real estate agent named in Part 1(1) of the Register; or

(b) a property manager named in Part 2(1) of the Register; or

(c) a general auctioneer.

(2)  A property agent who receives trust money must keep the following records and accounts relating to the trust money in a secure place:

(a) at least one duplicate of each trust account receipt;

(b) at least one duplicate of each trust account deposit record;

(c) records relating to trust account payments made under Division 5 ;

(d) trust account cash book;

(e) a trust account ledger;

(f) a trust account general journal;

(g) the statements issued by an approved institution in respect of trust accounts;

(h) reconciliation records;

(i) if trust money has been invested, a schedule of invested trust money;

(j) any other records or accounts that the Board thinks fit;

(k) records or accounts that are specified by the Board as necessary to support the records kept under the above paragraphs.

Penalty:  Fine not exceeding 50 penalty units.

6.   Supervision of trust accounts

(1)  A property agent who receives trust money must –

(a) supervise the keeping of the trust account records relating to trust money received by the property agent; and

(b) ensure that the reconciliation records and schedule of ledger accounts are accurate; and

(c) within 2 days after the making of a reconciliation record, endorse the record with –

(i) a statement that the record is accurate; and

(ii) his or her signature.

Penalty:  Fine not exceeding 50 penalty units.

(2)  If the property agent is a corporation, the property agent responsible for the management of the corporation is the property agent who must comply with subregulation (1) .

7.   Offence

A property agent must not knowingly –

(a) include false or misleading information in trust account records; or

(b) create false or misleading trust account records.

Penalty:  Fine not exceeding 50 penalty units.

Division 2 - Trust money

8.   Control of trust money

(1)  A property agent who has trust money in a trust account must retain the money in the account until the money is paid –

(a) to the person entitled to it; or

(b) to the legal practitioner or licensed conveyancer of the person entitled to it; or

(c) in accordance with the written directions of the person entitled to the money or his or her legal practitioner or licensed conveyancer.

Penalty:  Fine not exceeding 50 penalty units.

(2)  When a person ceases to carry on the business of a property agent, or a person who is a property agent dies, but the person holds trust money in a trust account, the person or the personal representative of the deceased person must, with the written approval of the parties to the transaction to which the money relates, immediately disburse the trust money –

(a) to the trust account of another property agent; or

(b) to the trust account of a legal practitioner, or licensed conveyancer, acting for either of the parties to the transaction.

Penalty:  Fine not exceeding 50 penalty units.

Division 3 - Trust account receipts

9.   Trust account receipts to be issued

(1)  In this regulation –

coded deposit book means a deposit book that is issued –

(a) by an approved institution; and

(b) with an identifying code that links the deposit book to a tenant or property.

(2)  A property agent must issue a receipt for any trust money received for or on behalf of a party to negotiations in which the property agent is involved.

Penalty:  Fine not exceeding 50 penalty units.

(3)  Unless requested to do so, a property agent does not need to issue a trust account receipt if the property agent receives the trust money by –

(a) electronic funds transfer; or

(b) deposit into the trust account if a coded deposit book is given to the person paying the money; or

(c) another means of direct deposit into the trust account.

(4)  If the property agent carries on business at more than one location, the property agent must ensure that trust account receipts can be issued at all locations where he or she carries on business.

Penalty:  Fine not exceeding 50 penalty units.

10.   Form of trust account receipt

(1)  A trust account receipt is to –

(a) have printed on it –

(i) the name under which the property agent carries on business; and

(ii) the ABN or ACN for the property agent or business named; and

(iii) the receipt number; and

(iv) the words "trust account"; and

(b) state –

(i) the date on which the receipt was issued and the date on which the trust money was received; and

(ii) the name of the person paying the money and the name of the person on whose behalf the money was paid, if different; and

(iii) the transaction to which the money relates; and

(iv) the form in which the money was received; and

(v) the amount of money received; and

(c) be signed by –

(i) the property agent; or

(ii) a person approved by the property agent to act for or on behalf of the property agent.

(2)  A property agent must ensure that trust account receipts are –

(a) consecutively numbered; and

(b) printed with those numbers by a machine.

Penalty:  Fine not exceeding 50 penalty units.

(3)  A property agent must make at least one duplicate of each trust account receipt.

Penalty:  Fine not exceeding 50 penalty units.

Division 4 - Trust account deposit records

11.   Record of trust account deposit to be kept

(1)  A property agent must keep a record of all deposits of trust money into a trust account.

Penalty:  Fine not exceeding 50 penalty units.

(2)  The trust account deposit record is to –

(a) have printed on it –

(i) the name under which the property agent carries on business; and

(ii) the words "trust account"; and

(b) state –

(i) the date on which the money was deposited into the trust account; and

(ii) the account number of the trust account; and

(iii) if the money was in the form of a cheque, the name of the drawer of the cheque; and

(c) be signed by –

(i) the property agent; or

(ii) a person approved by the property agent to act for or on behalf of the property agent.

(3)  A property agent must make at least one duplicate of each trust account deposit record.

Penalty:  Fine not exceeding 50 penalty units.

Division 5 - Trust account payments

12.   Trust account payments

A property agent must not make a payment of trust money except by –

(a) a trust account cheque; or

(b) if the parties to the transaction to which the trust money relates agree, electronic funds transfer.

Penalty:  Fine not exceeding 50 penalty units.

13.   Trust account cheques

(1)  A trust account cheque is to –

(a) have printed on it –

(i) the name under which the property agent carries on business; and

(ii) the ABN or ACN of the property agent or business named; and

(iii) the words "trust account"; and

(iv) the serial number of the cheque; and

(b) state –

(i) the name of the person to whom the payment is made; and

(ii) the date on which the cheque is written; and

(iii) the amount of the payment; and

(c) be signed by –

(i) the person in charge of the business; or

(ii) a person acting for or on behalf of the person in charge of the business with the approval of the person in charge.

(2)  A property agent must ensure that trust account cheques are –

(a) consecutively numbered; and

(b) printed with those numbers by a machine; and

(c) marked "Not Negotiable"; and

(d) not made out payable to "Cash".

Penalty:  Fine not exceeding 50 penalty units.

14.   Payments by electronic funds transfer

(1)  A property agent who makes a payment of trust money by electronic funds transfer must ensure that –

(a) a written authority authorising the payment has been given by the person on whose behalf the payment has been made; and

(b) the transfer is authorised by the person in charge of the business premises at which the payment is made.

(2)  An authorisation under subregulation (1)(a) is to specify –

(a) the authorised deposit-taking institution; and

(b) the account name; and

(c) the account number; and

(d) the purpose of the payment.

Penalty:  Fine not exceeding 50 penalty units.

Division 6 - Trust account cash book

15.   Trust account cash books

(1)  A property agent must keep a cash book in respect of each trust account established and maintained by the property agent.

Penalty:  Fine not exceeding 50 penalty units.

(2)  The trust account cash book is to record receipt and payment particulars in the order in which the money is received or paid.

16.   Receipt records in trust account cash books

A property agent must ensure that the following details in respect of each trust account receipt are recorded in the trust account cash book:

(a) the date on which the receipt is issued and the date on which the money is received;

(b) the name of the person on whose behalf the money is being paid and the name of the person who pays the money if not that person;

(c) the amount of money received;

(d) the reason the money was received;

(e) the folio reference of the ledger account to which the money was credited;

(f) if the money was not received by electronic funds transfer, the number of the trust account receipt issued for the money;

(g) if the money was received by electronic funds transfer, the reference number issued by the authorised deposit-taking institution for the funds transfer transaction.

Penalty:  Fine not exceeding 50 penalty units.

17.   Payment records in trust account cash books

A property agent must ensure that the following details in respect of each payment of trust money out of the trust account are recorded in the trust account cash book:

(a) the date on which the payment was made;

(b) the name of the person to whom the payment was made;

(c) the amount of money paid;

(d) the reason the money was paid;

(e) the folio reference of the ledger account from which the payment was debited;

(f) if the payment was made by cheque, the number of the cheque;

(g) if the payment was made by electronic funds transfer, the reference number issued by the authorised deposit-taking institution for the funds transfer transaction.

Penalty:  Fine not exceeding 50 penalty units.

Division 7 - Trust account journals

18.   Trust account general journal

(1)  A property agent must keep a journal that records the following details in respect of each transfer of the record of trust money from one ledger account to another made by the property agent:

(a) the date of the transfer;

(b) the amount of money transferred;

(c) the purpose of the transfer;

(d) the ledger account from which the money was transferred;

(e) the ledger account to which the money was transferred.

Penalty:  Fine not exceeding 50 penalty units.

(2)  Entries in a trust account general journal must be made in the sequence in which the transfers are undertaken.

Division 8 - Trust account ledgers

19.   Trust account ledgers

A property agent must keep a ledger in respect of the trust money held by the property agent.

Penalty:  Fine not exceeding 50 penalty units.

20.   Ledger accounts

(1)  The trust account ledger is to contain a separate account for each person, property or transaction in respect of which the property agent holds trust money.

(2)  For each ledger account, a property agent must –

(a) clearly identify the person, property or transaction for which the ledger account is kept; and

(b) if the ledger account is identified by the person or property, record a description of the transaction for which the ledger account is kept; and

(c) at all times, have sufficient information to enable calculation of the amount of the trust money held by the property agent in respect of which the ledger account is kept.

Penalty:  Fine not exceeding 50 penalty units.

(3)  Despite subregulation (1) , a general auctioneer, or real estate agent, conducting a chattel auction is not required to keep a ledger account for each party to the auction if –

(a) the auctioneer or agent keeps a ledger account in respect of the auction as a whole; and

(b) the transactions in the ledger account are clearly identifiable as transactions that relate to the auction; and

(c) the ledger account in respect of each auction is balanced independently from other ledger accounts.

Division 9 - Reconciliations

21.   Monthly reconciliations

(1)  A property agent must reconcile the property agent's trust account each calendar month.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A property agent reconciles a trust account by –

(a) calculating the balance of the trust account cash books; and

(b) matching the balance of the trust account cash books with the statements issued for the trust account by the approved institution; and

(c) preparing a schedule of the property agent's ledger accounts that –

(i) records the name of each client, property or transaction for whom the property agent holds trust money; and

(ii) states the amount of money held in each ledger account; and

(iii) results in a total amount held in the trust account that is equal to the matched amount in paragraph (b) when the amounts specified in the schedule are tallied.

Penalty:  Fine not exceeding 50 penalty units.

Division 10 - Schedule of invested trust money

22.   Schedule of invested trust money

(1)  If a property agent has invested trust money under regulation 29 , the property agent must prepare a schedule of the invested trust money each time he or she reconciles the trust account under regulation 21 .

Penalty:  Fine not exceeding 50 penalty units.

(2)  The schedule of invested trust money is to contain –

(a) the joint names in which the trust money has been invested; and

(b) a statement of how the trust money has been invested; and

(c) the amount of trust money that has been invested and, if the trust money has been invested with more than one person or in more than one manner, the amount of trust money invested with each such person or in each such manner.

(3)  The property agent must keep the schedules of invested trust money with the reconciliation records and schedule of ledger accounts.

Penalty:  Fine not exceeding 50 penalty units.

Division 11 - Preparation and keeping of trust account records

23.   Where trust account records are to be kept

(1)  A property agent must keep all the trust account records for the property agent's business at –

(a) the property agent's principal place of business; or

(b) such other place as the Board may approve.

Penalty:  Fine not exceeding 50 penalty units.

(2)  Despite subregulation (1) , a property agent who carries on business at a principal place of business and another place of business may keep the trust account records relating to the business carried on at that other place of business at that other place of business if the Board approves.

(3)  The approval of the Board under subregulation (1) or (2) is to be provided to the property agent in writing.

24.   Records may be prepared and stored electronically

(1)  A property agent may prepare and store trust account records in writing or electronically.

(2)  If trust account records are prepared electronically, the property agent must –

(a) keep printed records of the electronic records for the period of one year after the audit of those records is completed; and

(b) separate the electronic trust account records into individual accounts for each calendar month; and

(c) retain a means of retrieving the electronic records; and

(d) record, in writing, details of how the electronic records may be retrieved.

Penalty:  Fine not exceeding 50 penalty units.

Division 12 - Retention and disposal of trust account records

25.   Retention and disposal of trust account records

(1)  A property agent must retain the property agent's trust account records for a period of not less than 6 years.

Penalty:  Fine not exceeding 50 penalty units.

(2)  Subregulation (1) does not apply to paper copies of trust account records kept electronically.

(3)  A property agent must not remove the property agent's trust account records from the State.

Penalty:  Fine not exceeding 50 penalty units.

(4)  A property agent who disposes of trust account records must do so by –

(a) burning, shredding, pulping or burying them; or

(b) disposing of them in any other way authorised by the Board.

Penalty:  Fine not exceeding 50 penalty units.

26.   Disposal of records where property agent no longer carrying on business

(1)  A person who ceases to carry on the business of a property agent, or the personal representative of a deceased property agent, as soon as practicable after the cessation of the business or the death, must –

(a) give the trust account records held by the person or personal representative –

(i) if the records relate to an active matter and trust account money held in respect of the matter has been disbursed to another property agent under regulation 8(2)(a) , to the property agent holding the trust money for the matter; or

(ii) if the records relate to an active matter and trust account money held in respect of the matter has been disbursed under regulation 8(2)(b) , to a property agent; or

(iii) if the records relate to an active matter and no trust account money is held in respect of the matter, to a property agent; or

(iv) if the records relate to a closed matter but the records cannot be disposed of under regulation 25 , to a property agent or to the Board; or

(b) if the records relate to a closed matter and the records can be disposed of under regulation 25 , dispose of those records in accordance with that regulation.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A property agent that receives trust account records under subregulation (1) for an active matter must notify the client in writing that –

(a) the property agent is holding the records; and

(b) the client must authorise, in writing, a new property agent to act on the client's behalf in the matter.

(3)  A trust account record that is given to a property agent under subregulation (1) is taken to be a trust account record kept by the property agent.

Division 13 - Miscellaneous

27.   Notice of trust account

(1)  Within 7 days after opening a trust account, a property agent must give the Board written notice of –

(a) the name of the approved institution where the trust account was opened; and

(b) the branch of the approved institution; and

(c) the name and number of the account.

Penalty:  Fine not exceeding 50 penalty units.

(2)  Within 7 days after closing a trust account, a property agent must give the Board written notice of the closure of the account by reference to the name and number of the account.

Penalty:  Fine not exceeding 50 penalty units.

28.   Trust account reports

(1)  In this regulation –

reporting period means –

(a) the period of 6 months ending on 30 June each year; or

(b) the period of 6 months ending on 31 December each year.

(2)  If a property agent keeps a trust account at any time during the reporting period, the property agent must –

(a) complete a written report on the trust account in accordance with this regulation; and

(b) give the report to the Board within one month after the end of the reporting period to which the report relates.

Penalty:  Fine not exceeding 50 penalty units.

(3)  A trust account report must include the following information:

(a) a statement by the property agent making the report that the property agent made all possible enquiries to ensure that the information provided is true and correct;

(b) a statement as to whether the trust account was reconciled in accordance with regulation 21 for each month during the reporting period in which the trust account was kept;

(c) a statement as to whether a schedule of invested trust money was prepared, if required, in accordance with regulation 22 during the reporting period;

(d) a statement as to whether the trust account was overdrawn or had any overdrawn balances, or had any unexplained credit balances, at any time during the reporting period;

(e) a statement as to whether the property agent making the report drew any commission from, or made any other payment out of, the trust account without the written authority of the parties to the transaction to which the trust money relates;

(f) a statement as to whether the trust account was kept at an approved institution reported to the Board under regulation 27(1) .

(4)  The Board may approve the form of the report under this regulation.

(5)  A report must not be false or misleading.

(6)  The report must be signed by –

(a) if the property agent is a natural person who carries on business on his or her own account, the property agent; or

(b) if the property agent is a natural person who carries on business in partnership with another property agent, a partner of the partnership; or

(c) if the property agent is a general auctioneer and a body corporate, a director of the body corporate; or

(d) if the property agent is a real estate agent, or a property manager, and a body corporate, a director of the body corporate who is individually named in the Register as a real estate agent or a property manager.

PART 3 - Investing Trust Money

29.   Investment of trust money

A property agent must not invest trust money unless –

(a) the parties to the transaction to which the trust money relates agree in writing to the investing of the trust money; and

(b) the trust money is invested in the joint names of the parties; and

(c) the trust money is invested in accordance with that written agreement.

Penalty:  Fine not exceeding 50 penalty units.

PART 4 - Audit and Inspection

Division 1 - Audits

30.   Interpretation

In this Division, unless the contrary intention appears –

audit year means the period of 12 calendar months ending on 30 June each year;

prescribed period, in relation to a property agent who dies or a person who ceases to carry on the business of a property agent in any audit year, means the period from immediately after the end of the previous audit year to the day in the audit year on which the person dies or ceases to carry on the business.

31.   Trust account records to be audited

(1)  A property agent must cause the trust account records kept by the property agent in an audit year to be audited by an auditor within 3 months after the end of the audit year.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A person who ceases to carry on the business of a property agent must cause the trust account records kept by the person in respect of the prescribed period to be audited by an auditor within 3 months after the end of the prescribed period.

Penalty:  Fine not exceeding 50 penalty units.

(3)  If a property agent dies, the property agent's personal representative must cause the trust account records kept by the property agent in respect of the prescribed period to be audited by an auditor within –

(a) three months after the end of the prescribed period; or

(b) such later period as the Board may allow.

Penalty:  Fine not exceeding 50 penalty units.

(4)  The Board, at any time and at its own expense, may cause the trust account records of a property agent, a property agent who has died or a person who has ceased to carry on the business of a property agent to be audited by an auditor.

(5)  It is a defence to an offence –

(a) under subregulation (1) if the property agent carries on business in partnership with one or more other property agents; or

(b) under subregulation (2) if the person, before ceasing to carry on the business of a property agent, carried on business in partnership with one or more other property agents; or

(c) under subregulation (3) if the deceased property agent, before his or her death, carried on business in partnership with one or more other property agents –

and another property agent in the partnership has caused the trust account records of the business to be audited.

32.   Exemptions

(1)  Regulation 31(1) does not apply in respect of trust account records kept by a property agent in an audit year if the property agent has given a declaration in an approved form to the Board stating that the property agent did not receive or hold trust money during the audit year.

(2)  Regulation 31(2) does not apply in respect of trust account records kept by a property agent who ceases to carry on the business of a property agent if the property agent has given a declaration in an approved form to the Board stating that the property agent did not receive or hold trust money during the prescribed period.

(3)  Regulation 31(3) does not apply in respect of trust account records kept by a deceased property agent prior to his or her death if the personal representative of the deceased property agent has given a declaration stating that the deceased property agent did not receive or hold trust money during the prescribed period.

(4)  A declaration under this regulation is to be given to the Board –

(a) in the case of a property agent carrying on the business of a property agent, within –

(i) 3 months after the end of the audit year; or

(ii) a longer period as determined by the Board; and

(b) in the case of a person who ceases to carry on the business of a property agent, or a property agent who dies, within –

(i) 3 months after the end of the prescribed period; or

(ii) a longer period as determined by the Board.

33.   Conduct of audits

(1)  This regulation applies to a property agent who –

(a) appoints an auditor to carry out an audit under regulation 31(1) , (2) or (3) ; or

(b) is subject to an audit under regulation 31(4) .

(2)  At all times during business hours, a property agent must –

(a) allow an auditor access to the trust account records; and

(b) allow the auditor to make notes and copies of, and take extracts from, any such trust account records; and

(c) provide any information or explanation that the auditor requires to complete the audit; and

(d) provide such assistance as the auditor reasonably requires for the purpose of the audit.

Penalty:  Fine not exceeding 50 penalty units.

(3)  A person must not –

(a) fail to comply with a reasonable request of an auditor in relation to an audit; or

(b) wilfully obstruct, hinder or delay the performance of an audit; or

(c) threaten or attempt to intimidate an auditor; or

(d) give, or agree or offer to give, any gift, reward or other inducement for the auditor to do or abstain from doing anything in relation to the audit; or

(e) knowingly give false or misleading information or documents to an auditor; or

(f) conceal any information or record that relates to the trust account records that are being audited.

Penalty:  Fine not exceeding 50 penalty units.

34.   Completion of audits

(1)  An auditor performing an audit under this Part must complete the audit –

(a) in the case of an audit in respect of the trust account records of a property agent, within 3 months after the end of the audit year to which the audit relates; or

(b) in the case of an audit in respect of the trust account records of a person who ceases to carry on the business of a property agent, or a deceased property agent, within –

(i) 3 months after the end of the prescribed period; or

(ii) such longer period as the Board has allowed; or

(c) in the case of an audit under regulation 31(4) , within the period specified by the Board for its completion.

Penalty:  Fine not exceeding 50 penalty units.

(2)  It is a defence to an offence under subregulation (1) if the auditor proves that –

(a) he or she requested access to the trust account records; and

(b) the property agent, person or personal representative did not provide access to the trust account records in sufficient time for the auditor to comply with subregulation (1) .

35.   Audit report

(1)  As soon as practical after completing an audit under this Part, the auditor must give to the person who appointed him or her –

(a) the audit report; and

(b) a copy of the audit report certified by the auditor to be a true copy of the audit report.

(2)  The audit report is to be in a form approved by the Board and is to state, in the opinion of the auditor, whether –

(a) the trust account records being audited were properly drawn up and kept in accordance with the Act; and

(b) there is any defect or irregularity in the trust account records; and

(c) the amount in each trust account after being reconciled under regulation 21 and the amount of trust money invested under regulation 29 were sufficient to meet all the trust account liabilities at the end of the period being audited; and

(d) the auditor obtained all the information, documents, explanations and assistance that he or she required to complete the audit; and

(e) the requirements of the Act in respect of trust money and the keeping of trust accounts have been complied with.

(3)  If the auditor finds that the requirements of the Act in respect of trust money and the keeping of accounts have not been complied with fully, the auditor must specify in the audit report the matters in respect of which the Act has not been complied with fully.

36.   Irregularity report by auditor

(1)  An auditor must give a report to the Board as soon as practicable after discovering one or more of the following irregularities:

(a) the trust account records being kept in a manner that prevents them from being properly audited;

(b) something that appears to the auditor to involve dishonesty or a breach of the law;

(c) a deficiency of trust money in the trust account or ledger account;

(d) a failure to pay or account for trust money;

(e) a failure to comply with the provisions of the Act relating to the keeping of trust accounts.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A report under subregulation (1) is to –

(a) specify the details of each irregularity discovered by the auditor; and

(b) be signed by the auditor.

(3)  The auditor is to also provide a signed copy of the report under subregulation (1) to the property agent whose trust account records are being audited.

37.   Audit report to be given to Board

A person who appoints an auditor to carry out an audit under this Part must give the audit report to the Board within 7 days after receiving it from the auditor.

Penalty:  Fine not exceeding 20 penalty units.

Division 2 - Inspections

38.   Interpretation

In this Division –

authorised officer means a person authorised by the Board under regulation 39 ;

record means any account or record that refers to, or relates to, trust money held by a property agent.

39.   Authorised officers

The Board may authorise a person or persons to inspect the records of a property agent.

40.   Inspection of records

(1)  An authorised officer may do all or any of the following to ascertain whether the provisions of the Act are being, or have been, complied with:

(a) enter, at a reasonable time, any premises where records are kept;

(b) require the person who appears to be in charge of the premises to produce for inspection any record held at the premises;

(c) inspect and take notes of, copies of or extracts from any such record;

(d) require the person who appears to be in charge of the premises to answer questions or give explanations;

(e) require the person who appears to be in charge of the premises to explain where records are being held.

(2)  An authorised officer may require that a record be transcribed into clearly written English if the record –

(a) is not in writing; or

(b) is not in English; or

(c) is in such a condition as to make the record unreadable.

(3)  A person must not –

(a) fail to comply with a reasonable requirement of an authorised officer in relation to an inspection; or

(b) wilfully obstruct, hinder or delay an authorised officer; or

(c) threaten or attempt to intimidate an authorised officer; or

(d) give, or agree or offer to give, any gift, reward or other inducement for the authorised officer to do or abstain from doing anything in relation to an inspection; or

(e) knowingly give false or misleading information or documents to an authorised officer; or

(f) conceal any information or record from an authorised officer.

Penalty:  Fine not exceeding 50 penalty units.

PART 5 - Property Agents Trust

41.   Accounts and reports

(1)  The Trust is to keep financial statements for all of its transactions.

(2)  By 30 March in each year, the Trust is to prepare the financial statements for the immediately preceding year ending on 31 December and have those statements audited by an auditor.

(3)  Within one month after receiving the financial statements of the Trust, the auditor must –

(a) report to the Trust whether, in his or her opinion, the requirements of the Act in respect of the handling of money by the Trust have been complied with or have not been complied with fully; and

(b) if the auditor finds that the requirements of the Act have not been complied with fully, specify in the audit report –

(i) the matters in respect of which there has not been full compliance; and

(ii) the extent of the non-compliance.

(4)  Within 7 days after receiving the audit report, the Trust is to give a copy of the audit report to –

(a) the Minister; and

(b) the Board.

PART 6 - Miscellaneous

42.   Qualifications

(1)  [Regulation 42 Subregulation (1) substituted by S.R. 2008, No. 92, Applied:20 Aug 2008] For the purposes of section 64(1)(a) of the Act, the prescribed educational qualification is –

(a) a Diploma of Property (Real Estate) awarded by a registered training organisation within the meaning of the Vocational Education and Training Act 1994 ; or

(b) a qualification that the Board is satisfied is substantially equivalent to the qualification prescribed in paragraph (a) .

(2)  [Regulation 42 Subregulation (2) amended by S.R. 2009, No. 184, Applied:23 Dec 2009] For the purposes of section 17B(2)(a) of the Act, the qualification required for a property consultant is –

(a) if the person has been validly employed as a property consultant at some time within the previous 2 years, employment as a property consultant; or

(b) [Regulation 42 Subregulation (2) amended by S.R. 2007, No. 31, Applied:30 May 2007] successful completion of an examination for property consultants administered by the Board.

(3)  [Regulation 42 Subregulation (3) amended by S.R. 2009, No. 184, Applied:23 Dec 2009] For the purposes of section 17A(2)(a) of the Act, the qualification required for an assistant property manager is –

(a) if the person has been validly employed as an assistant property manager at some time within the previous 2 years, employment as an assistant property manager; or

(b) [Regulation 42 Subregulation (3) amended by S.R. 2007, No. 31, Applied:30 May 2007] successful completion of an examination for assistant property managers administered by the Board.

43.   Obligation of partners

If a property agent carries on business in partnership with another property agent, each partner in the partnership must perform the obligations imposed by these regulations unless otherwise specified.

44.   Fees

(1)  In this regulation and Schedule 1  –

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth;

required date, in relation to a fee required to be paid by a person, means –

(a) the date on which the name of the person was entered into the Register; or

(b) the anniversary of that date.

(2)  The fees specified in this regulation and Schedule 1 are GST inclusive.

(3)  The fees specified in Schedule 1 are prescribed as the fees payable in respect of the matters to which they respectively relate.

(4)  If a real estate agent named in Part 1, Division (1) of the Register, or a property manager named in Part 2, Division (1) of the Register, is found to have paid less than the annual registration fee required to be paid, he or she must pay to the Board an amount that is twice the difference between the amount paid and the amount required to be paid.

45.   Code of Conduct

[Regulation 45 Inserted by S.R. 2007, No. 111, Applied:01 Dec 2007]

(1)  For the purposes of section 82 of the Act, the Code of Conduct is set out in Schedule 2 .

(2)  For the purposes of section 82(8) of the Act, the prescribed date from which the Code of Conduct is to have effect is 7 December 2007.

SCHEDULE 1 - Fees

Regulation 44

PART 1 - General

PART 2 - Annual Registration

SCHEDULE 2 - Code of Conduct

Regulation 45

PART 1 - Preliminary

1.   Definitions

(1) For the purposes of this Code of Conduct –

Act means the Property Agents and Land Transactions Act 2005 ;

regulations means the Property Agents and Land Transactions Regulations 2006 .

(2) A term used in this Code that is defined in the Act or the regulations has the same meaning as so defined.

2.   Meaning of client

For the purposes of this Code of Conduct –

(a) a person who is a client of a real estate agent is also a client of any property consultant or assistant property manager employed or engaged by that real estate agent; and

(b) a person who is a client of a property manager is also a client of any assistant property manager employed or engaged by that property manager.

3.   Contravention of Act, regulations or Code

Without limiting what may constitute unsatisfactory professional conduct or professional misconduct, if a property agent contravenes a provision of the Act, the regulations or this Code of Conduct, that contravention may constitute unsatisfactory professional conduct or professional misconduct.

4.   Attempt to do an act

If a property agent attempts to do an act which, if successfully completed, would constitute a contravention of a provision of the Act, the regulations or this Code of Conduct, that attempt may constitute unsatisfactory professional conduct or professional misconduct.

PART 2 - Supervision of Employees

5.   Supervision of employees and persons engaged by agent

(1) A real estate agent, property manager or general auctioneer who is in effective or nominal control of business premises –

(a) is to diligently supervise the work of all other persons employed or engaged by him or her to work at those premises and is to ensure that they understand and comply with the Act, the regulations and this Code of Conduct; and

(b) while being permitted to delegate tasks to other persons so employed or engaged to work at those premises, must not delegate the responsibility for any aspect of the work undertaken at those premises.

(2) For the purposes of this clause –

business premises means a place where a property agent carries on business as a real estate agent, property manager or general auctioneer.

PART 3 - Duties to Client

6.   Responsibility of property agent to client

A property agent must at all times accept that his or her first responsibility is service to the client whom he or she represents and, while serving the interests of the client, must act fairly, honestly and in a reasonable manner towards all other persons in connection with the client's business.

7.   Information disclosure

A property agent –

(a) must not disclose information relating to the affairs of a client obtained while acting for the client unless the client consents in writing to the disclosure or the agent is required by law to make the disclosure; and

(b) must not use, in a manner prejudicial to a client's interests, information obtained while acting for the client unless the client consents in writing to the use; and

(c) must perform his or her duties to a client and carry out a client's lawful instructions; and

(d) must exercise due skill, care and diligence in carrying out his or her duties for a client; and

(e) must inform the client if, in his or her opinion, the price the client is prepared to accept on the listing of property is less than the fair market value of that property; and

(f) must ascertain all pertinent facts concerning a transaction undertaken for a client so as to avoid error, exaggeration or misrepresentation and, if any information is ascertained which is unknown to the client, must disclose that information to the client as soon as practicable; and

(g) must not, in respect of any transaction undertaken for a client –

(i) knowingly, by his or her conduct, convey to the client, or allow to be conveyed to the client, a false or misleading impression about any matter concerning the transaction; or

(ii) knowingly make to the client a statement or representation which is false or misleading; and

(h) must not engage in harsh or unconscionable conduct in the course of his or her dealings with a client.

8.   Acceptance of, or demand for, payment

A property agent –

(a) must not accept or demand payment from a person other than the client in respect of work undertaken or to be undertaken for the client, being work in respect of which payment has been received from the client or for which the client is liable to pay; and

(b) must not accept or demand, or negotiate or attempt to negotiate, payment for work undertaken or to be undertaken for the client that exceeds the amount agreed; and

(c) when a client is a purchaser or lessee, must not demand or attempt to negotiate payment from the vendor or lessor.

9.   Advertising and marketing

A property agent –

(a) [Part 3 of Schedule 2 Amended by S.R. 2008, No. 163, Applied:17 Dec 2008] must not erect a sign –

(i) if erected on private property other than the property being sold, that has not been authorised by the owner of the property on which the sign is erected; or

(ii) that contravenes any applicable law, regulation, by-law or planning scheme; and

(b) must not publish, or cause to be published, an advertisement which indicates that a client has given the authority for his or her property to be sold at a higher or lower price than the price authorised by the client unless the client has consented in writing.

10.   Conflicts of interest, rights and responsibilities

(1) A property agent –

(a) must not accept an appointment to act, or continue to act, for a client where to do so would place the agent's interests in conflict with that of the client; and

(b) in respect of the same property, must not have as clients both vendor and purchaser or both lessor and lessee; and

(c) before obtaining a prospective client's signature to an agency agreement, must clearly explain to the prospective client his or her rights and responsibilities in respect of the agreement; and

(d) when a written offer to purchase a property is received from a prospective purchaser, must present the offer to the client as soon as possible; and

(e) when a prospective purchaser's written offer is presented to a client, must, as soon as possible, inform the prospective purchaser whether the client has accepted or rejected the offer; and

(f) must not disclose to a prospective purchaser particulars of any other offers to purchase the property.

(2) For the purposes of subclause (1)(c)  –

agency agreement has the same meaning as in section 18(10) of the Act.

11.   Second Commission

(1) A property agent who knows that another property agent has an agency agreement with a vendor must not introduce a purchaser to the vendor's property without advising the vendor that, in the event of the sale of that property to that purchaser, the vendor may incur a second commission.

(2) For the purposes of subclause (1)  –

agency agreement has the same meaning as in section 18(10) of the Act; and

introduce means, in the case of –

(a) a residential property, the physical inspection of a residence with a prospective purchaser; or

(b) a commercial property, the provision of documents to, or the commencement of discussions with, a prospective purchaser; or

(c) a rural property, the bringing to the notice of a prospective purchaser the availability of the property for purchase.

PART 4 - Unsatisfactory Professional Conduct and Professional Misconduct

12.   Unsatisfactory professional conduct

Examples of behaviour that might constitute unsatisfactory professional conduct include, but are not limited to –

(a) a property agent unreasonably delaying the completion of work for a client; and

(b) a property agent not acting in the best interests of a client, unless it is unlawful to do so; and

(c) a property agent marketing, or advertising for sale, purchase, exchange or lease, a property at a price or on terms different from the price or terms authorised by the client; and

(d) a property agent offering to sell, purchase, exchange or lease on behalf of a client a property at a price or on terms different from the price or terms authorised by the client; and

(e) a property agent not keeping a client informed of any significant development or issue in relation to the property; and

(f) a property agent misrepresenting a prospective purchaser's intention to the vendor in order to have the vendor renew a sole or exclusive agency agreement or enter into an agreement with the agent to conduct a marketing campaign; and

(g) a property agent engaging in high-pressure tactics or harassment in the conduct of his or her property agency business; and

(h) a property agent not keeping himself or herself informed and up-to-date about the Act, the regulations, this Code of Conduct and any other legislation which affects the business of the property agent.

13.   Professional misconduct

Examples of behaviour that might constitute professional misconduct include, but are not limited to –

(a) a property agent seriously neglecting or excessively delaying the completion of work for a client; and

(b) a property agent charging fees or costs which are, in the circumstances, grossly excessive; and

(c) a property agent consistently or substantially failing to reach reasonable standards of competence and diligence; and

(d) a property agent grossly contravening his or her fiduciary obligations as a property agent; and

(e) a property agent not acting honestly, or acting fraudulently; and

(f) a property agent consistently contravening the Act, the regulations or this Code of Conduct.

Note: For further information please refer to the Guide to the Code of Conduct published by the Board and available on its website at www.propertyagentsboard.com.au

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 29 November 2006

These regulations are administered in the Department of Justice.