ESTATE AGENT UPDATE – Agents breathe a sigh of relief
By Phillip Leaman
26 June 2018
A recent case in the Victorian Court of Appeal in Advisory Services Pty Ltd v Augustin held that certain rebate statements used by real estate agents were deemed to be invalid and put at risk some agent’s commissions dating back for the last 6 years. The rebate statement was approved by the Consumer Affairs Victoria Director but failed to include statements required by Section 49A of the Estate Agents Act. As a consequence estate agents were not lawfully entitled to retain the commission paid by vendors under such authorities.
However, the Victorian Government has introduced into Parliament new legislation to deal with the issue. The Justice Legislation Miscellaneous Amendment Bill 2018 provides that any rebate statement which was approved by the Director of Consumer Affairs Victoria will be deemed to be compliant with Section 49A even if that rebate statement did not include the relevant statement required by that provision. The bill also attempts to prevent any Vendor (apart from Augustin) from taking any action against an estate agent in respect to the defective rebate statements even if proceedings had already been issued.
The announcement of the bill being introduced will be welcomed by estate agents. However, it is a timely reminder of the importance for estate agents to ensure that their authorities comply with the strict requirements of the Estate Agents Act and not to simply rely on precedent templates provided by the REIV or Consumer Affairs Victoria. It is important that estate agents get legal advice from experts in estate agent law and ensure that they do all that is necessary to protect their commission and comply with their statutory obligations.
The Bill will not assist any estate agent who continues to use the defective rebate statement after the bill becomes law. Therefore, it is critical for a review to be undertaken of all authorities and to ensure that each authority moving forward is compliant with the Act.