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This guide is designed to assist owners corporation managers
to understand their obligations under the
Agents Act 2003 (ACT).
MARCH 2012
OFFICE OF REGULATORY SERVICES
Obligations of Owners Corporation Managers
ii
Office of Regulatory Services
The Office of Regulatory Services (ORS) was formed to provide a single coordinated approach to regulation and
enforcement of a number of activities previously provided by several areas of the ACT Government.
The ORS encompasses the functions of the:
− Office of Fair Trading
− Registrar-General’s Office
− ACT WorkCover
− Parking Operations
− Parking Review.
The ORS brings together capability from across the government to undertake licensing, registration and
accreditation, dispute resolution and consumer and trader assistance, compliance and enforcement/litigation
and education.
The ORS is responsible for administration of approximately 70 pieces of legislation and supports a number of
committees.
The ORS currently comprises the following units
− Fair Trading
− Business and Industry Licensing
− Births, Deaths and Marriages
− Land Titles
− Rental Bonds
− WorkCover
− Parking Operations
− Parking Review
− Transport Regulation
Disclaimer
While reasonable steps have been taken to ensure the information in this guide is accurate, you should not
rely solely on that information and no liability will be accepted for any loss or damage if you do so. This is a
guide only and does not take the place of sound legal advice. You should seek legal advice if you need
assistance in relation to your particular circumstances.
If you need interpreting help, telephone:
− Translating and Interpreting Service – 131 450.
Copyright
© Australian Capital Territory, Canberra 2012
This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be
reproduced by any process without written permission from Office of Regulatory Services, Department of
Justice and Community Safety, ACT Government, GPO Box 158, Canberra ACT 2601.
Enquiries about this publication should be directed to the Office of Regulatory Services on (02) 6207 3000
Obligations of Owners Corporation Managers
Contents
INTRODUCTION
.......................................................................1
DEFINITIONS...........................................................................2
OWNERS CORPORATION MANAGERS.........
......................................4
APPOINTMENT
........................................................................5
CODE OF CONDUCT
..................................................................7
LICENSING
REQUIREMENTS
..........................................................9
APPLYING FOR A
LICENCE
......................................................... 10
AGENCY
AGREEMENTS ............................................................. 11
TRUST
ACCOUNTS
.................................................................. 12
OCCUPATIONAL
DISCIPLINE
....................................................... 18
ADMINISTRATORS
................................................................... 20
RULES OF CONDUCT
............................................................... 22
iii
Obligations of Owners Corporation Managers
iv
Obligations of Owners Corporation Managers
1
INTRODUCTION
In the ACT, many owners corporations engage a person or corporation to help manage
their units plan. These people are known as owners corporation managers (Managers).
Under the Unit Titles (Management) Act 2011, an owners corporation may appoint any of
the following persons as an owners corporation manager:
•
a person holding a licence as a real estate agent under the Agents Act
•
a person holding a conditional real estate licence under the Agents Act who acts, or
intends only to act, as the manager of an owners corporation
•
a member of the corporation
•
someone else who is not a manager of another owners corporation, and whose
income as manager of the corporation will not be the person’s primary source of
income.
It should be noted that there is no general requirement
to appoint a manager for a units plan.
This guide is designed to assist managers to understand their
obligations under the Agents Act.
Obligations of Owners Corporation Managers
2
DEFINITIONS
The definitions below will be useful for understanding the terms used in this guide.
ACAT: The ACT Civil and Administrative Tribunal. ACAT is a consolidated ACT tribunal
that incorporates several divisions.
ADI: Authorised deposit-taking institution (Banking Act 1989 (Cth)).
ADI business day is defined in section 104 of the Agents Act 2003 as, for a trust account,
a day when the branch of the authorised deposit taking institution is kept open for
business.
Agents Act denotes the Agents Act 2003.
Agents Regulation denotes the Agents Regulation 2003.
Executive Committee: The committee elected at an Owners Corporation’s Annual
General Meeting to run the day-to-day business of the Owners Corporation.
Owners Corporation: All registered owners of the units within a units plan are members
of the Owners Corporation. The membership of the Owners Corporation changes with
the buying and selling of individual units.
Manager is defined in section 49 of the Unit Titles (Management) Act 2011:
An owners corporation may, by ordinary resolution, appoint any of the following as
manager:
(a) a person holding a licence as a real estate agent under the Agents Act 2003
Note: The Commissioner for Fair Trading may issue a conditional real estate licence to a
person who acts, or intends to act, only as the manager of an owners corporation
(see Agents Act 2003, s 34).
(b) a member of the corporation
(c) someone else who is not a manager of another owners corporation, and whose
income as manager of the corporation will not be the person’s primary source of
income.
Note: For the making of appointments (including acting appointments), see the Legislation
Act, pt 19.3.
Owners corporation managing agent is defined in the dictionary of the Agents Act 2003 as
a person appointed as manager of an owners corporation for a units plan under the
Unit Titles Act 2001.
Obligations of Owners Corporation Managers
3
Police certificate is defined as a police check.
Trust money is defined in section 102 of the Agents Act 2003 as trust money if it is
received:
(a) by a licensed agent in relation to the business for which the agent is licensed on
behalf of someone else
(b) on the basis that the money is to be paid to the other person or as the other
person directs.
Units plan: The documents that have been approved for a unit title property
development by the ACT Planning and Land Authority and registered by the
Registrar-General.
Unit Titles Act denotes the Unit Titles Act 2001.
Unit Titles Management Act denotes the Unit Titles (Management) Act 2011.
Unit Titles (Management) Regulation denotes Unit Titles (Management) Regulation 2011.
Obligations of Owners Corporation Managers
4
OWNERS CORPORATION MANAGING AGENTS
Under the Agents Act, an owners corporation managing agent (managing agent) means a
person appointed as manager of an owners corporation for a units plan under the Unit
Titles Management Act.
If you are appointed as a manager to act on behalf of an owners corporation
for a units plan, and derive income from the management of that units plan,
you may need a licence.
You will need a licence if you:
•
are appointed as manager of an owners corporation for a units plan under the Units
Titles (Management) Act; and
•
are not a member of the owners corporation ;and
•
you derive your primary income from acting as a manager of the owners corporation
or you derive income from acting as a manager to more than one owners
corporation.
This means that the obligations previously only applicable to real estate (and other)
agents will now apply to a specific group of managers. In general, people who provide
owners corporation management services and act as a manager of a business must adhere
to the licensing, reporting and trust accounting requirements for real estate agents, as
well as observe the Code of Conduct for managers and the Rules of Conduct for licensed
agents.
Real estate agents who already provide these services will not have to do anything
differently because they are already licensed to provide these services.
People who currently provide owners corporation management services
but who don’t hold a real estate agent’s licence will need to apply for a
licence if they are not a member of the owners corporation or they
derive their primary income from acting as a manager.
Obligations of Owners Corporation Managers
5
APPOINTMENT
An owners corporation manager may be an individual, partnership or corporation. The
executive committee of an owners corporation may engage a manager to carry out the
administrative functions of the owners corporation, or any particular aspect of those
functions.
Under the Unit Titles Management Act, the appointment of any owners corporation manager
requires an ordinary resolution of the owners corporation. However, the scope of a
managers functions will depend on what the owners corporation decides in a general
meeting.
Term of Appointment: Owners corporation manager cannot be appointed for a term
longer than three years. The contract must include information about remuneration,
functions to be exercised on behalf of the owners corporation and any other conditions
agreed to.
Ending an Appointment: An owners corporation may end an owners corporation manager’s
appointment for reasons similar to those that apply to ending a service contract,
namely for:
•
a remedial breach under the Unit Titles Management Act, if a notice has been given under
section 55 of the Unit Titles Management Act
•
misbehaviour
•
bankruptcy
•
a conviction that would result in imprisonment of at least one year (but before
ending a manager’s appointment because of a conviction, the owners corporation
must be satisfied that the conviction affects the manager’s suitability as a manager of
the owners corporation).
Further, the owners corporation must end the appointment of a manager if the manager is
absent for any period other than approved leave for 14 consecutive days or 28 days in a 12
month period. They must also end the appointment of a manager if physical or mental
incapacity substantially affects the exercise of the manager’s functions.
Remedial Breaches: The Unit Titles Management Act specifies the circumstances in which
a manager commits a remedial breach of the owners corporation manager’s appointment.
These circumstances can include a failure to exercise the manager’s functions,
contravention of the code of conduct or gross negligence/misconduct in carrying out
the manager’s functions.
Obligations of Owners Corporation Managers
6
If an owners corporation believes on reasonable grounds that a manager has
committed a remedial breach, it may give written notice to the manager stating
that it believes that the manager has committed a remedial breach. The notice
must include details of the remedial breach committed, sufficient for the
manager to identify the function the manager failed to exercise or the contravention
of the code of conduct or gross negligence or misconduct action.
Within 14 days after the notice is given to the manager, the manager must either
give the owners corporation written representation explaining why the manager’s
actions do not amount to a remedial breach or remedy the breach. An owners
corporation may end the manager’s appointment if the manager does not comply
with the notice or if it does not accept the manager’s representation.
Obligations of Owners Corporation Managers
7
CODE OF CONDUCT
A code of conduct is a set of principles and expectations that are considered binding on
any person who is a member of a particular group.
The Unit Titles Management Act contains a code of conduct at Schedule 1, Part 1.2
that applies to managers.
The Code of Conduct requires:
1) Knowledge of the Unit Titles Management Act 2011 and the Code of Conduct
A manager must have a good working knowledge and understanding of the Act,
including this code, as relevant to the manager’s functions.
2) Acting honestly, fairly and professionally
A manager must act honestly, fairly and professionally in exercising the manager’s
functions. A manager must not try to unfairly influence the outcome of an election
for the owners corporation executive committee.
3) Acting with skill, care and diligence
A manager must exercise reasonable skill, care and diligence in exercising the
manager’s functions.
4) Acting in the owners corporation’s best interests
A manager must act in the best interests of the corporation unless it is unlawful to
do so.
5) The manager to keep the owners corporation informed of developments
A manager must keep the owners corporation informed of any significant
development or issue about an activity carried out for the owners corporation.
6) Ensuring that their employees comply with the Act and the Code
A manager must take reasonable steps to ensure that the manager’s employees
comply with the Act, including this code, when exercising the manager’s functions.
7) The manager is not to engage in fraudulent or misleading conduct
A manager must not engage in fraudulent or misleading conduct in exercising the
manager’s functions.
Obligations of Owners Corporation Managers
8
8) The manager is not to engage in unconscionable conduct
A manager must not engage in unconscionable conduct in carrying out the
manager’s functions.
Examples:
•
taking unfair advantage of the manager’s superior knowledge relative to
the owners corporation
•
requiring the owners corporation to comply with conditions that are unlawful
or not reasonably necessary
•
exerting undue influence on, or using unfair tactics against, the
owners corporation or the owner of a unit in the units plan
These examples are not exhaustive.
9) To avoid conflicts of interest between owners corporations
A manager for an owners corporation (the first corporation) must not accept an
engagement for another owners corporation if accepting the engagement may
place the manager’s duty to, or the interests of the first corporation in conflict
with the manager’s duty to, or the interests of, the other owners corporation.
10) To ensure goods are obtained or supplied at competitive price
A manager must take reasonable steps to ensure the goods and services the
manager gets for, or supplies to, the owners corporation are obtained or supplied
at competitive prices.
11) To provide records required under the Act to owners corporations on request
If an owners corporation or its executive committee asks the manager, in writing,
to show that the manager has kept the owners corporation’s records as required
under the Act, the manager must comply with the request within a reasonable
time.
The Agents Regulation 2003 (Agents Regulation) contains the Rules of Conduct
at Schedule 8 applying to all licensed agents, including real estate agents
and owners corporation managers. The Agents Regulation rules are very
similar to the Code of Conduct in the Unit Titles Management Act, above.
The Agents Regulation rules are reproduced at the end of this guide.
Obligations of Owners Corporation Managers
9
LICENSING REQUIREMENTS
If you act as an owners corporation manager, you may need a licence under the
Agents Act.
Only a small number of owners corporation managers will be required to be licensed under
the Agents Act. In general, these are people who act as an owners corporation manager
as a business. Individual managers working for a licensed real estate agent or licensed
owners corporation manager will not be required to hold a licence.
Who is exempt?
A licence will not be required for the following owners corporation managers:
•
a person who is appointed as an owners corporation manager and is also the
treasurer of the owners corporation
•
a member of the owners corporation appointed as owners corporation manager
•
a person who manages only one owners corporation and whose primary income is not
derived from the position.
Eligibility
Under the Agents Act, an individual is eligible for a licence if that person:
•
is an adult
•
has the qualifications required for the licence (no qualifications for owners
corporation managing agents have been determined at this time)
•
is not disqualified due to being convicted of an offence involving dishonesty, having
been bankrupt any time in the last three years, being mentally incapacitated or
other reasons for disqualification as set out in section 27 of the Agents Act
•
is not disqualified from being registered by the Office of Regulatory Services.
A partnership is eligible to be licensed if each person in the partnership is an adult, and
not disqualified from being licensed or registered.
A corporation is eligible to be licensed if the Commissioner for Fair Trading is satisfied
that no director of the corporation is disqualified from being licensed and at least one
director of the corporation holds a licence of the same kind.
Obligations of Owners Corporation Managers
10
APPLYING FOR A LICENCE
An application for an owners corporation managing agent licence must be
accompanied by:
•
a statement setting out the place that, if the licence is issued, will be the
applicant’s main place of business
•
a police certificate dated not earlier than two months before the day the application
is made for each of the following people: the applicant; any partners of the
applicant; if the applicant is a corporation – each director of the corporation.
Term of Licence
A licence is issued for the period of up to one year stated in the licence.
Renewal of Licence
A licensed owners corporation managing agent may apply to the Commissioner for Fair
Trading to renew the licence. The Commissioner for Fair Trading must renew/refuse the
licence within six weeks of receiving the application.
Under the Agents Regulation it is a condition of a licence that a licensee (the owners
corporation managing agent) satisfies requirements for continuing professional
development set by the Commissioner for Fair Trading. While those people who hold
licences under the Agents Act are already subject to this requirement, owners corporation
managers who become holders of conditional licences as a result of the amendments will
be required to undertake such training in each year they hold the licence. The content of
such training is still being determined, but it is likely to focus on matters such as recent
changes to the law, dispute-resolution, and sinking fund sizing/management.
Obligations of Owners Corporation Managers
11
AGENCY AGREEMENTS
No commission or expenses without agency agreement
An owners corporation manager is not entitled to commission or expenses from the owners
corporation for which the agent acts (principal) for services provided by the agent for the
principal unless:
•
the services were carried out under a written agreement signed by the principal and
the agent (an agency agreement)
•
the agency agreement
•
identifies the rebates, discounts, commissions and expenses that the agent may
receive
•
estimates the amount of any rebates, discounts, commissions and expenses
•
the agency agreement complies with the agents regulations
•
a copy of the agency agreement signed by the agent was given to the principal
within 48 hours after the agreement was signed by the principal.
Obligations of Owners Corporation Managers
12
TRUST ACCOUNTS
Under the Agents Act, all licensed agents, including all licensed owners corporation
managing agents, must hold trust money in a trust account kept at an authorised deposit-
taking institution in the ACT.
If an agent does not received or hold trust money, they may be able to apply to the
Commissioner for Fair Trading for an exemption from the requirements.
For owners corporation managing agents, trust money is money received by them in
relation to the business for which they are licensed on behalf of an owners corporation,
and on the basis that the money is to be paid to the owners corporation or as the owners
corporation directs.
This mandatory obligation for owners corporation managing agents requiring them to keep
trust accounts is due to the special relationship between the agent and the principal
(the owners corporation for whom they act). As it is a relationship based on trust and
a transfer of authority, there is a duty of care that should be kept in mind when dealing
with money that does not form part of the owners corporation’s own accounts.
Trust money is money belonging to an owners corporation but managed by the agent for a
specific purpose or purposes which have been decided by the owners corporation.
Trust money must be appropriately kept in a separate trust account.
A licensed agent may keep more than one trust account.
Under Part 7 of the Agents Act which deals with Trust Accounts, licensed agent includes
the following:
•
a person who is no longer a licensed agent but holds trust money received while
licensed
•
the personal representative of a licensed agent who died while holding trust money,
if the representative holds the trust money
•
the liquidator of a corporation that went into liquidation while being a licensed
agent and holding trust money, if the corporation holds the trust money.
All owners corporation managing agents must manage trust money held, including:
•
providing quarterly statements on trust moneys to the Office of Regulatory Services
•
having trust accounts audited each financial year unless an audit period is otherwise
specified by the Commissioner
•
managing their records, including recording the material details of every
transaction.
Obligations of Owners Corporation Managers
13
What about administrative and sinking funds?
An owners corporation must open and maintain an administrative fund for the general
administration of the owners corporation. An owners corporation may, by special
resolution, establish other funds for particular purposes (a special purpose fund). If there
are four or more units in the units plan, an owners corporation must open and maintain
a sinking fund.
An owners corporation managing agent may be responsible for administering an
administrative fund, special purpose fund, or sinking fund for an owners corporation.
Administrative and sinking funds are not to be treated as trust money and
are not required to be maintained as trust accounts.
Where a managing agent acts on behalf of an owners corporation, the owners
corporation is still the legal owner of the administrative, special purpose or sinking
fund. The interest on administrative and sinking funds continues to belong to the
owners corporation and banking transactions must be done in the owners
corporation’s name.
Opening a trust account
Licensed agents are required to have one or more trust accounts. When opening a trust
account, they are required to notify the authorised deposit-taking institution in writing
that it is a trust account required under the Agents Act.
The trust account must be made under a name that includes the name of the agent, or,
if the agent carries on business under a business name or in partnership, under the
business name or the name of the partnership.
The words ‘Trust Account’ must appear in the name of the trust account and all cheques
drawn on the trust account.
A licensed agent is required to notify the Commissioner for Fair Trading, in writing,
of the details of each trust account held by the agent and, if the agent opens a new
trust account, of each new trust account. These details must be given to the
Commissioner for Fair Trading within two business days after the day the agent
becomes a licensed agent or the agent opens a new trust account.
Obligations of Owners Corporation Managers
14
Dealing with Trust money
A licensed agent must:
•
deal with trust money as directed by the person for whom the money is held on trust
•
not use the money to pay the debts of the agent (and not attach or take in execution
trust money under a court order or court process at the request of the creditor of
the agent)
•
pay the money into the trust account by the next ADI business day after they
receive it
•
only pay amounts out of the trust account by electronic transfer or by cheque
(cheques must be crossed and expressed payable to a person specified in the
cheque)
•
for money that is paid by direct deposit or electronic funds transfer into another
account kept by the agent, pay money into a trust account on the next ADI business
day after the day the agent becomes aware of the payment.
ADI business day, for a trust account, means a day when the branch of the authorised
deposit taking institution is kept open for business.
Agents to notify of overdrawn trust accounts
Where a licensed agent finds out that the agent’s trust account has become overdrawn,
they must tell the Commissioner for Fair Trading in writing within five business days after
the day the agent finds out that the account has become overdrawn.
The agent must provide to the Commissioner:
•
details of the overdrawn account
•
the amount by which the account is overdrawn
•
the reason for the account being overdrawn.
Obligations of authorised deposit-taking institutions
An authorised deposit-taking institution with which a trust account is kept must not enforce
any liability that the licensed agent may have towards the authorised deposit-taking
institution against any amount held in the account whether by way of claim, set-off,
counterclaim, charge or otherwise.
Obligations of Owners Corporation Managers
15
Interest on trust accounts
On the tenth ADI business day in each month, the authorised deposit-taking institution of
the trust account must:
•
work out the interest at the specified rate on the daily balances of the trust account
during the previous month
•
pay to the territory an amount equal to the total of the amounts of the interest
worked out.
The specified rate, for a particular day, is 70% of the yield of the authorised deposit-
taking institution’s accepted bills published by the Reserve Bank of Australia for the day.
Closing trust accounts
When closing a trust account, a licensed agent must tell the Commissioner for Fair Trading, in
writing, of the closure within 10 business days after the day the account is closed.
Change of owners corporation managers
Where there is a change of owners corporation managing agent, the former agent is required to
give a statement and records to the owners corporation. Not later than 14 days after the
person stops being the managing agent, they must give the owners corporation:
•
a certified true copy of the owners corporation accounts
•
the records about the management of the owners corporation.
Quarterly Statements
At the end of each quarter (three months beginning the first day of the audit period for
the agent and each following period of three months) a licensed agent must prepare a
quarterly statement for the Office of Regulatory Services.
The quarterly statement must:
•
be prepared within 15 days after the end of each quarter
•
be made as at the close of business on the last day of business to which the
statement relates
•
state the name of each person on whose behalf the licensed agent held trust money
Obligations of Owners Corporation Managers
16
•
state the amount of trust money held in the agent’s trust accounts on behalf of
the person
•
state the amount of the trust money held in cash by the agent held on behalf of
the person
•
state the amount in each trust account kept by the agent (in working out this
amount, include cheques drawn on the account but not presented as taken to have
been paid)
•
be kept for up to five years after the end of the quarter to which the statement relates
•
must be audited by a qualified auditor within three months after the end of the
audit period, or longer if allowed by the Commissioner for Fair Trading.
Where a licensed agent (including a former licensed agent or personal representative of a
licensed agent) held no trust money during the audit period, the agent must give the
Commissioner for Fair Trading a statutory declaration to that effect within three months
after the end of the audit period.
Records
Under the Agents Act, an owners corporation managing agent is required to keep records of
every transaction (records include documents and information in electronic form).
Records are also required under other laws, such as the Territory Records Act 2002.
A managing agent must record the material details of every transaction, including all trust
account transactions, they conduct.
A managing agent must keep records for five years beginning on 30 September after the
making of the record at the managing agent’s main place of business; or, if the
Commissioner for Fair Trading has agreed in writing that the record may be kept at
another place – that place.
When an owners corporation managing agent receives trust money (in cash or cheque
non electronically credited/transferred and not paid directly into their account)
they must give a receipt to the person who gave them the money, and keep a copy of
that receipt. The receipt must also describe on its face the reason why the money was
given to the owners corporation managing agent.
Unclaimed Trust Money
If, on 1 July of a year, a licensed agent holds trust money received by the agent more than
three years before that day (the unclaimed money), the licensed agent must give the
Commissioner for Fair Trading a statement, made up as a 1 July, about the unclaimed
money by 31 July of the same year.
Obligations of Owners Corporation Managers
17
A statement must contain details of:
•
the name and address of each owners corporation for whom or on whose behalf trust
money is held
•
the amount held for each owners corporation
•
for each owners corporation – the purpose for which the money was paid to the person
giving the statement of the licensed agent by whom the trust account was kept.
Former licensed agents holding trust money need to give statements about unclaimed
trust money to the Commissioner for Fair Trading within three months as at the day they
cease to be a licensed agent.
Personal representatives of licensed agents holding trust money need to give statements
about unclaimed trust money to the Commissioner for Fair Trading within three months as
at the day the licensed agent died.
Within six months after receiving statements about unclaimed money, the Commissioner
for Fair Trading must prepare a written notice stating that, if the money is not paid out of
the trust account in which it is held within three months after the day the notice
is notified, the person holding the money will be required to pay it to the public trustee.
Exempt unclaimed money
For licensed agents, where unclaimed money is exempted by regulations (exempt
unclaimed money), the licensed agent must keep a written record of any exempt
unclaimed money held by them. The regulations may state that the agent does not
need to provide statements of the exempt unclaimed money to the Commissioner for
Fair Trading.
Complaints and disputes
Failure to account properly may result in a claim for compensation. A person
(the claimant) who suffers financial loss because of a licensed agent’s failure to account is
entitled to claim compensation for the loss. A claim in relation to a licensed owner’s
corporation managing agent is limited to $50,000 for a single claim where the cause of
action on which the claim is based arose after the commencement of this provision.
Obligations of Owners Corporation Managers
18
OCCUPATIONAL DISCIPLINE
If the Commissioner for Fair Trading believes on reasonable grounds that a ground for
occupational discipline exists in relation to an agent the Commissioner may apply to the
ACT Civil and Administrative Tribunal (ACAT) for an occupational discipline order in
relation to the agent.
Grounds for occupational discipline
If an owners corporation managing agent contravenes their obligations under the Acts or
Regulations, including a breach of the Code of Conduct for managers or the Rules of Conduct
for agents, the Commissioner for Fair Trading may take disciplinary action against them.
Types of disciplinary action ACAT may make
ACAT may make one or more of the following orders against an agent:
• reprimand them
• require them to give a written undertaking
• require them to complete a stated course of training to the satisfaction of
the regulatory body or another stated person
• give them a direction (note For directions that may be given, see section
67 of the
AC
T Civi l and A dministrat ive Tr ibun al Act 1998
• can cel or sus pend thei r l icence or registration
• disqualify them from applying for a licence, or registration, of a stated kind
for a stated period or until a stated thing happens
• direct the Office of Regulatory Services to:
• put a condition on their licence or registration
• remove or amend a condition put on their licence or registration
• require them to pay to the Territory or someone else a stated amount (not
more than any amount prescribed by regulation)
• if they gained financial advantage from the action that is the ground for
occupational discipline – require them to pay the Territory an amount
assessed as the amount of financial advantage gained by them.
If ACAT cancels an agent’s licence or registration, ACAT may disqualify them from
applying for a licence or registration for a stated period or indefinitely.
Obligations of Owners Corporation Managers
19
Suspension of licences
ACAT may cancel or suspend any other licence held by the agent or prohibit the agent
administering an administrative or special purpose fund under the Unit Titles Management
Act.
Obligations of Owners Corporation Managers
20
ADMINISTRATORS
When administrators may be appointed
The Commissioner for Fair Trading may appoint someone to administer the business of a
licensed owners corporation managing agent or former licensed owners corporation
managing agent if any of the following occurs:
•
the agent’s licence is suspended or cancelled
•
the agent is disqualified from holding a licence
•
the agent’s licence has expired
•
the agent surrenders the licence under section 39 of the Agents Act
•
the agent is missing and cannot be located after making reasonable enquiries
•
the agent dies.
The Commissioner for Fair Trading may appoint someone to administer the business of a
person who is not a licensed agent if the person is:
•
carrying on business as an agent
•
pretending to be a licensed agent.
Agents not to be involved in business under administration
While the appointment of an administrator is in force, the agent must not be involved in
the direction, management or conduct of the agent’s business unless the administrator
otherwise directs in writing.
Notice to authorised deposit-taking institutions
On the appointment of an administrator for an agent, the Commissioner for Fair Trading
must give the person in charge of the branch of the authorised deposit-taking institution
with which the agent maintains a trust account a written notice:
•
telling the person about the appointment
•
revoking the agent’s authority to withdraw money from the account.
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The revocation of the agent’s authority to withdraw money from a trust account has the
effect that
•
the agent may no longer withdraw money from the account
•
any authority given by the agent to someone else to withdraw money from the
account ceases to have effect
•
only the administrator, or a person authorised by the administrator by written notice
given to the authorised deposit-taking institution, is authorised to withdraw money
from the account
•
the authorised deposit-taking institution may not pay any money out of the account
without the written authority of a person mentioned in paragraph above.
The Commissioner for Fair Trading must give a copy of a notice under section 141 of the
Agents Act to the agent, but a failure to comply with this does not affect the validity of
the notice.
Functions of administrators
Anything done by an administrator appointed in relation to an agent is taken to have
been done by the agent, and the agent (not the administrator or the Territory) may be
civilly liable.
Remuneration of administrators
An administrator may be paid remuneration by the Territory. This amount
is recoverable by the Territory as a debt from the agent in relation to whom the
administrator is appointed.
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RULES OF CONDUCT
Below are the general rules applying to all licensees (including owners
corporation managing agents) and registered salespeople contained in the
Agents Regulation at Schedule 8.
1) Knowledge of Act and other laws
An agent must have a knowledge and understanding of the Act, and any other laws relevant to
the kind of licence or certificate of registration held (including, laws relating to residential
tenancy, fair trading, trade practices, anti-discrimination and privacy) that may be necessary
to allow the agent to lawfully exercise his or her functions as agent.
Note: A reference to an Act includes a reference to the statutory instruments made or in
force under the Act, including any regulation (see Legislation Act, s 104).
2) Fiduciary obligations
An agent must comply with the fiduciary obligations arising as an agent.
3) Honesty, fairness and professionalism
(i) An agent must act honestly, fairly and professionally with all parties in a transaction.
(ii) An agent must not mislead or deceive any parties in negotiations or a transaction.
4) Skill, care and diligence
An agent must exercise reasonable skill, care and diligence.
5) High pressure tactics, harassment or unconscionable conduct
An agent must not
engage
in high
pressure tactics, harassment
or harsh or
unconscionable
conduct.
6) To act in client’s best interests
An agent must act in the client’s best interest at all times unless it would be contrary to
the Act or otherwise unlawful to do so.
Note: A reference to an Act includes a reference to the statutory instruments made or in
force under the Act, including any regulations (see Legislation Act, s 104).
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7) Confidentiality
An agent must not, at any time, use or disclose any confidential information obtained
while acting on behalf of a client or dealing with a customer, unless—
•
the client or customer consents to the disclosure
•
the agent is permitted or compelled by law to disclose the information.
•
to act in accordance with client authority
An agent must not act as an agent or represent him or herself as acting as an agent on
behalf of a person without the written consent of the person.
8) To act in accordance with client’s instructions
An agent must act in accordance with a client’s instructions unless it would be contrary to
the Act or otherwise unlawful to do so.
Note: A reference to an Act includes a reference to the statutory instruments made or in
force under the Act; including any regulations (see Legislation Act, s 104).
9) Licensee must ensure employees comply with the Act
An agent who is the licensee-in-charge at a place of business of a licensee must take
reasonable steps to ensure other licensees or registered persons employed in the business
conducted there comply with the Act.
Note: A reference to an Act includes a reference to the statutory instruments made or in
force under the Act; including any regulation (see Legislation Act, s 104).
10) Conflicts of interest
An agent must not accept an appointment to act, or continue to act, as an agent if doing
so would place the agent’s interests in conflict with the client’s interests.
11) Referral to service provider
(i) An agent who refers a principal or prospective buyer to a service provider must not
falsely represent to the principal or prospective buyer that the service provider is
independent of the agent.
(ii) A service provider is considered to be independent of an agent if—
(a) the agent receives no rebate, discount, commission or benefit for referring a
client or customer to the service provider; and
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(b) the agent does not have a personal or commercial relationship with the
service provider.
Examples of personal or commercial relationship include:
•
a family relationship
•
a business relationship
•
a fiduciary relationship
•
a relationship in which 1 person is accustomed, or obliged, to act in accordance
with the directions, instructions or wishes of the other person.
Note: An example is part of the regulation, is not exhaustive and may extend, but does not limit,
the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(iii) If the service provider is not independent of the agent, the agent must disclose to
the principal or prospective buyer:
•
the nature of any relationship, whether personal or commercial, the agent has
with the service provider
•
the nature and value of any rebate, discount, commission or benefit the agent
may receive, or expects to receive, by referring the client or customer to the
service provider.
12) Licensee not to recommend engagement of services of solicitor
acting for other party
An agent must not recommend that a principal or prospective buyer engage the services
of
a
solicitor or firm of solicitors, if the agent knows that the solicitor or the firm of solicitors
acts or will be acting for the other party to the agreement concerned.
13) Inducements
An agent must not offer to provide to any other person any gift, favour or benefit,
whether monetary or otherwise, to induce any other person to engage the services of the
agent as agent in relation to any matter.
14) Soliciting through false or misleading advertisements or
communications
An agent must not solicit clients or customers by advertisement or other communication
that the agent knows or should know are false or misleading.
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15) Insertion of material particulars in documents
An agent must not give or tender to any person for signature a document, unless at the
time of giving or tendering of the document all material particulars have been inserted in
the document.
16) Representations about the Act
(i) An agent must not falsely represent to a person the nature or effect of a provision of
the Act.
(ii) An agent must not, either expressly or impliedly, falsely represent, whether in
writing or otherwise, to a person that a particular form of agency agreement or any
term of the agreement is required by the Act.
Note: A reference to an Act includes a reference to the statutory instruments made or in
force under the Act, including any regulations (see Legislation Act, s 104).
17) Agency agreements must comply with regulation
An agent must not enter into an agency agreement unless the agreement complies with
any applicable requirements of this regulation, as required by the Act, section 100 (No
commission or expenses without agency agreement).
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