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The Real Estate Agent (I) - Coggle Diagram
The Real Estate Agent (I)
Appointment
Form 6
Property Operations Act 2014
(Qld)
Type of Agency
Open Listing
Seller may list with as many Agents as they choose
Seller may sell property THEMSELVES
Seller only pays commission if Agent is effective COS
Exclusive Agency
Seller must pay Agent's commission, whether or not the Agent is effective COS or not
If another exclusive agent is appointed and sells the property:
seller in breach of exclusive appointments
seller likely to pay two commissions
Sole Agency
Seller retains right to sell
Only ONE agent appointed
MAX TERM: 90 DAYS
Cancelling: if term is more than 60 days (minimum), either party may terminate with 30 days notice
Has the agent been appointed appropriately?
Effective Cause of Sale
More than introduction is required
Anderson v Densley
Agent introduced buyer, contracted but fell over without default of seller - buyer subsequently bought. HELD - entitled to commission but lack of evidence of appointment in writing
Wyatt v Ball
-B and S entered contract via Agent A
-Finance failed, sale fell over
New agent B siggested B arrange finance w/daughter - contract concluded
No commission to A, no ECOS
Rasmussen & Russo PL v Gaviglio
Requires not merely finding a buyer, but that contract entered and sale completed
Jurisdiction
Duties of the Agent
Duty to perform the contract of agency
Actually do what is set out in the appointment form
Must do so in accordance with instructions
If vary required, seek variation of appointment
Duties of care and skill
Imposed at law
Imposed under the ACL, s 60
Must be consumer: less than 40k/personal/domestic use
Skill - appropriate educational qualifications, licensed in QLD under the Property Occupation Act
Standard - "workmanlike manner, reasonable skill and ability" no guarantee of a result!
Failure
Breach - implied term
Possible loss of commission
Disciplinary proceedings
ACL - possible statutory remedy of termination and/or compensation
Good Faith
Duty to ensure that the interest of the client is not in conflict with the interests of the agent
Duty not to make any secret profits from relationship
Duty of confidentiality
Authority
Describe the property sufficiently to identify it
Limited authority to make representations (puff)
Specify the asking price
Describe its location
No implied authority to bind seller contractually - ostensible authority does not extend to enter into a contractual relationship on behalf of the seller