Property Agents and Land Transactions Act 2005
An Act to regulate certain auction and real estate practices, to regulate property agents, to provide for the disclosure of information by vendors of land and for cooling-off periods for vendors and purchasers in respect of residential property and to repeal the Auctioneers and Real Estate Agents Act 1991
[Royal Assent 15 December 2005]
Be it enacted by His 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 1Preliminary1Short titleThis Act may be cited as the Property Agents and Land Transactions Act 2005 . 2CommencementThe provisions of this Act commence on a day or days to be proclaimed. 3Interpretation (1) In this Act, unless the contrary intention appears – 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 National Institute of Accountants in Australia; approved institution means an authorised deposit-taking institution mentioned in section 162(2) ; assistant property manager means a person who has the qualifications required by the regulations to be employed by a property manager named in Part 2(1) of the Register – (a) to negotiate the leasing or letting of property; and (b) to collect rents for property that is leased or let; and (c) to manage property that is leased or let – but does not include a person who has been suspended or disqualified by the Board from being employed as an assistant property manager; auditor means a person who – (a) is a member of the Australian Society of Certified Practising Accountants, the Institute of Chartered Accountants in Australia or the National Institute of Accountants in Australia; and (b) meets the requirements of one of those bodies to practise as a public accountant; 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 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 established under section 70 ; 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 82 ; company means a body corporate wherever incorporated; conveyancer has the same meaning as in the Conveyancing Act 2004 ; 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; functions includes powers and duties; general auctioneer means a person named in Part 3 of the Register; general auctioneering business means business as an auctioneer where the property auctioned does not include land; Guarantee Fund or "Fund" means the fund as continued in existence by section 164(1) under the name Property Agents Guarantee Fund; 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 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; 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, an assistant property manager or a property consultant; property agents industry means the business carried on by property agents; property consultant means a person who has the qualifications required by the regulations to be employed by a real estate agent to induce or attempt to induce, or negotiate with a view to inducing, people to do all or any of the following: (a) acquire or dispose of property or a business; (b) make an offer to acquire or dispose of property; (c) make an offer to acquire or dispose of a business; (d) enter into a contract for the acquisition or disposal of property; (e) enter into a contract for the acquisition or disposal of a business – but does not include a person who has been suspended or disqualified by the Board from being employed as a property consultant; property management business means business that includes carrying out 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 named in Part 2 of the Register; public auction means an auction that has been publicly advertised; real estate agency business means business that includes carrying out 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 named in Part 1 of the Register; Register means the Register of Property Agents maintained by the Board under section 56 ; 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; repealed Act means the Auctioneers and Real Estate Agents Act 1991 ; sale means a disposition of property for valuable consideration; scheme of arrangement means a scheme of arrangement mentioned in section 162 ; Tribunal means a Tribunal established in accordance with Division 4 of Part 6 ; Trust means the trust as continued in existence by section 150(1) under the name Property Agents Trust; trust account has the meaning assigned to that expression by section 146 ; trust money has the meaning assigned to that expression by section 144 . (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 2(1) of the Register is a reference to Division (1) of Part 2 of the Register. 4Application of Act (1) This Act, except Part 10 , does not bind the Crown. (2) Nothing in this Act prohibits a person mentioned in subsection (3) from carrying out an activity that is part of real estate agency business or property management business. (3) Those persons are – (a) a liquidator or receiver; or (b) a person who is subject to a guardianship order under the Guardianship and Administration Act 1995 or a continuing care order under section 28 of the Mental Health Act 1996 ; or (c) a trustee company within the meaning of the Trustee Companies Act 1953 ; or (d) a legal practitioner in respect of whom a practising certificate is in force under section 51 of the Legal Profession Act 1993 – exercising functions in that capacity. (4) An accountant need not be registered to carry out an activity that is part of real estate agency business if the activity does not include the sale, management, letting or lease of land. PART 2Real Estate Agents and Property ManagersDivision 1Limits on right to carry on real estate agency business or property management business5Real estate agency business to be carried on by real estate agentA 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 the name of the person appears in Part 1(1) of the Register.Penalty: Fine not exceeding 1 000 penalty units.
6Property management business to be carried on by property managerA 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 the name of the person appears in Part 2(1) of the Register or the person is a real estate agent named in Part 1(1) of the Register.Penalty: Fine not exceeding 1 000 penalty units.
7Management of real estate agency business (1) A real estate agent named in Part 1(1) of the Register must not carry on real estate agency business except at an authorised place of business that is managed by the real estate agent or by 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 place where real estate agency business is carried on unless it is an authorised place of business for that business.Penalty: Fine not exceeding 50 penalty units.
(3) A real estate agent, unless authorised by the Board, must not manage more than one authorised place of business where real estate agency business is carried on.Penalty: Fine not exceeding 50 penalty units.
(4) The Board may authorise a real estate agent to manage not 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 those places of business; and (b) those places of business are all in the same region. (6) For the purposes of subsection (5) – region means the northern region, the north-western region or the southern region. (7) For the purpose of subsection (1) , an authorised place of business where real estate agency business is carried on 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. (8) Despite subsection (1) , if for any reason an authorised place of business of a real estate agent 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 premises to be managed, for such period as the Board is to specify, by a property consultant employed by the agent. 8Management of property management business (1) A property manager named in Part 2(1) of the Register must not carry on property management business except at an authorised place of business that is managed by the property manager or by a property manager named in Part 2(2) of the Register employed by the manager.Penalty: Fine not exceeding 50 penalty units.
(2) A property manager named in Part 2(2) of the Register must not manage a place where property management business is carried on unless it is an authorised place of business for that business. Penalty: Fine not exceeding 50 penalty units.
(3) A property manager, unless authorised by the Board, must not manage more than one authorised place of business.Penalty: Fine not exceeding 50 penalty units.
(4) The Board may authorise a property manager to manage not more than 3 authorised places of business. (5) Before authorising a property manager under subsection (4) , the Board must be satisfied that – (a) the property manager is competent to manage those places of business; and (b) those places of business are all in the same region. (6) For the purposes of subsection (5) – region means the northern region, the north-western region or the southern region. (7) For the purpose of subsection (1) , an authorised place of business where property management business is carried on is being managed by a property manager if the manager, 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. (8) Despite subsection (1) , if for any reason an authorised place of business of a property manager cannot be managed by the property manager or by a property manager 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 an assistant property manager employed by the manager. 9Employment of property managers and assistant property managers (1) A property manager named in Part 2(1) of the Register must not employ a person to carry out the functions of a property manager unless the person’s name appears in Part 2 of the Register and the person is not suspended or disqualified by the Board from being employed by a property manager to carry out those functions.Penalty: Fine not exceeding 500 penalty units.
(2) A property manager named in Part 2(1) of the Register must not employ a person to carry out the functions of an assistant property manager unless – (a) the person has the qualifications required by or under this Act to be an assistant property manager; and (b) the person has caused to be published in a newspaper published in the State and circulating generally in the State a notice, in a form approved by the Board, stating that the person intends to be employed as an assistant property manager; and (c) the person is not suspended or disqualified by the Board from being an assistant property manager. Penalty: Fine not exceeding 500 penalty units.
(3) A notice referred to in subsection (2)(b) is to contain a statement that a person (the "objector") may, within 14 days after the publication of the notice, object to the employment as an assistant property manager of the person specified in the notice, by giving written notice of objection to the Board and to the person who caused the notice to be published. (4) The written notice of objection is to contain the name and address of the objector and the grounds of objection. (5) A person must not, by any means, hold himself or herself out as being a property manager or an assistant property manager employed by a property manager named in Part 2(1) of the Register unless the person is a property manager or an assistant property manager employed by the property manager.Penalty: Fine not exceeding 500 penalty units.
10Employment of property consultants by real estate agents (1) A real estate agent named in Part 1(1) of the Register must not employ a person to carry out the functions of a property consultant on behalf of the agent unless – (a) the person has the qualifications required by or under this Act to be a property consultant; and (b) the person has caused to be published in a newspaper published in the State and circulating generally in the State a notice, in a form approved by the Board, stating that the person intends to be employed as a property consultant; and (c) the person is not suspended or disqualified by the Board from being a property consultant. Penalty: Fine not exceeding 500 penalty units.
(2) A notice referred to in subsection (1)(b) is to contain a statement that a person (the "objector") may, within 14 days after the publication of the notice, object to the employment as a property consultant of the person specified in the notice, by giving written notice of objection to the Board and to the person who caused the notice to be published. (3) A person must not, by any means, carry out, or hold himself or herself out as qualified or prepared to carry out, any of the functions of a property consultant unless the person – (a) has the qualifications required by or under this Act to be a property consultant; and (b) is acting as a property consultant for a real estate agent by whom the person is employed. Penalty: Fine not exceeding 500 penalty units.
(4) A person must not, by any means, hold himself or herself out as being a property consultant employed by a real estate agent unless the person is a property consultant employed by the agent.Penalty: Fine not exceeding 500 penalty units.
11Limitations on employees of real estate agents (1) This section applies to – (a) a real estate agent who is employed by another real estate agent to manage a branch of that agent’s real estate agency business; and (b) a property manager or an assistant property manager employed by a real estate agent in the agent’s real estate agency business; and (c) a property consultant 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.
12Limitations on employees of property managers (1) This section applies to a property manager or an assistant property manager 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.
13Real estate agent to keep record of certain employees (1) This section applies to a real estate agent named in Part 1(1) of the Register. (2) Where the agent employs a person – (a) to manage an authorised place of business where the agent carries on real estate agency business; or (b) to carry out any of the property management functions of that business; or (c) to carry out any of the property consultant functions of that business – the agent must enter details of the person in a register kept by the agent for the purpose.Penalty: Fine not exceeding 50 penalty units.
(3) The details to be entered in the register are – (a) the name and address of the person employed; and (b) the capacity in which the person is employed; and (c) the date on which the person commenced employment with the agent; and (d) in the case of a person employed as a property consultant, his or her relevant qualifications. (4) If the agent ceases to employ a person whose details are entered in the register, the agent must – (a) record when the person ceased to be employed by the agent; and (b) if requested to do so by the Board, provide the Board with written details of the reason why the person ceased to be employed by the agent. Penalty: Fine not exceeding 50 penalty units.
(5) The agent must include in the register the date when the register was started and the date of each entry in it.Penalty: Fine not exceeding 50 penalty units.
(6) The agent must make the register available to the Board at any time upon request.Penalty: Fine not exceeding 50 penalty units.
14Property manager to keep record of certain employees (1) This section applies to a property manager named in Part 2(1) of the Register. (2) Where the property manager employs a person, including another property manager or an assistant property manager – (a) to manage an authorised place of business where the manager carries on property management business; or (b) to carry out any of the property management functions of that business – the manager must enter the name and address of the person in a register kept by the manager for the purpose.Penalty: Fine not exceeding 50 penalty units.
(3) If the property manager ceases to employ a person named in the register, the manager must – (a) record when the person ceased to be employed by the manager; and (b) if requested to do so by the Board, provide the Board with written details of the reason why the person ceased to be employed by the manager. Penalty: Fine not exceeding 50 penalty units.
(4) The property manager must include in the register the date when the register was started and the date of each entry in it.Penalty: Fine not exceeding 50 penalty units.
(5) The property manager must make the register available to the Board at any time upon request.Penalty: Fine not exceeding 50 penalty units.
15Limitation on employment of certain people by real estate agents (1) Except with the consent of the Board, a real estate agent named in Part 1(1) of the Register must not engage in any capacity a person who is disqualified or suspended by the Board from being employed by such a real estate agent.Penalty: Fine not exceeding 500 penalty units.
(2) The Board is to keep a register of people to whom subsection (1) applies and is to make it available to real estate agents mentioned in that subsection. 16Limitation on employment of certain people by property managers (1) Except with the consent of the Board, a property manager named in Part 2(1) of the Register must not engage in any capacity a person who is disqualified or suspended by the Board from being employed by such a property manager.Penalty: Fine not exceeding 500 penalty units.
(2) The Board is to keep a register of people to whom subsection (1) applies and is to make it available to property managers mentioned in that subsection. 17Limitation on employment of certain people by general auctioneers (1) Except with the consent of the Board, a general auctioneer named in Part 3 of the Register must not engage in any capacity a person who is disqualified or suspended by the Board from being employed by such an auctioneer.Penalty: Fine not exceeding 500 penalty units.
(2) The Board is to keep a register of people to whom subsection (1) applies and is to make it available to general auctioneers mentioned in that subsection. Division 2Remuneration of real estate agents and property managers18Appointment of real estate agents to be in writing (1) 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. (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 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 client, and how those expenses are to be recouped; and (e) clearly sets out how either party to the agreement may terminate the appointment and any conditions subject to which it may be terminated. (3) 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 (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 real estate agent must not – (a) demand any valuable consideration in contravention of subsection (1) ; 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.
(6) Any valuable consideration received by a real estate agent in contravention of subsection (1) or (5) is recoverable as a debt by the person from whom the real estate agent received it. (7) Insofar as a written appointment mentioned in subsection (1) – (a) is not an agency agreement; and (b) contains no period for its termination agreed by the parties to the agreement – it may be terminated by either party giving to the other 30 days’ written notice of termination. (8) Insofar as a written appointment mentioned in subsection (1) is an agency agreement, it is not valid for a period exceeding 90 days beginning on the day on which the relevant disclosure documents, or the last of the disclosure documents, referred to in section 190 have been supplied by the vendor to the real estate agent. (9) However, subsection (8) 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. (10) 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. 19Appointment 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 and any conditions subject to which it may be terminated. (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) , whether or not expressed to be for a fixed period, may be terminated by either party giving to the other 30 days’ written notice of termination. 20Property agent to disclose any benefits (1) Except as provided by subsection (3) , 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 receive as a result of that appointment. Penalty: Fine not exceeding 500 penalty units.
(2) If a property agent fails to comply with subsection (1) – (a) any fee or other amount that the agent may otherwise have been entitled to receive from the person for whom the agent is engaged to act is not payable; and (b) any such fee or amount paid may be recovered in a court of competent jurisdiction as a debt due to the person who made the payment. (3) Subsection (1) does not apply to a benefit worth $100 or less. (4) In this section – benefit includes commission. 21Fees not recoverable in certain circumstances (1) A person is not entitled to bring an action to recover any valuable consideration for services provided by the person in the capacity of a real estate agent named in Part 1(1) of the Register unless the person was such a real estate agent both when engaged to act as a real estate agent and when acting as a real estate agent. (2) A real estate agent is not entitled to bring an action to recover any valuable consideration for services performed by the agent in the course of any real estate agency business carried on by the agent unless the agent has furnished to the person against whom the action is to be brought a written statement setting out details of those services and the amount claimed in respect of each service. (3) A person is not entitled to bring an action to recover any valuable consideration for services provided by the person in the capacity of a property manager carrying on property management business unless the person was a property manager named in Part 2(1) of the Register both when engaged to act as a property manager and when acting as a property manager. (4) A property manager is not entitled to bring an action to recover any valuable consideration for services performed by the property manager in the course of carrying on property management business unless the property manager has furnished to the person against whom the action is to be brought a written statement setting out details of those services and the amount claimed in respect of each service. Division 3Offences in respect of property agents22Conflict of interest – acquisition of property (1) A real estate agent or a person employed or engaged by a real estate agent must not acquire or attempt to acquire, directly or indirectly, an interest in property that the agent is instructed to sell. Penalty: Fine not exceeding 500 penalty units.
(2) A real estate agent is guilty of an offence if a person employed or engaged by the agent acquires or attempts to acquire, directly or indirectly, an interest in property that the agent is instructed to sell. Penalty: Fine not exceeding 500 penalty units.
(3) A director or similar officer of a real estate agent that is a company must not acquire or attempt to acquire, directly or indirectly, an interest in property that the agent is instructed to sell. Penalty: Fine not exceeding 500 penalty units.
(4) A real estate agent that is a company is guilty of an offence if a director or similar officer of the company acquires or attempts to acquire, directly or indirectly, an interest in property that the agent is instructed to sell. Penalty: Fine not exceeding 500 penalty units.
(5) It is a defence for a person charged with an offence under subsection (1) , (2) , (3) or (4) for the person to show that the acquisition was made with the written approval of the owner of the property given before negotiations for the acquisition of the interest were entered into and after a full disclosure of all the relevant facts by the person seeking the approval. (6) A person is guilty of an offence under subsection (1) , (2) , (3) or (4) if the person acquired the interest either in the course of business or in a private capacity. (7) Without prejudice to the generality of subsections (1) , (2) , (3) and (4) , a person is taken to acquire an interest in property for the purposes of any of those subsections if an interest in the property is acquired by or on behalf of a relative of the person. (8) It is a defence for a person charged with an offence under subsection (1) , (2) , (3) or (4) for the person to show that – (a) the person acted honestly and reasonably; and (b) the person who sold the property is in substantially as good a position as if the provisions of the subsection had been complied with. (9) A real estate agent must not, directly or indirectly, demand, receive or hold any valuable consideration in respect of a transaction in which the agent, a person employed or engaged by the agent, or a director or similar officer of the agent has acquired an interest in property in contravention of this section. (10) A court before which a person has been convicted of an offence under this section is to order – (a) the person to pay to the vendor of the property any profit that was made, or, in the court’s opinion, is likely to be made, from the acquisition of the property or from any related transaction; and (b) that any commission or other valuable consideration received or held by a real estate agent in contravention of subsection (9) be paid to the vendor of the property. 23Conflict of interest – sale of property (1) A real estate agent must not, in the course of business as a real estate agent, sell or attempt to sell, directly or indirectly, an interest in property owned by – (a) the real estate agent; or (b) a person employed or engaged by the real estate agent; or (c) where the real estate agent is a company, a director or similar officer of the company; or (d) a relative of a person mentioned in paragraph (a) , (b) or (c) – unless a full disclosure of all the relevant facts is made before the sale or the attempt to sell.Penalty: Fine not exceeding 500 penalty units.
(2) A court before which a real estate agent has been convicted of an offence under subsection (1) is to order that the agent pay to any purchaser of the property any profit that, in the court’s opinion, was made but would not have been made if there had been a full disclosure of all the relevant facts. (3) It is a defence for a person charged with an offence under subsection (1)(d) for the person to show that he or she could not reasonably have known that a person was a relative of a person mentioned in paragraph (a) , (b) or (c) of subsection (1) . 24Franchising agreements (1) In this section – franchising agreement means an agreement that permits a real estate agent to carry on real estate agency business on the condition that another person who is entitled to carry on real estate agency business (whether in Tasmania or elsewhere) receives any valuable consideration. (2) If a real estate agent carries on real estate agency business pursuant to a franchising agreement – (a) each party to the agreement is guilty of an offence under section 145 if the real estate agent fails to comply with that section; and (b) the parties to the agreement are each liable if criminal or fraudulent conduct in the course of the real estate agency business causes pecuniary or property loss to another person. (3) A real estate agent carrying on real estate agency business under a franchising agreement must include the name of the franchisee on the premises from which the agent carries on that business. 25Notice to be displayed by real estate agents (1) A real estate agent must display at each authorised place of business, in a conspicuous position where it may be easily read, a notice stating the agent’s name and the fact that the agent is a real estate agent.Penalty: Fine not exceeding 50 penalty units.
(2) If a real estate agent ceases to carry on real estate agency business at an authorised place of business, the agent must remove or obliterate the notice as soon as practicable. Penalty: Fine not exceeding 50 penalty units.
26Notice to be displayed by property managers (1) A property manager named in Part 2(1) of the Register must display at each authorised place of business, in a conspicuous position where it may be easily read, a notice stating the manager’s name and the fact that the manager is a property manager.Penalty: Fine not exceeding 50 penalty units.
(2) If a property manager ceases to carry on property management business at an authorised place of business, the manager must remove or obliterate the notice as soon as practicable. Penalty: Fine not exceeding 50 penalty units.
27Requirements of advertisements by real estate agentsA real estate agent who publishes an advertisement in connection with his or her real estate agency business must ensure that the advertisement contains the real estate agent’s name and the address of his or her authorised place of business.Penalty: Fine not exceeding 50 penalty units.
28Requirements of advertisements by property managersA property manager named in Part 2(1) of the Register who publishes an advertisement in connection with his or her property management business must ensure that the advertisement contains the property manager’s name and the address of his or her authorised place of business.Penalty: Fine not exceeding 50 penalty units.
29False advertising, &c., by real estate agents (1) A real estate agent must not publish information that the agent knows – (a) falsely states that particular property is to be sold or leased or that a particular business is to be sold or leased; or (b) contains a false or misleading statement or representation in respect of property that is or is stated to be available for purchase or lease, or a business that is or is stated to be available for purchase or lease. Penalty: Fine not exceeding 500 penalty units.
(2) In proceedings for an offence under subsection (1) , proof of the publication of information that represents a specified person to be a real estate agent is evidence that the person published the information. 30False advertising, &c., by property managers (1) A property manager named in Part 2(1) of the Register must not publish information that the manager knows – (a) falsely states that a particular property is managed by the manager; or (b) contains a false or misleading statement or representation in respect of the property that is or is stated to be available for letting. Penalty: Fine not exceeding 500 penalty units.
(2) In proceedings for an offence under subsection (1) , proof of the publication of information that represents a specified person to be a property manager is evidence that the person published the information. 31Name under which real estate agents may carry on business (1) Except as provided by subsection (2) , a real estate agent must not carry on real estate agency business except under the name of the agent or, where agents are carrying on business in partnership, the names of the agents.Penalty: Fine not exceeding 50 penalty units.
(2) The Board may authorise a real estate agent, or agents carrying on business in partnership, to carry on real estate agency business under a name in addition to, or in substitution for, the name of the agent or agents. (3) Where subsection (2) applies, the Board is to include the authorised name in the entry in the Register in respect of the agent or agents. (4) Subsection (2) is subject to the Business Names Act 1962 . 32Name under which property managers may carry on business (1) Except as provided by subsection (2) , a property manager named in Part 2(1) of the Register must not carry on property management business except under the name of the property manager or, where property managers are carrying on business in partnership, the names of the managers.Penalty: Fine not exceeding 50 penalty units.
(2) The Board may authorise a property manager or managers carrying on business in partnership to carry on property management business under a name in addition to, or in substitution for, the name of the manager or managers. (3) Where subsection (2) applies, the Board is to include the authorised name in the entry in the Register in respect of the manager or managers. (4) Subsection (2) is subject to the Business Names Act 1962 . PART 3AuctionsDivision 1Control of general auctioneering business33General auctioneering business to be carried on by general auctioneer or real estate agent (1) A person must not carry on all or any part of general auctioneering business or hold himself or herself out as prepared to do so unless the person is a general auctioneer named in Part 3 of the Register or a real estate agent named in Part 1(1) of the Register.Penalty: Fine not exceeding 1 000 penalty units.
(2) A person must not conduct a public auction of land unless that person is a real estate agent named in Part 1(1) of the Register or a person employed by such a real estate agent and the auction is conducted as part of the real estate agency business of the agent. Penalty: Fine not exceeding 50 penalty units.
(3) Despite subsections (1) and (2) – (a) a public auction authorised by an Act may be conducted by a person authorised to do so by the Act; and (b) a public auction under a writ or process issued by or out of a court may be conducted by a person authorised to do so by the court; and (c) a public auction, the gross proceeds of which are to be used for a charitable purpose, may be conducted by a person who is not an auctioneer or agent mentioned in subsection (1) – but in each case (whether or not the public auction is being conducted as part of any business) this Part otherwise applies to the auction, and any reference to an auctioneer is to be taken as including a person conducting an auction mentioned in this subsection. 34Management of general auctioneering business (1) A general auctioneer must not carry on general auctioneering business except at an authorised place of business that is managed by the general auctioneer or by a general auctioneer employed by the first-mentioned general auctioneer.Penalty: Fine not exceeding 50 penalty units.
(2) A general auctioneer must not manage a place where general auctioneering business is carried on unless it is an authorised place of business for that business. Penalty: Fine not exceeding 50 penalty units.
35Name under which general auctioneer may carry on business (1) Except as provided by subsection (2) , a general auctioneer must not carry on general auctioneering business except under the name of the auctioneer or, where general auctioneers are carrying on business in partnership, the names of the auctioneers.Penalty: Fine not exceeding 50 penalty units.
(2) The Board may authorise a general auctioneer or auctioneers carrying on business in partnership to carry on general auctioneering business under a name in addition to, or in substitution for, the name of the auctioneer or auctioneers. (3) Where subsection (2) applies, the Board is to include the authorised name in the entry in the Register in respect of the auctioneer or auctioneers. (4) Subsection (2) is subject to the Business Names Act 1962 . 36Notice to be displayed (1) A general auctioneer must exhibit at each authorised place of business, in a conspicuous position where it may be easily read, a notice stating the auctioneer’s name and the fact that the auctioneer is a general auctioneer.Penalty: Fine not exceeding 50 penalty units.
(2) If a general auctioneer ceases to carry on general auctioneering business at an authorised place of business, the auctioneer must remove or obliterate the notice as soon as practicable. Penalty: Fine not exceeding 50 penalty units.
37Requirements of advertisements by general auctioneersA general auctioneer who publishes an advertisement in connection with his or her general auctioneering business must ensure that the advertisement contains the auctioneer’s name and the address of his or her authorised place of business.Penalty: Fine not exceeding 50 penalty units.
38False advertising, &c., by general auctioneers (1) A general auctioneer must not publish information that the auctioneer knows – (a) falsely states that particular property is to be auctioned; or (b) contains a false or misleading statement or representation in respect of property that is or is stated to be available for public auction. Penalty: Fine not exceeding 500 penalty units.
(2) In proceedings for an offence under subsection (1) , proof of the publication of information that represents a specified person to be a general auctioneer is evidence that the person published the information. Division 2Conduct at public auctions39Misrepresentations at public auctionsA general auctioneer offering property for sale by public auction must not knowingly misrepresent the value, composition, structure, character, quality, origin or manufacture of the property. Penalty: Fine not exceeding 500 penalty units.
40Bids by owner at public auction (1) At a public auction of land – (a) the owner of the land must not bid or cause a person to bid on the owner’s behalf; and (b) a person must not bid on behalf of the owner of the land; and (c) the auctioneer conducting the auction must not accept a bid from a person who the auctioneer knows is bidding in contravention of paragraph (a) or (b) . Penalty: Fine not exceeding 500 penalty units.
(2) A person must not procure another person to make a bid that is contrary to subsection (1)(b) .Penalty: Fine not exceeding 500 penalty units.
(3) It is not a defence to a charge for an offence under subsection (1) to prove that the person making the bid was not in Tasmania at the time the bid was made. (4) For the purposes of subsection (1)(b) , a bid may be found to have been made on behalf of an owner even though it was not made at the request of, or with the knowledge of, the owner. (5) Evidence that a person who made a bid at a public auction had the intention of benefiting the owner in making the bid is evidence that the person made the bid on behalf of the owner. (6) It is a defence to a charge for an offence under subsection (1) to prove – (a) that the land that was auctioned was owned by more than one person; and (b) that one or more of those persons was attempting, in good faith, to acquire a greater interest in the land; and (c) that the auctioneer had been advised of the situation by or on behalf of that person before the start of the auction. 41Permissible owner bids (1) Despite section 40 , an auctioneer conducting a public auction of land may make a bid on behalf of an owner of the land if – (a) the conditions under which the auction is conducted permit the making of the bid; and (b) before the bidding starts, the auctioneer orally declares at the auction that the conditions permit the making of the bid; and (c) immediately before or in the process of making the bid, the auctioneer audibly states that the bid is being made on behalf of the owner. (2) A bid mentioned in subsection (1) must be made by the auctioneer personally and not by a person acting on behalf of the auctioneer. (3) It is sufficient compliance with the requirement of subsection (1)(c) to identify a bid as a bid by an owner if the auctioneer states "vendor bid" in making the bid. (4) It is not sufficient compliance with the requirement of subsection (1)(c) to identify a bid as a bid by an owner if the auctioneer merely identifies the owner by name without stating that the bidder is an owner. Penalty: Fine not exceeding 500 penalty units.
42Dummy bidsAn auctioneer conducting a public auction must not appear to acknowledge the making of a bid if no bid was made.Penalty: Fine not exceeding 500 penalty units.
43Offence to falsely acknowledge bidA person at a public auction must not – (a) falsely claim to have made a bid; or (b) falsely acknowledge that he or she made a bid. Penalty: Fine not exceeding 500 penalty units.
44Conditions of public auctions to be made available before auction starts (1) A real estate agent must not conduct a public auction of land unless, a reasonable time before the start of the auction, the agent – (a) has made a copy of the conditions under which the auction is to be conducted available for public inspection; and (b) complies with section 188 . Penalty: Fine not exceeding 50 penalty units.
(2) Subsection (1) is to be taken not to have been complied with unless – (a) the conditions were made available for public inspection at least 7 days before the start of the auction; and (b) their availability was published in such a manner as to bring their availability to the attention of persons likely to attend the auction; and (c) the conditions were also on display for public inspection immediately before the auction at the place where it was to be conducted. 45Right to compensation if Part breachedA purchaser at a public auction who has suffered loss or damage as a result of a failure by any person to comply with a provision of this Part has a right to claim compensation from that person. 46Contrary conditions are voidA condition applying at a public auction that is contrary to, or that purports to restrict or modify a requirement imposed by, this Part is void. 47Last vendor bid to be identified if property passed in (1) This section applies where – (a) a public auction of land is conducted at which any land is not sold; and (b) the last bid made before the public auction stopped was a bid made on behalf of an owner of the land by the auctioneer conducting the auction. (2) In making any statement while marketing the land, a person must not state the amount of the last bid without also stating that the bid was a bid made on behalf of an owner of the land.Penalty: Fine not exceeding 500 penalty units.
(3) For the purposes of subsection (2) , a statement is made by a person while marketing land if it is made by or on behalf of the person – (a) in any information published in respect of the land; or (b) orally or in writing to a prospective purchaser of the land. (4) A person who advises another person of the amount of the last bid to enable the amount to be published must also advise that person that the bid was a bid made on behalf of an owner of the land.Penalty: Fine not exceeding 500 penalty units.
(5) A person who is a publisher of public auction sales results must not publish the fact that any land was passed in for the amount of the last bid without also stating that the bid was a bid made on behalf of an owner of the land.Penalty: Fine not exceeding 500 penalty units.
(6) It is a defence to a charge for an offence under subsection (2) or (5) if the person making the statement, or publishing the amount – (a) was not present at the auction; and (b) relied on a statement made by a person who purported to know what had happened at the auction. (7) It is sufficient compliance with subsection (2) or (5) if the amount is described as a "vendor bid". Division 3Conduct of public and private auctions48Interpretation of Division 3In this Division – auction means a public or private auction. 49Certain bidding agreements unlawful (1) In this section – dealer means a person who in the normal course of business attends auctions to purchase property for resale. (2) A dealer must not give, agree to give or offer a gift or any other consideration to a person as an inducement or reward for abstaining or having abstained from bidding at an auction. Penalty: Fine not exceeding 500 penalty units.
(3) A person must not accept, agree to accept or attempt to obtain from a dealer a gift or any other consideration for abstaining or having abstained from bidding at an auction. Penalty: Fine not exceeding 500 penalty units.
50Collusive practices prohibited at auctions (1) In this section – unlawful promise means a promise, expressed or implied, made by a person that if that person is the successful bidder in respect of property sold at an auction – (a) the person to whom the promise was made will have the right to elect to take over as purchaser through the auctioneer the property, or any part of it, at the auction price; or (b) the ownership of the property, or any part of it, will be decided by a specified method. (2) A person must not, by means of an unlawful promise made to a person at an auction, induce or attempt to induce the person – (a) to abstain from bidding, either generally or for any particular lot; or (b) not to bid, except to a limited extent; or (c) to do any act or thing which may in any way prevent or tend to prevent free and open competition. Penalty: Fine not exceeding 500 penalty units.
(3) A person at an auction must not, as a result of an unlawful promise made to that person – (a) abstain or agree to abstain from bidding, either generally or for any particular lot; or (b) not bid, except to a limited extent; or (c) do or agree to do any other act or thing which may in any way prevent or tend to prevent free and open competition. Penalty: Fine not exceeding 500 penalty units.
51Successful bidder to supply information to auctioneer (1) A person who makes the successful bid at an auction must, as soon as practicable after the acceptance of the bid, give to the auctioneer – (a) his or her name and address if the bid was made on his or her own behalf; or (b) if the bid was made on behalf of another person, the name and address of the other person. Penalty: Fine not exceeding 50 penalty units.
(2) Subsection (1) does not apply if the person who made the successful bid gave the information mentioned in subsection (1)(a) or subsection (1)(b) to the auctioneer before the auction. 52Certain notices to be given at auctionA general auctioneer or real estate agent must not conduct an auction until notice has been given of the relevant and material parts of sections 40 , 42 , 43 , 49 , 50 and 51 in any manner and form approved by the Board.Penalty: Fine not exceeding 50 penalty units.
Division 4Remuneration of general auctioneers53Appointment of general auctioneer to be in writing (1) Except by leave of a court, a general auctioneer is not entitled to sue for, recover or retain any valuable consideration for services provided to a person by the auctioneer in the capacity of a general auctioneer unless the auctioneer has a valid written appointment to act for the person in that capacity that is 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 general auctioneer; and (b) if specific property is the subject of those services, clearly identifies the property; and (c) clearly indicates how any valuable consideration the general auctioneer may receive is to be calculated; and (d) clearly indicates the nature and extent of the expenses the general auctioneer may incur on behalf of the client, and how those expenses are to be recouped. (3) An appointment by a person of a general auctioneer is not a valid appointment of the auctioneer 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 general auctioneer must not – (a) demand any valuable consideration in contravention of subsection (1) ; or (b) demand any valuable consideration from a purchaser of any real property at a public auction conducted by the auctioneer. Penalty: Fine not exceeding 500 penalty units.
(6) Any valuable consideration received by a general auctioneer in contravention of subsection (1) or (5) is recoverable as a debt by the person from whom the general auctioneer received it. 54General auctioneer to disclose any benefits (1) A general auctioneer must disclose to a person for whom the auctioneer is appointed to act – (a) any benefit received by the auctioneer from a third party or given by the auctioneer to a third party in exchange for the referral of business to the auctioneer; or (b) any other benefit that the auctioneer receives or is to receive as a result of that appointment. Penalty: Fine not exceeding 500 penalty units.
(2) If a general auctioneer fails to comply with subsection (1) , any fee or other amount the auctioneer may otherwise have been entitled to receive from the person for whom the auctioneer is engaged to act is not payable and any amount paid may be recovered in a court of competent jurisdiction as a debt due to the person who made the payment. (3) Subsection (1) does not apply to a benefit worth $100 or less. 55Fees not recoverable in certain circumstances (1) A person is not entitled to bring an action to recover any valuable consideration for services provided by the person in the capacity of a general auctioneer unless the person was a general auctioneer both when engaged to act as a general auctioneer and when acting as a general auctioneer. (2) A general auctioneer is not entitled to bring an action to recover any valuable consideration for services performed by the auctioneer in the course of any general auction business carried on by the auctioneer unless the auctioneer has furnished to the person against whom the action is to be brought a written statement setting out details of those services and the amount claimed in respect of each service. PART 4Registration and qualificationsDivision 1Registration56Board to maintain Register (1) The Board is to maintain a Register of Property Agents. (2) The Register is to be divided into 3 Parts. (3) Those Parts are to be – (a) Part 1 – Real Estate Agents, which is to contain the name and address of each real estate agent; and (b) Part 2 – Property Managers, which is to contain the name and address of each property manager; and (c) Part 3 – General Auctioneers, which is to contain the name and address of each general auctioneer who may carry on general auctioneering business. (4) The Register may be kept in any form that permits its contents to be readily inspected in a legible form by any member of the public in accordance with section 61 . 57Part 1 of Register (1) Part 1 of the Register is to be divided into – (a) Division (1), which is to contain the name and address of each person who is carrying on real estate agency business and show, in addition, the address of each place where that person is carrying on that business and the name under which that person is doing so; and (b) Division (2), which is to contain the names and addresses of all other such persons and any other information approved by the Board. (2) Where 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 address of each of the directors of the company who is a real estate agent. 58Part 2 of Register (1) Part 2 of the Register is to be divided into – (a) Division (1), which is to contain the name and address of each person who is carrying on property management business and show, in addition, the address of each place where that person is carrying on that business and the name under which that person is doing so; and (b) Division (2), which is to contain the names and addresses of all other such persons and any other information approved by the Board. (2) Where a property manager named in Part 2 is a company, the entry in respect of the manager is also to contain the name and address of each of the directors of the company who is a property manager. 59Part 3 of Register (1) Part 3 of the Register, which is to contain the name and address of each person who is carrying on general auctioneering business, is to show, in addition, the address of each place where that person may carry on that business and the name under which that person may do so. (2) Where 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 address of each of the directors of the company who is a general auctioneer. 60Application for registration (1) The Board is to enter the name of a person in the appropriate Part of the Register if – (a) the person makes an application to the Board accompanied by the prescribed fee and evidence sufficient to prove the qualifications of the person to be registered; and (b) the Board is satisfied that the person has those qualifications and is a fit and proper person to be a property agent; and (c) in the case of a person who intends to have his or her name entered in Part 3 of the Register, the person has caused to be published in a newspaper published in the State and circulating generally in the State a notice, in a form approved by the Board, stating that the person intends to have his or her name entered in Part 3 of the Register. (2) A notice referred to in subsection (1)(c) is to contain a statement that a person (the "objector") may, within 14 days after the publication of the notice, object to the entry in Part 3 of the Register of the name of the person causing the notice to be published (the "applicant"), by giving written notice of objection to the Board and to the applicant. (3) The written notice of objection is to contain the name and address of the objector and the grounds of objection. (4) The Board may request an applicant to produce further evidence to satisfy the Board that the applicant is qualified to be registered or is a fit and proper person to be a property agent. (5) A person is not a fit and proper person to be registered in Part 1(1), Part 2(1) or Part 3 of the Register if the person – (a) is an undischarged bankrupt; or (b) 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. (6) Where the applicant is a company, it is not a fit and proper person to be registered if it – (a) is in receivership or in liquidation; or (b) has taken proceedings for voluntary winding-up (except for the purpose of reorganisation); or (c) has a winding-up order made in respect of it by the Supreme Court; or (d) has a director, manager, secretary or other similar officer who is disqualified or suspended from being a property agent by virtue of section 121 . (7) Subsections (5) and (6) do not prejudice the ability of the Board to determine that a person is not a fit and proper person to be registered as a property agent on any other grounds. 61Board to make Register available for public inspectionThe Board is to make the Register available for public inspection at all reasonable times. 62Property agent may apply for licence (1) A person named in the Register may apply for a licence. (2) An application for a licence is to be made to the Board and is to be accompanied by the prescribed fee and evidence sufficient to satisfy the Board that the person is a person entitled to the licence. (3) A licence is conclusive evidence that at the date of its issue – (a) the name of the person named in the licence was in the Register; and (b) that name was entered in the Part of the Register specified in the licence. 63Certificates of employment (1) A person employed as a property agent by a person named in the Register may apply to the person named in the Register for a certificate of employment. (2) A certificate under subsection (1) – (a) is to be in a form approved by the Board; and (b) is conclusive evidence that the person named in the certificate is employed by the person named in the Register. Division 2Qualifications64Qualifications for registration as real estate agent (1) The name of a person, not being a company, may be entered in Part 1 of the Register if the person – (a) has the prescribed educational qualifications; and (b) has been engaged full-time as a property manager or property consultant for a total period of at least 2 years during the 5-year period immediately preceding the application for registration. (2) The name of a person may also be entered in Part 1 of the Register if the person’s name has been in the Register at any time during the 5-year period immediately preceding the application for registration. (3) The name of a person may also be entered in Part 1 of the Register if the person – (a) 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 the business of a real estate agent in that State or Territory; and (b) has been engaged full-time as a real estate agent 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 application for registration; and (c) except in the case of a company, has satisfied the Board, by examination or inquiry, that he or she has sufficient knowledge and experience of real estate agency business to be able to carry on that business. (4) The name of a company may be entered in Part 1 of the Register if at least one of its directors or a person holding a similar position in the company is also named in that Part. 65Qualifications for registration as property manager (1) The name of a person, not being a company, may be entered in Part 2 of the Register if the person 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. (2) The name of a company may be entered in Part 2 of the Register if at least one of its directors or a person holding a similar position in the company is also named in that Part. 66Qualifications for registration as general auctioneer (1) The name of a person may be entered in Part 3 of the Register if the person 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. (2) The name of a company may be entered in Part 3 of the Register if at least one of its directors or a person holding a similar position in the company is also named in that Part. 67Continuing education (1) Despite any other provision of this Division to the contrary, a person ceases to be qualified to continue to be named in the Register unless, within a period specified by the Board, the person has undertaken any continuing education course specified by the Board. (2) A person named in Part 1(1), Part 2(1) or Part 3 of the Register must maintain a register containing details of the continuing education undertaken in accordance with subsection (1) by the person and by any relevant employee.Penalty: Fine not exceeding 50 penalty units.
(3) The person referred to in subsection (2) must make the register available to the Board upon being requested by the Board.Penalty: Fine not exceeding 50 penalty units.
Division 3Period of validity of registration68Period of validity of registration (1) Except as otherwise provided by this Division, if the name of a person has been entered in the Register, it remains in the Register – (a) if the person pays the prescribed annual registration fee when it becomes due; and (b) if the Board remains satisfied that the person continues to have the qualifications required to be named in the Register. (2) The Board is to remove the name of a person from the Register if – (a) the person asks the Board to do so; or (b) the Board is required to do so by or in accordance with this Act; or (c) the Board is satisfied that the person has ceased to be qualified to continue to be named in the Register; or (d) the person fails to pay any prescribed annual registration fee within 30 days after it became due for payment. (3) Despite any other provision of this Division, if a person named in Part 1(1), Part 2(1) or Part 3 of the Register dies, the personal representatives of that person are to be taken to be named in the Register for one year from the death of the person. 69Effect of suspension of registrationWhile the registration of a person is suspended, the person is to be taken as not being named in the Register for the purposes of this Act. PART 5Property agents boardDivision 1Establishment of Board70Property Agents Board established (1) There is established a Board called the Property Agents Board. (2) 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. (3) 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. 71Membership of Board (1) The Board consists of 5 members appointed by the Governor. (2) Two of the members are to be property agents who have at least 5 years’ experience as property agents. (3) One of the members referred to in subsection (2) is to be a person nominated by the body that the Minister is satisfied represents the views of the majority of property agents and the other is to be a person nominated by the Minister. (4) A further 2 members are to be people nominated by the Minister who are not property agents. (5) The remaining member, who is to be the Chair of the Board, is to be a legal practitioner of at least 5 years’ standing who has legal experience in areas of law relevant to the position. (6) A member may be appointed for a term not exceeding 3 years, which is to be specified in the member’s instrument of appointment and, if eligible, may be reappointed. (7) A person may accept appointment as a member of the Board and any remuneration payable to a member despite the fact that the person is the holder of an office under an Act that requires the holder of the office to devote the whole of his or her time to the duties of the office. (8) The State Service Act 2000 does not apply in relation to a member in his or her capacity as a member of the Board. 72Conditions of appointment to Board (1) A member of the Board is to receive remuneration and allowances determined by the Minister, which are to be specified in the member’s instrument of appointment. (2) Although a person may be a member of the Board in conjunction with State Service employment, a member who is a State Service officer or State Service employee is not entitled to any remuneration or allowances as a member of the Board unless the Minister administering the State Service Act 2000 decides otherwise. 73Vacancy in Board membership (1) A person ceases to be a member of the Board if the person – (a) dies; or (b) resigns by written notice given to the Minister; or (c) is removed from office under subsection (3) or (4) ; or (d) ceases to possess any qualification the member was required to possess to be appointed a member of the Board. (2) A person ceases to be a member of the Board if the person’s term of appointment ends and the person is not reappointed. (3) The Governor may terminate the appointment of a person as a member of the Board if the member – (a) is absent from 3 consecutive meetings of the Board without the Board’s approval; or (b) becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with the member’s creditors or makes an assignment of the member’s remuneration or estate for their benefit; or (c) is convicted, in Tasmania or elsewhere, of a crime or an offence punishable by imprisonment for a term exceeding 12 months; or (d) fails, without reasonable excuse, to comply with the member’s obligation under this Act to disclose an interest; or (e) is convicted of an offence against this Act. (4) The Governor may also terminate the appointment of a person as a member of the Board if the Governor is satisfied that the member is unable to perform, or is not performing adequately or competently, the duties of a member of the Board. 74Validity of actions by Board (1) Anything done by the Board or by a person acting on the direction of the Board is not invalid despite the fact that at the time it was done the Board had less than 5 members. (2) Anything done by the Board or by a person acting on the direction of the Board is not invalid despite the fact that it is later discovered – (a) that at the time the action was taken there was a defect in the appointment of a member; or (b) that a member did not possess or had ceased to possess the qualifications required to be appointed to be a member of the Board. 75Presumptions in respect of BoardIn proceedings by or against the Board, proof is not required of its constitution, of the appointment of its members, of any resolution of the Board or of the presence of a quorum at a meeting of the Board unless evidence is given that calls the matter into question. Division 2Meetings of Board76Meetings of Board (1) The Chair of the Board may convene a meeting of the Board at any time and is to do so if so requested by at least 2 other members of the Board. (2) The Chair convenes a meeting of the Board by giving reasonable notice of the time and place of the meeting to the other members of the Board. (3) If at any time there is no Chair of the Board or if the Chair is unable to perform the duties of Chair, a meeting of the Board may be convened by 2 or more members of the Board giving reasonable notice of the time and place of the meeting to the other members of the Board. 77Presiding at meetings of Board (1) The Chair of the Board is to preside at meetings of the Board at which the Chair is present. (2) If at the time of a meeting of the Board there is no Chair of the Board or if the Chair is not present, the members present are to elect one of their number to preside. 78Procedure at meetings of Board (1) A meeting of the Board has a quorum if 3 members are present and if one of them is a property agent and another member is not a property agent. (2) Such a meeting of the Board may transact any business of the Board. (3) A question at a meeting of the Board is to be decided by a majority of votes of the members present and voting, with the member presiding having only a deliberative vote. (4) On an equality of votes on a question, the question stands adjourned until the next meeting of the Board unless sooner withdrawn by the member who moved the question. (5) The Board is to keep accurate minutes of its meetings. (6) Except as otherwise provided by this Act, the Board may regulate the conduct of its business. (7) The Board may, in particular, allow a member to participate in a meeting of the Board by telephone, by video conferencing or by any other means approved by the Board, and, in such a case, determine that the member is present at the meeting for the purpose of this Part. (8) A meeting of the Board is not to be open to the public, but the Board may allow a person to attend a meeting if it is satisfied that it is appropriate to do so. (9) The Board is to determine the way in which its decisions are to be published. (10) It may determine that all or any part of a decision is not to be published where to do so might reveal – (a) privileged information or information communicated to the Board in confidence; or (b) information that concerns a person’s personal affairs, finances or business arrangements. 79Interests to be disclosed by Board members (1) This section applies to a member of the Board who has or acquires an interest (whether pecuniary or otherwise) that would conflict with the proper performance of the member’s functions in relation to a matter being considered, or about to be considered, by the Board. (2) The member must, as soon as practicable after the relevant facts come to the member’s knowledge, disclose the nature of the interest to the Board. (3) Except with the approval of the Board, the member must not – (a) be present during any deliberation of the Board in relation to the matter; or (b) take part in a decision of the Board in respect of the matter. (4) The member must not be present when the Board is considering whether to give its approval under subsection (3) . 80Indemnity (1) An action does not lie against a member, employee or agent of the Board or against a member of a committee established by the Board for an act or omission by the member, employee or agent, or by the Board or a committee, in good faith and in the exercise or purported exercise of a function under this Act. (2) A person who, in good faith, makes a complaint under Part 6 does not incur personal liability for loss, damage or injury that another person suffers as a result of the complaint being made. Division 3Duty of Board81Duty of Board (1) It is the duty of the Board – (a) to maintain the Register in accordance with this Act to ensure that only people who have the necessary experience and qualifications to do so, and are not otherwise unfit to do so, are permitted to act as property agents; and (b) to administer the approval of qualifications held by people to ensure that only those that have the prescribed qualifications to do so, and are not otherwise unfit to do so, are permitted to act as property agents; and (c) to ensure that property agents comply with the requirements of this Act relating to their conduct in carrying on their businesses or in carrying out their functions and, where they fail to do so, to take appropriate disciplinary action to protect the public and to discourage such conduct; and (d) to ensure that people who are not permitted under this Act to do so do not act as property agents; and (e) to develop and ensure compliance with a Code of Conduct for property agents; and (f) to receive, investigate and determine complaints against property agents; and (g) to supervise the trust accounts of real estate agents named in Part 1(1) of the Register, property managers named in Part 2(1) of the Register and general auctioneers named in Part 3 of the Register; and (h) to advise property agents on appropriate standards of conduct; and (i) to monitor, identify and report to the Minister trends and issues that emerge within the property agents industry; and (j) to carry out educational functions in relation to the property agents industry; and (k) 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; and