NSW Fair Trading are out in the field conducting inspections of real estate agents and local businesses. In EAC’s meetings with the government body, as part of the Real Estate Reference group, they share with us what they are finding ‘out there’ and what they’re focusing on.
In a recent visit to Parkes and Forbes in March 2017, all ten real estate offices inspected were found to be in breach of legislation.
During their inspections, NSW Fair Trading are looking at a multitude of things relating to compliance, and it surprises us to hear of the types of breaches as well as the amount of penalty infringement notices and fines being given to agents.
Here are some things that you may want to check in your office.
Real Estate Licences and Certificates of Registration
Let’s start with the basics, with an inspection of licences or certificate of registration for your team. Do you have them all readily available and are they current? For the renewal of a licence or certificate you have to do CPD; have you done the necessary CPD and have the necessary proof? Fair Trading have caught out a number of people who have stated they have done the necessary CPD at the time of renewal, but have not.
Are all your agreements in order, are they signed by the correct person, do they have the correct licence numbers on them, are they in the necessary files?
Despite the amount of information that EAC and others have put out about the legislation changes, agents are still being found to be underquoting.
In summary, you cannot state or publish a price for a property that is less than your reasonable estimate of the property’s likely selling price contained in the agency agreement with the seller. The estimated selling price can be a single figure or a price range. If a price range is used, the highest price must not be more than 10 per cent higher than the lowest price. Advertisements and representations that say “offers over” or “offers above” or any similar statement are not allowed.
What you state in your agency agreement, as to the estimated selling price, may be checked against your market appraisal, your advertising and your communications with consumers including your emails. If your estimated selling price changes, you must amend your agreement with the vendor and EAC Forms. Customers can do so with our Notice To Vendor Of Revised Estimated Selling Price. You should also provide any supporting evidence or an updated market appraisal, while also updating your marketing materials.
In some of the cases that we are aware of, there was blatant underquoting and in others it was just a case of poor paperwork. In simple terms, get your agency agreement right, don’t market the property or provide consumers with prices under the estimated selling price you have in the agency agreement; and if the property sells over this price, even significantly, and there is a complaint made you will not have a problem.
Verifying the Identification of your Vendors
We believe most of the agents that we referred to in Parkes and Forbes received an infringement notice and fine for not doing this. We believe the infringement notice was for a breach of the rules of conduct, and relate to the Real Estate Fraud Prevention Guidelines.
Section 37 of the Property, Stock and Business Agents Act 2002 provides that the regulations may prescribe rules of conduct to be observed in the course of the carrying on of business, or the exercise of functions under a licence or certificate of registration.
If you are not obtaining the necessary proof of identity for your vendors, you must; and if you are not we suggest you start doing so. For more information see the Real Estate Fraud Prevention Guidelines. An Identity Checklist for Vendors form is available to EAC Forms customers, and can be downloaded from our Supplementary Forms page or within eForms.
So what are Fair Trading focusing on over the next few months?
In addition to the above we can advise that NSW Fair Trading will be focusing on the area of Property Management in May and Trust Accounts in June, checking if a Unique Identifying Number has been obtained and attached to the accounts.
NSW Fair Trading can turn up at your office at any time, but are more likely to do so as part of their My Place Program. The My Place Program will be taking place in the following areas during the rest of 2017.
||15 – 19 May
||5 – 9 June
||13 – 16 June
||26 – 30 June
||17 – 21 July
||24 – 28 July
||14 – 18 August
||21 – 25 August
||4 – 8 September
||23 – 27 October
||30 October – 3 November
||6 – 10 November
If you are subject to an inspection and have any questions or are not sure of your position, EAC Members are able to obtain free legal advice from Jemmeson Fisher as part of your membership.