Land Agents Act 1994

This Act may be cited as the Land Agents

Act 1994.

In this Act, unless the contrary intention appears—

agent—see section 4;

authorised officer means an authorised officer under the Fair Trading

Act 1987;

business includes a share of, or interest in, a business or the goodwill of a business, but does not include a share in the capital of a corporation;

Commissioner means the Commissioner for Consumer

Affairs;

dealing with land includes granting or taking a lease or tenancy agreement over land;

director of a body corporate includes—

a person occupying or acting in the position of director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and

any person in accordance with whose directions or instructions the directors or members of the governing body of the body corporate are accustomed to act;

indemnity fund means the fund maintained under

Part

3;

land includes—

an interest in land; and

an exclusive right (whether deriving from the ownership of a share or interest in a body corporate or partnership or arising in some other way) to the separate occupation of land or a building or part of a building;

legal practitioner has the same meaning as in the Legal Practitioners

Act 1981;

money includes an instrument for the payment of money that may be negotiated by an ADI;

mortgage means a legal or equitable mortgage over land;

mortgage financing means negotiating or arranging loans secured by mortgage including receiving or dealing with payments under such transactions;

property manager means a person who, for or on behalf of an agent—

grants leases, tenancy agreements or licence agreements in relation to land (whether or not that land is to be used for residential purposes or for the purposes of a business); or

induces or attempts to induce, or makes representations or negotiates with a view to inducing, a person to enter into such leases or agreements; or

ensures compliance with the terms and conditions of such leases or agreements; or

performs a function of a kind prescribed by regulation for the purposes of this paragraph, whether or not the agent is the owner of the land, but does not include a person who performs a function of a kind excluded by regulation from the ambit of this definition;

registered agent includes a person registered as an agent and additionally registered as an auctioneer;

registered property manager includes—

a person registered as a property manager; or

a person registered as a sales representative and additionally registered as a property manager;

registered sales representative includes a person registered as a sales representative and additionally registered as an auctioneer;

sales representative means a person who, for or on behalf of an agent—

acquires or disposes of land or a business (including by conducting an auction); or

induces or attempts to induce, or makes representations or negotiates with a view to inducing, a person—

to acquire or dispose of land or a business; or

to make an offer to acquire or dispose of land or a business;

or

to accept an offer to acquire or dispose of land or a business;

or

to enter into a contract for the acquisition or disposal of land or a business; or

performs a function of a kind prescribed by regulation for the purposes of this paragraph, whether or not the agent is the owner of the land or business, but does not include a person who performs a function of a kind excluded by regulation from the ambit of this definition;

sell includes auction and exchange, and

purchase has a corresponding meaning;

Tribunal means the South Australian Civil and

Administrative Tribunal established under the South Australian Civil and Administrative Tribunal

Act 2013.

A person is an agent for the purposes of this Act if the person carries on a business that consists of or involves—

selling or purchasing or otherwise dealing with land or businesses on behalf of others, or conducting negotiations for that purpose;

or

selling land or businesses on his or her own behalf, or conducting negotiations for that purpose.

However, a person does not act as an agent in so far as—

the person sells or purchases or otherwise deals with land or businesses on behalf of others, or conducts negotiations for that purpose, in the course of practice as a legal practitioner; or

the person sells land or businesses, or conducts negotiations for that purpose, through the instrumentality of an agent; or

the person engages in mortgage financing.

The Commissioner is responsible, subject to the control and directions of the Minister, for the administration of this Act.

A person must not carry on business, or hold himself or herself out, as an agent unless registered as an agent under this Act. Maximum penalty: Maximum penalty:

for an offence committed by a natural person—

for a first or second offence—$50 000;

or

for a third or subsequent offence—$50 000 or

12 months imprisonment or both; or

for an offence committed by a body corporate—$250 000.

A person required by this Act to be registered as an agent is not entitled to commission or other consideration for services as an agent unless the person—

is, at the time of rendering the services, registered as an agent;

and

is authorised, in writing, to act as an agent by the person for whom the services are rendered or a person authorised to act on behalf of that person.

Any commission or other consideration paid or given to a person who is, under subsection (2), not entitled to it may be recovered from the person as a debt.

A person must not act as a sales representative for an agent unless the person—

is registered as an agent under this Act; or

is registered as a sales representative under this Act and is acting as an employee engaged by the agent under a contract of service. Maximum penalty: Maximum penalty: $20 000.

For the purposes of subsection (1), a person acts as a sales representative for an agent if the person—

is or remains in the service of the agent as a sales representative; or

holds himself or herself out as a sales representative for the agent; or

performs any of the functions of a sales representative on behalf of the agent.

An agent must not engage another person to perform any of the functions of a sales representative in the course of the agent's business unless the other person—

is registered as an agent under this Act; or

is registered as a sales representative under this Act and is engaged by the agent as an employee under a contract of service. Maximum penalty: Maximum penalty: $20 000.

A person must not act as a property manager for an agent unless the person—

is registered as an agent under this Act; or

is registered as a sales representative under this Act, is additionally registered as a property manager and is acting as an employee engaged by the agent under a contract of service; or

is registered as a property manager under this Act and is acting as an employee engaged by the agent under a contract of service. Maximum penalty: Maximum penalty: $20 000.

For the purposes of subsection (1), a person acts as a property manager for an agent if the person—

is or remains in the service of the agent as a property manager;

or

holds himself or herself out as a property manager for the agent;

or

performs any of the functions of a property manager on behalf of the agent.

An agent must not engage another person to perform any of the functions of a property manager in the course of the agent's business unless the other person—

is registered as an agent under this Act; or

is registered as a sales representative under this Act, is additionally registered as a property manager and is engaged by the agent as an employee under a contract of service; or

is registered as a property manager under this Act and is engaged by the agent as an employee under a contract of service. Maximum penalty: Maximum penalty: $20 000.

A person must not conduct an auction in the course of that person's or some other person's business as an agent, or hold himself or herself out as being authorised to conduct such an auction, unless—

the person is registered under this Act as an agent and is additionally registered as an auctioneer or is registered as a sales representative and is additionally registered as an auctioneer;

or

the auction is conducted through the instrumentality of a person who is registered under this Act as an agent and is additionally registered as an auctioneer or is registered as a sales representative and is additionally registered as an auctioneer. Maximum penalty: Maximum penalty: $5 000.

An agent must not engage another person to conduct an auction in the course of the agent's business unless the other person—

is registered under this Act as an agent and is additionally registered as an auctioneer; or

is registered under this Act as a sales representative and is additionally registered as an auctioneer and is engaged by the agent as an employee under a contract of service. Maximum penalty: Maximum penalty: $20 000.

An application for registration must—

be made to the Commissioner in the manner and form approved by the

Commissioner; and

be accompanied by the fee fixed by regulation.

An applicant for registration must provide the Commissioner with such evidence as the Commissioner thinks appropriate as to the identity, age and address of the applicant and any other information required by the

Commissioner for the purposes of determining the application.

Proof of registration granted to a natural person will include a registration card that bears a photograph of the person and has been issued to the person by the Commissioner; consequently the Commissioner may require an applicant for registration who is a natural person—

to attend at a specified place for the purpose of having the applicant's photograph taken; or

to supply the Commissioner with 1 or more photographs of the applicant as specified by the Commissioner.

If an applicant for registration has previously failed to pay a fee or penalty that became payable under this Act, the Commissioner may require the applicant to pay the whole or a specified part of the fee or penalty.

The Commissioner may, by notice in writing, require an applicant for registration, within a time fixed by the notice (which may not be less than

28 days after service of the notice), to comply with any requirement under this section to the Commissioner's satisfaction.

If the applicant fails to comply with the notice under subsection (4), the Commissioner may, without further notice, refuse the application but keep the fee that accompanied the application.

A natural person is entitled to be registered as an agent if the person—

has—

the qualifications required by regulation; or

subject to the regulations, the qualifications that the

Commissioner considers appropriate; and

has not—

been convicted of an indictable offence of dishonesty;

or

during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty;

and

is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and

is not an insolvent under administration within the meaning of the

Corporations

Act 2001 of the Commonwealth; and

has not, during the period of five years preceding the application for registration, been a director of a body corporate wound up for the benefit of creditors—

when the body was being so wound up; or

within the period of six months preceding the commencement of the winding up; and

is a fit and proper person to be registered as an agent.

A body corporate is entitled to be registered as an agent if—

the body corporate—

is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and

is not being wound up and is not under official management or in receivership; and

no director of the body corporate—

has—

been convicted of an indictable offence of dishonesty;

or

during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty;

or

is suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; or

has, during the period of five years preceding the application for registration, been a director of a body corporate wound up for the benefit of creditors—

when the body was being so wound up; or

within the period of six months preceding the commencement of the winding up; and

each director of the body corporate is a fit and proper person to be the director of a body that is registered as an agent.

A natural person is entitled to be registered as a sales representative if the person—

has—

the qualifications required by regulation; or

subject to the regulations, the qualifications that the

Commissioner considers appropriate; and

has not—

been convicted of an indictable offence of dishonesty;

or

during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty;

and

is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and

is a fit and proper person to be registered as a sales representative.

Despite section 8A, a natural person who does not have the qualifications required by that section, but would otherwise be entitled to be registered as a sales representative, is entitled to be registered as a sales representative if—

the registration is made subject to conditions considered appropriate by the Commissioner relating to training to be undertaken by the person for the purpose of qualifying for unconditional registration as a sales representative; and

the Commissioner does not consider that such registration should be refused because of previous failure by the applicant to comply with a condition referred to in paragraph (a).

The Commissioner may, on application by the person and payment of the prescribed fee, or on the Commissioner's own initiative, by written notice, vary or revoke conditions of a person's registration under this section.

An agent who employs as a sales representative a person registered under this section must ensure that the person is properly supervised in that employment. Maximum penalty: Maximum penalty: $10 000.

Without limiting the effect of subsection (3), the regulations may provide that a sales representative will not be taken to be properly supervised for the purposes of that subsection unless certain practices specified in the regulations are followed.

The Commissioner may, by written notice, cancel the registration of a person registered under this section if the Commissioner is satisfied that the person has, without reasonable excuse, failed to comply with a condition of the registration.