Property Occupations Act 2014

This Act may be cited as the Property Occupations Act 2014.

This Act, other than part 16, commences on a day to be fixed by proclamation.

This Act binds all persons, including the State and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States.

Nothing in this Act makes the State, the Commonwealth or any other State liable to be prosecuted for an offence.

The Fair Trading Inspectors Act 2014 enacts common provisions for this Act and particular other Acts about fair trading.

Unless this Act otherwise provides in relation to the Fair Trading Inspectors Act 2014, the powers that an inspector has under that Act are in addition to and do not limit any powers the inspector may have under this Act.

Note—See also the modifying provision for this Act stated in the Fair Trading Inspectors Act 2014, section 6.

Parts 3 and 4 and part 6, divisions 1 and 2 to the extent they relate to a property agent do not apply to—

a sale made under a rule, order, or judgment of the Supreme Court or District Court; or

a sale made by a person obeying an order of, or a process issued by, a court, judge or justice, or the registrar of the State Penalties Enforcement Registry for the recovery of a fine, penalty or award; or

a sale of an animal lawfully seized and sold under the Animal Care and Protection Act 2001 or another law about seizing or impounding an animal; or

a sale conducted for a charity, a religious denomination or an organisation formed for a community purpose, within the meaning of the Collections Act 1966 (relevant entity) if—

the person conducting the sale does not receive from the relevant entity a reward for the person’s services; and

amounts received from the sale are paid directly to an officer or employee of the relevant entity who is authorised by the relevant entity to receive and deal with the amounts.

In this section—sale means a sale, attempted sale or an offering for sale or resale, by way of auction.

This section applies to the following persons (each an appointee)—

a person appointed under the Corporations Act as an administrator of a corporation that is or was authorised under a licence or former licence to perform an activity;

a person appointed under the Corporations Act as an administrator of a deed of company arrangement for a corporation that is or was authorised under a licence or former licence to perform an activity;

a person appointed under the Corporations Act as a liquidator, or controller of property, of a corporation that is or was authorised under a licence or former licence to perform an activity;

a person appointed under the Administration Act as a receiver for property of an entity that is or was authorised under a licence or former licence to perform an activity;

a person appointed under the Bankruptcy Act 1966 (Cwlth) as the trustee in bankruptcy, or the Official Receiver, for an individual who is or was authorised under a licence or former licence to perform an activity.

The appointee is exempt from the provisions mentioned in subsection (3) while performing the activity in relation to a business that is or was authorised to be carried on under—

for a licence that is in force— the licence; or

for a former licence that is not in force—the former licence immediately before it stopped being in force.

For subsection (2), the provisions are—

sections 84 and 85; and

part 3, division 2; and

sections 97, 100 and 102.

In this section—former licence means a licence that was previously in force.person appointed as the trustee in bankruptcy, for an individual, includes the Official Trustee in Bankruptcy under the Bankruptcy Act 1966 (Cwlth) if the Official Trustee is the trustee in bankruptcy for the individual.

An entity (exempt entity) is exempt from this Act if the entity—

carries on the business of a property agent or resident letting agent in relation to assets, other than residential property, of—

another entity the majority of which is directly or indirectly owned by the exempt entity; or

another entity, if the majority of both entities is directly or indirectly owned by the same persons; or

another entity that directly or indirectly owns the majority of the exempt entity; and

is a property agent or resident letting agent only because of the business carried on by it in relation to the assets; and

when carrying on that business as a property agent or resident letting agent discloses in writing in any advertising or contract relating to the assets its relationship to the owner of the assets.

A person acting as a property agent for the sale or exchange of real property, other than residential property or rural land, is exempt from this Act for the transaction if—

the real property for the transaction has—

a total gross floor area of at least the area prescribed under a regulation; or

a total estimated value of at least the amount prescribed under a regulation; or

each party to the transaction owns real property, other than the real property for the transaction, that has—

a total gross floor area of at least the area prescribed under a regulation; or

a total estimated value of at least the amount prescribed under a regulation.

A person acting as a property agent or resident letting agent for the letting of real property or collecting rents for real property, other than residential property or rural land, is exempt from this Act if the person is acting on behalf of an entity that owns real property that has—

a total gross floor area of at least the area prescribed under a regulation; or

a total estimated value of at least the amount prescribed under a regulation.

To remove any doubt, it is declared that, without limiting subsection (2), the subsection applies if the person is acting as a property agent or resident letting agent for 2 or more entities engaged in a joint venture arrangement and the entities, individually or collectively, own real property that has—

a total gross floor area of at least the area prescribed under a regulation; or

a total estimated value of at least the amount prescribed under a regulation.

In this section—estimated value, of real property, means the estimate, made on reasonable grounds by the person acting as—

a property agent for the sale of the property, of the price payable for the property; or

a property agent for the exchange of the property, of the value of the property; or

a property agent or resident letting agent for the letting of the property or collecting rents for the property, of the value of the property.

rural land means land used, intended to be used, or apparently intended to be used, for gain or profit, for grazing livestock or cultivating crops.

A regulation may exempt from this Act a class of person who acts as a property agent or resident letting agent for an entity if the class of person is acting as a property agent or resident letting agent for another entity related to the entity.

Parts 3 and 4 and part 6, divisions 1 and 2 to the extent they relate to a property agent do not apply to a financial institution or trustee company.

In this section—trustee company means—

a trustee company under the Trustee Companies Act 1968; or

the public trustee when the public trustee is—

performing the activities that may be performed by a trustee company; or

exercising the powers that may be exercised by a trustee company; or

holding an office that may be held by a trustee company.

A non-profit corporation is exempt from parts 3 and 4 and part 6, divisions 1 and 2 if—

the corporation provides or locates—

affordable rental housing under an affordable housing scheme; or

approved supported accommodation; and

the providing or locating of the housing or accommodation is funded or managed by the Commonwealth, a State or a local government.

Subsection (1) does not apply if the non-profit corporation is otherwise carrying on the business of a resident letting agent or property agent.

To remove any doubt, it is declared that a corporation does not stop being a non-profit corporation only because it receives a reward for providing its services to another non-profit corporation.

In this section—affordable housing scheme see the Residential Tenancies and Rooming Accommodation Act 2008, schedule 2.approved supported accommodation see the Residential Tenancies and Rooming Accommodation Act 2008, schedule 2.non-profit corporation means a corporation formed for a purpose other than the purpose of making a profit.

The objects of this Act are—

to provide a system for licensing and regulating persons as property agents or resident letting agents and for registering and regulating persons as real estate salespersons that achieves an appropriate balance between—

the need to regulate for the protection of consumers; and

the need to promote freedom of enterprise in the market place; and

to provide a way of protecting consumers against particular undesirable practices associated with the promotion of residential property.

The objects are to be achieved by—

ensuring—

only suitable persons with appropriate qualifications are licensed or registered; and

persons who carry on business or are in charge of a licensee’s business at a place under the authority of a licence maintain close personal supervision of the way the business is carried on; and

providing—

protection for consumers in their dealings with licensees and their employees; and

a legislative framework within which persons performing activities for licensees may lawfully operate; and

regulating fees and commissions that can be charged for particular transactions; and

providing protection for consumers in their dealings with marketeers; and

providing for the enforcement of matters involving marketeers; and

providing increased flexibility in enforcement measures through injunctions, undertakings, and, for contraventions by marketeers, preservation of assets and civil penalties; and

promoting administrative efficiency by providing that—

responsibility for licensing rests with the chief executive; and

responsibility for reviewing particular decisions of the chief executive rests with QCAT; and

responsibility for disciplinary matters rests with QCAT.