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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Property, Stock and Business Agents
Amendment (Underquoting Prohibition)
Bill 2015
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The objects of this Bill are as follows:
(a) to require a real estate agent to include in an agency agreement for the sale of residential
property the agent's reasonable estimate of the likely selling price of the property (the
estimated selling price), and to provide evidence for that estimate to the vendor,
(b) to ensure that the estimated selling price remains a reasonable estimate of the likely selling
price of the property (including provision for the revising of the estimated selling price if
required),
(c) to prohibit the publishing of advertisements in relation to residential property:
(i) that state a selling price that is less than the estimated selling price, or
(ii) that offer a property for sale by reference to "offers above", "offers over" or any other
similar statement,
(d) to prohibit a real estate agent, or an agent's employee, from representing to a buyer or
prospective buyer a likely selling price that is less than the estimated selling price for the
property and to provide for a court to order that any fees or commission payable to the agent
in relation to the sale of such a property are to be forfeited to the Property Services
Compensation Fund,
(e) to require a real estate agent to keep a record of any quotes given by the agent in the course
of marketing a residential property.
b2015-037.d18
Property, Stock and Business Agents Amendment (Underquoting Prohibition) Bill 2015 [NSW]
Explanatory note
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or days to be appointed
by proclamation.
Schedule 1 Amendment of Property, Stock and Business
Agents Act 2002 No 66
Schedule 1 [2] replaces sections 72 and 73 of the Property, Stock and Business Agents Act 2002
with proposed sections 72-73B.
Proposed section 72 defines certain terms and phrases that are used in the proposed sections.
Proposed section 72A gives effect to the object set out in paragraphs (a) and (b) of the Overview
above.
Proposed section 73 gives effect to the object set out in paragraph (c) of the Overview above.
Proposed section 73A gives effect to the object set out in paragraph (d) of the Overview above.
Proposed section 73B gives effect to the object set out in paragraph (e) of the Overview above.
Schedule 1 [1] and [3] make consequential amendments.
Schedule 1 [4] and [5] make provision for matters of a savings or transitional nature.
Page 2
First print
New South Wales
Property, Stock and Business Agents
Amendment (Underquoting Prohibition)
Bill 2015
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Property, Stock and Business Agents Act 2002 No 66 3
b2015-037.d18
New South Wales
Property, Stock and Business Agents
Amendment (Underquoting Prohibition)
Bill 2015
No , 2015
A Bill for
An Act to amend the Property, Stock and Business Agents Act 2002 to make further provision with
respect to underquoting by real estate agents; and for other purposes.
Property, Stock and Business Agents Amendment (Underquoting Prohibition) Bill 2015 [NSW]
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Property, Stock and Business Agents Amendment (Underquoting 3
Prohibition) Act 2015. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
Page 2
Property, Stock and Business Agents Amendment (Underquoting Prohibition) Bill 2015 [NSW]
Schedule 1 Amendment of Property, Stock and Business Agents Act 2002 No 66
Schedule 1 Amendment of Property, Stock and Business 1
Agents Act 2002 No 66 2
[1] Section 51 Publishing false or misleading advertisements 3
Omit section 51 (3) (e). Insert instead: 4
(e) disseminated by means of a website, email or other electronic 5
communication. 6
[2] Sections 72-73B 7
Omit sections 72 and 73. Insert instead: 8
72 Definitions 9
(1) In this Division: 10
agency agreement for the sale of residential property, includes an agency 11
agreement for the sale of residential property by auction. 12
estimated selling price for a residential property, means the price or price 13
range specified, under section 72A, in the agency agreement for the sale of the 14
property as the agent's estimate of the likely selling price of the property. 15
publish an advertisement means: 16
(a) insert the advertisement in any newspaper, periodical publication or 17
other publication, or 18
(b) publicly exhibit the advertisement in, on, over or under any building, 19
vehicle or place (whether or not a public place and whether on land or 20
water), or in the air in view of persons being or passing in or on any 21
street or public place, or 22
(c) include the advertisement in any document gratuitously sent or 23
delivered to any person or thrown or left on premises occupied by any 24
person, or 25
(d) broadcast the advertisement by radio or television, or 26
(e) disseminate the advertisement by a website, email or other electronic 27
communication. 28
(2) For the purposes of this Division, a price is less than an estimated selling price 29
that is expressed as a price range if it is lower than the lowest price in the range. 30
(3) For the purposes of this Division, a statement is made in the course of 31
marketing a residential property if the statement is made: 32
(a) in an advertisement, or in arranging an advertisement, in respect of the 33
property that is published or caused to be published by the agent, or 34
(b) to any person (orally or in writing) in connection with the proposed sale 35
of the property. 36
72A Estimated selling price in agency agreement for sale of residential property 37
(1) A real estate agent must not enter into an agency agreement with a person for 38
the sale of residential property unless the agreement includes the agent's 39
estimate of the likely selling price of the property. 40
(2) A real estate agent's estimate of the likely selling price of a property may be 41
expressed as a price range, but only if the highest price in the price range 42
exceeds the lowest price by not more than 10 per cent of the lowest price. 43
Page 3
Property, Stock and Business Agents Amendment (Underquoting Prohibition) Bill 2015 [NSW]
Schedule 1 Amendment of Property, Stock and Business Agents Act 2002 No 66
(3) A real estate agent must ensure that the estimated selling price of a residential 1
property is, and remains, a reasonable estimate of the likely selling price of the 2
property. 3
(4) A real estate agent must ensure that the estimated selling price is revised if it 4
ceases to be a reasonable estimate of the likely selling price of a property, by: 5
(a) notifying the other party to the agency agreement, in writing, of the 6
revised estimated selling price, and 7
(b) amending the agency agreement. 8
(5) A real estate agent must, before or when specifying an estimated selling price 9
or revising an estimated selling price, provide the seller or prospective seller 10
of the property with evidence of the reasonableness of the estimated selling 11
price. 12
(6) A real estate agent who fails to comply with subsection (1), (3), (4) or (5) is 13
guilty of an offence. 14
Maximum penalty: 200 penalty units. 15
73 Underquoting in advertisements for residential property 16
(1) A real estate agent must not publish or cause to be published an advertisement 17
in relation to the sale of a residential property that indicates or suggests a 18
selling price for the property that is less than the estimated selling price for the 19
property. 20
Maximum penalty: 200 penalty units. 21
(2) A real estate agent must not publish or cause to be published an advertisement 22
in relation to the sale of a residential property that includes the phrase "offers 23
above" or "offers over" (or similar symbols or words in any language) a 24
specified selling price or price range. 25
Maximum penalty: 200 penalty units. 26
(3) A real estate agent must, as soon as practicable after revising the estimated 27
selling price for a residential property, take all reasonable steps to amend or 28
retract any advertisement published in relation to the property that includes an 29
advertised selling price for the property that is less than the revised estimated 30
selling price. 31
Maximum penalty: 200 penalty units. 32
73A Underquoting in representations by real estate agents 33
(1) A real estate agent acting pursuant to an agency agreement for the sale of 34
residential property or an agent's employee must not, by a statement made in 35
the course of marketing the property, represent to a buyer or prospective buyer 36
that the property is likely to be sold for a price that is less than the estimated 37
selling price for the property. 38
Maximum penalty: 200 penalty units. 39
(2) In addition to any penalty that it imposes under this section, a court may order 40
that a person found guilty of an offence under this section is to pay to the credit 41
of the Compensation Fund the whole or any part of any fees or commission 42
paid to the real estate agent in relation to the sale of the property concerned. 43
73B Real estate agents to keep record of quotes 44
(1) A real estate agent who makes a statement in the course of marketing a 45
residential property to a buyer, prospective buyer, seller or prospective seller 46
that the property is likely to be sold for a specified price or within a specified 47
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Property, Stock and Business Agents Amendment (Underquoting Prohibition) Bill 2015 [NSW]
Schedule 1 Amendment of Property, Stock and Business Agents Act 2002 No 66
price range, must make a written record of the statement in accordance with 1
subsection (2). 2
Maximum penalty: 200 penalty units. 3
(2) The record of the statement must: 4
(a) contain the address of the property concerned, the price or price range, 5
the date and time of the representation and any other information that is 6
prescribed by the regulations for the purposes of this section, and 7
(b) be kept at the real estate agent's principal place of business for at least 8
3 years. 9
[3] Sections 75 and 76 10
Omit the sections. 11
[4] Schedule 1 Savings and transitional provisions 12
Insert at the end of clause 1 (1): 13
any other Act that amends this Act 14
[5] Schedule 1, Part 5 15
Insert after clause 26: 16
Part 5 Provisions consequent on enactment of Property, 17
Stock and Business Agents Amendment 18
(Underquoting Prohibition) Act 2015 19
27 Definitions 20
In this Part: 21
2015 amending Act means the Property, Stock and Business Agents 22
Amendment (Underquoting Prohibition) Act 2015. 23
existing agency agreement means an agency agreement for the sale of 24
residential property entered into before the commencement of Schedule 1 [2] 25
to the 2015 amending Act. 26
28 Continuation of existing Division 27
Except as provided by clause 29, Division 3 of Part 5 of the Act (as in force 28
immediately before the commencement of Schedule 1 [2] to the 2015 29
amending Act) continues to apply in relation to any act, matter or thing done 30
in accordance with an existing agency agreement. 31
29 Estimated selling price in existing agency agreements for the sale of 32
residential property 33
(1) Sections 73 and 73A (as substituted and inserted, respectively, by the 2015 34
amending Act) extend to any act, matter or thing done after the 35
commencement of those sections in connection with the sale of a residential 36
property in accordance with an existing agency agreement. 37
(2) An estimate of the likely selling price or price range of residential property, 38
however described, specified in an existing agency agreement is, for the 39
purposes of the application of those sections by subclause (1), taken to be an 40
estimated selling price for the property. 41
Page 5
Property, Stock and Business Agents Amendment (Underquoting Prohibition) Bill 2015 [NSW]
Schedule 1 Amendment of Property, Stock and Business Agents Act 2002 No 66
(3) A real estate agent may, in accordance with section 72A (as inserted by the 1
2015 amending Act), revise an amount that is taken to be an estimated selling 2
price. 3
Page 6
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