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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Real Estate Reform Review and Other
Matters) Bill 2012
A BILL FOR
An Act to amend the Conveyancers
Act 1994, the Land
Agents Act 1994 and the Land
and Business (Sale and Conveyancing) Act 1994.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment provisions
Part 2—Amendment of Conveyancers
Act 1994
4Amendment of section 31—Indemnity
fund
Part 3—Amendment of Land Agents
Act 1994
5Amendment of section 29—Indemnity
fund
6Amendment of section 47—Disciplinary
action
Part 4—Amendment
of Land and Business (Sale and Conveyancing) Act 1994
7Amendment of
section 3—Interpretation
8Amendment of section 4—Meaning of small
business
9Amendment of section
5—Cooling-off
10Amendment of section 9—Verification of
vendor's statement
11Substitution of section
11
11Agent or auctioneer to make
statements available before auction
12Amendment of section
13A—Prescribed notice to be given to purchaser
13Amendment of section
20—Authority to act as agent
14Amendment of section 21—Requirements
relating to offers to purchase residential land
15Amendment of section
24A—Representations as to likely selling price in marketing residential
land
16Substitution of section
24I
24IStandard conditions
of auction for residential land
17Amendment of section
24J—Preliminary actions and records required for auctions of residential
land
18Amendment of section 24K—Registered
bidders only at auctions of residential land
19Amendment of section
27—Preparation of conveyancing instrument for fee or reward
20Amendment of
section 28—Preparation of conveyancing instrument by agent or related
person
21Amendment of section 29—Procuring or
referring conveyancing business
22Amendment of section 30—Conveyancer not
to act for both parties unless authorised by regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Real Estate Reform
Review and Other Matters) Act 2012.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Conveyancers
Act 1994
4—Amendment
of section 31—Indemnity fund
(1) Section 31(2)(a)—after "with this Act" insert:
, compliance with the Land
and Business (Sale and Conveyancing) Act 1994 by
conveyancers
(2) Section 31(2)(b)—after "this Act" insert:
or for alleged offences by conveyancers against the Land
and Business (Sale and Conveyancing) Act 1994;
(3) Section 31(2)(f)—delete paragraph (f) and substitute:
(f) the payment of amounts, approved by the Minister, towards the cost
of—
(i) prescribed educational programs conducted for the benefit of
conveyancers or members of the public; or
(ii) reviewing the operation of this Act or the operation of the Land
and Business (Sale and Conveyancing) Act 1994 insofar as it relates
to conveyancers;
Part 3—Amendment
of Land Agents
Act 1994
5—Amendment
of section 29—Indemnity fund
(1) Section 29(4)(a)—after "with this Act" insert:
, compliance with the Land
and Business (Sale and Conveyancing) Act 1994 by agents or sales
representatives
(2) Section 29(4)(b)—after "this Act" insert:
or for alleged offences by agents or sales representatives against the
Land
and Business (Sale and Conveyancing) Act 1994;
(3) Section 29(4)(f)—delete paragraph (f) and substitute:
(f) the payment of amounts, approved by the Minister, towards the cost
of—
(i) prescribed educational programs conducted for the benefit of agents,
sales representatives or members of the public; or
(ii) reviewing the operation of this Act or the operation of the Land
and Business (Sale and Conveyancing) Act 1994 insofar as it relates
to agents or sales representatives;
6—Amendment
of section 47—Disciplinary action
(1) Section 47(1)—delete "On the hearing" and
substitute:
Subject to subsection (1a), on the hearing
(2) Section 47—after subsection (1) insert:
(1a) If the person to whom the complaint relates has been found guilty of
a prescribed offence and the circumstances of the offence form, in whole or in
part, the subject matter of the complaint, the Court must, by order, cancel any
registration of the person and disqualify the person from being so registered
unless the Court is satisfied on the balance of probabilities, by evidence given
by the person on oath, that the offence was trifling or committed in exceptional
circumstances.
(3) Section 47—after subsection (4) insert:
(5) In this section—
prescribed offence means an offence against
section 24A(2), section 24G(1), (2) or (3) or section 36 of
the Land
and Business (Sale and Conveyancing) Act 1994.
Part 4—Amendment
of Land and Business (Sale and Conveyancing)
Act 1994
7—Amendment
of section 3—Interpretation
Section 3—after the definition of small business
insert:
standard conditions of auction—see
section 24I;
8—Amendment
of section 4—Meaning of small business
Section 4(1)(a)—delete "$200 000" and substitute:
$300 000
9—Amendment
of section 5—Cooling-off
(1) Section 5(2)(c)—delete "facsimile transmission to a
facsimile number" and substitute:
fax or email to a fax number or email address
(2) Section 5(7)(a)—after "land" insert:
other than residential land
10—Amendment
of section 9—Verification of vendor's statement
(1) Section 9(1)(ba)—delete "immediately" and
substitute:
within 48 hours
(2) Section 9(2)(ba)—delete "immediately" and
substitute:
within 48 hours
Section 11—delete the section and substitute:
11—Agent or auctioneer to make statements available
before auction
(1) If land or a small
business is to be offered for sale by auction, the following provisions
apply:
(a) if an agent is
acting on behalf of the vendor in the sale, the agent must ensure
that—
(i) the vendor's
statement is available for perusal by members of the public—
(A) at the office of the agent or auctioneer for at least
3 consecutive business days immediately preceding the auction;
and
(B) at the place at which the auction is to be conducted for at least
30 minutes immediately before the auction commences; and
(ii) all reasonable
steps are taken to give prospective purchasers notice of the times and places at
which the vendor's statement may be inspected before the auction;
(b) if no agent is acting on behalf of the vendor in the sale, the
auctioneer must ensure that the vendor's statement is available for perusal by
members of the public—
(i) at the office of the auctioneer for at least 3 consecutive
business days immediately preceding the auction; and
(ii) at the place at which the auction is to be conducted for at least
30 minutes immediately before the auction commences.
(2) An agent will be
taken to have complied with
subsection (1)(a)(ii)
in relation to a prospective purchaser if the agent or a sales representative
employed by the agent—
(a) incorporates the notice with promotional material for the sale that
the agent or sales representative delivers to the purchaser; or
(b) offers to deliver
the notice, or promotional material for the sale incorporating the notice, to
the purchaser but the purchaser refuses to take it; or
(c) publishes the notice in a prominent position—
(i) in promotional material for the sale on the agent's website or in a
newspaper circulating generally throughout the State or the area in which the
land or business is situated; or
(ii) on the signboard advertising the sale at the land or at the premises
of the small business.
12—Amendment
of section 13A—Prescribed notice to be given to
purchaser
Section 13A(2)—after paragraph (c) insert:
or
(d) in the case of an inspection that is open to the general
public—displays the notice in a prominent position on the land and so as
to indicate to persons inspecting the land that a copy of the notice may be
taken by those persons.
13—Amendment
of section 20—Authority to act as agent
(1) Section 20(1)(a)—delete paragraph (a) and
substitute:
(a) specifies the agent's genuine estimate of the selling price expressed
without any qualifying words or symbols as a single figure; and
(2) Section 20(1)(b)—after "qualifying words" insert:
or symbols
(3) Section 20—delete subsection (2) and
substitute:
(2) An agent must not make a sales agency agreement unless the agent has
first given the vendor—
(a) a written guide, in a form approved by the Commissioner for the
purposes of this section, that explains the vendor's rights and obligations
under such an agreement; and
(b) details of sales of comparable land and any other information on which
the agent will rely in support of his or her estimate of the selling
price.
Maximum penalty: $5 000.
Expiation fee: $315.
(4) Section 20(4)—after "immediately" insert:
, or at a later time within 48 hours as agreed with the vendor or
purchaser,
(5) Section 20(5)—delete subsection (5) and substitute:
(5) Subject to
subsection (5a), the
matters specified or agreed in a sales agency agreement may be varied provided
that the variation is in writing and dated and signed by the parties to the
agreement.
(5a) A sales agency
agreement for the sale of residential land by auction may not be varied by
increasing the amount specified in the agreement as the selling price sought by,
or acceptable to, the vendor.
(6) Section 20(6)—after "immediately" insert:
, or at a later time within 48 hours as agreed with the vendor or
purchaser,
(7) Section 20—after subsection (6) insert:
(6a) A sales agency
agreement may be extended provided that each of the following requirements is
complied with:
(a) the agreement must not be extended more than once;
(b) the period of the extension must not exceed the prescribed number of
days;
(c) the extension must be recorded in writing and dated and signed by the
parties to the agreement no earlier than 14 days before the agreement is
due to expire.
(6b) An agent who has been authorised to act on behalf of a vendor under
this section must ensure that a copy of the record of any extension of the sales
agency agreement is given to the vendor immediately, or at a later time within
48 hours as agreed with the vendor, after it has been signed by the vendor
and delivered to the agent.
Maximum penalty: $5 000.
Expiation fee: $315.
(6c) A vendor may, at any time during a period of extension of a sales
agency agreement, terminate the agreement without specifying a ground for
termination by giving the agent at least 7 days notice in writing of the
termination.
(6d) If a sales agency agreement between a vendor and an agent for the
sale of residential land by auction is terminated before its expiry or is varied
by reducing the duration of the agreement, the vendor must not make a new sales
agency agreement with the same agent for the sale by auction of the same land
specifying, as the selling price sought by, or acceptable to, the vendor, an
amount that is greater than that specified in the agreement before its
termination or variation unless the period specified as the duration of the
agreement before its termination or variation has elapsed.
Maximum penalty: $5 000.
(8) Section 20(9)(a)—after "variation" insert:
or extension
14—Amendment
of section 21—Requirements relating to offers to purchase residential
land
Section 21(2)—delete subsection (2) and
substitute:
(2) If a person
communicates to a sales representative employed by an agent an offer for
residential land that the agent is authorised to sell on behalf of a vendor, the
sales representative—
(a) must take all reasonable steps to have the offer recorded in writing,
in a form containing the details required by the regulations, and signed by the
offeror; and
(b) subject to subsection (5), must not pass the offer on to the
vendor unless it is so recorded and signed; and
(c) must, if the regulations so require, give the offeror a notice in
writing containing the information prescribed by the regulations before the
offeror signs the offer; and
(d) must give a copy of the signed offer to the vendor within
48 hours or at a later time agreed with the vendor; and
(e) must not disclose any details of the offer to a person other than the
vendor or, on request, an authorised officer; and
(f) must enable a copy of the signed offer to be kept as part of the
agent's records.
Maximum penalty: $5 000.
Expiation fee: $315.
15—Amendment
of section 24A—Representations as to likely selling price in marketing
residential land
(1) Section 24A(1)(c)—delete "or likely price range"
(2) Section 24A(1)(d)(i)—delete "as a single figure at the time
of the representation, or, if that estimate is expressed in the agreement at
that time as a price range, the lower limit of that range" and
substitute:
at the time of the representation
(3) Section 24A(2)—delete subsection (2) and
substitute:
(2) In marketing
residential land that an agent is authorised to sell on behalf of a vendor, the
agent or a sales representative employed by the agent must comply with the
following:
(a) if the agent or sales representative makes a representation as to a
likely price for the land—
(i) the price must be expressed as a single figure without any qualifying
words or symbols; and
(ii) the price must not be less than the prescribed minimum advertising
price;
(b) if the agent or sales representative makes a representation as to a
likely price range for the land—
(i) the price range must be expressed using 2 single figures in
combination only with such words or symbols as are necessary to denote a
range1 with the first figure constituting the
lower limit of the range and the second figure constituting the upper limit of
the range; and
(ii) the lower limit of the range must not be less than the prescribed
minimum advertising price; and
(iii) the upper limit of the range must not exceed 110% of the lower limit
of the range.
Note—
1 For example, "between $340 000 and $360 000", "from
$340 000 to $360 000" or "$340 000 - $360 000".
Maximum penalty: $20 000 or imprisonment for 1 year.
(3) An agent must not demand, receive or retain commission or expenses in
respect of the sale of land if the agent or a sales representative employed by
the agent has failed to comply with a requirement of
subsection (2) in
marketing the land on behalf of the vendor.
Maximum penalty: $5 000.
(4) Commission or expenses received or retained by an agent in
contravention of this section may be recovered, as a debt, from the agent by the
person by whom it was paid.
16—Substitution
of section 24I
Section 24I—delete the section and substitute:
24I—Standard conditions of auction for residential
land
(1) The regulations may prescribe conditions (standard conditions of
auction) that will apply as contractual conditions to any auction
conducted by an agent for the sale of residential land.
(2) The standard conditions of auction will be binding as
between—
(a) the vendor and the purchaser; and
(b) the vendor and the auctioneer; and
(c) the bidders and the auctioneer.
17—Amendment
of section 24J—Preliminary actions and records required for auctions of
residential land
Section 24J(1)(b)—delete paragraph (b) and
substitute:
(b) the auctioneer must, immediately before the auction commences, audibly
announce to members of the public attending the auction that the standard
conditions of auction (as required to be made available for perusal before the
auction) apply to the auction as binding contractual conditions;
(ba) the reserve price for the land must not, at any time before or during
the auction, be set at an amount exceeding 110% of the amount specified in the
sales agency agreement as the selling price sought by, or acceptable to, the
vendor;
18—Amendment
of section 24K—Registered bidders only at auctions of residential
land
(1) Section 24K(1)(a)(ii)—delete "an identifying number" and
substitute:
a unique identifier (comprising a number, letter, colour or some other
identifying feature)
(2) Section 24K(1)(a)(ii)—delete "the identifying number" and
substitute:
the unique identifier
(3) Section 24K(1)(b)—delete "identifying number" and
substitute:
unique identifier
19—Amendment
of section 27—Preparation of conveyancing instrument for fee or
reward
Section 27, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $20 000.
20—Amendment
of section 28—Preparation of conveyancing instrument by agent or related
person
Section 28, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $20 000.
21—Amendment
of section 29—Procuring or referring conveyancing
business
(1) Section 29(1), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $20 000.
(2) Section 29(2), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $20 000.
(3) Section 29(3), penalty provision—delete the penalty
provision and substitute:
Maximum penalty: $20 000.
22—Amendment
of section 30—Conveyancer not to act for both parties unless authorised by
regulations
Section 30, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $20 000.