Property Agents and Land Transactions Act 2016

Property Agents and Land Transactions Act 2016

This Act may be cited as the Property Agents and Land Transactions Act 2016.

The provisions of this Act commence on a day or days to be proclaimed.

In this Act, unless the contrary intention appears – approved form means a form approved by the Board; approved institution– see section 147(2); auditor means a person practising as a public accountant who is a member of – the Australian Society of Certified Practising Accountants; or the Institute of Chartered Accountants in Australia; or the Institute of Public Accountants in Australia; authorised place of business, in respect of a real estate agent named in Part 1(1) of the Register, a property manager named in Part 2(1) of the Register or a general auctioneer named in Part 3(1) of the Register, means a place shown in the Register as a place where the agent, manager or auctioneer may carry on, respectively, real estate agency business, property management business or general auctioneering business;Board means the Property Agents Board continued under section 5; business, in respect of the sale or purchase of a business, includes a share in a business and the goodwill of a business, but does not include a share in the capital of a company;Code of Conduct or "Code" means the Code of Conduct referred to in section 84; company means a body corporate wherever incorporated; conveyancer has the same meaning as in the Conveyancing Act 2004; deemed registration means an entitlement to automatic deemed registration, within the meaning of the Mutual Recognition Act 1992 of the Commonwealth; document means any record of information, and includes – anything on which there is writing; and anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and a map, plan, drawing or photograph – and a reference in this Act to a document (as so defined) includes a reference to – any part of the document; and any copy, reproduction or duplicate of the document or of any part of the document; and any part of such a copy, reproduction or duplicate; employ includes engage under a contract for services; functions of a property representative includes all or any of the following functions performed by a person while in the employ of a real estate agent or property manager:inducing or attempting to induce, or negotiating with a view to inducing, people to do all or any of the following:acquire or dispose of property or a business; make an offer to acquire or dispose of property; make an offer to acquire or dispose of a business; enter into a contract for the acquisition or disposal of property; enter into a contract for the acquisition or disposal of a business; negotiating the leasing or letting of property; collecting rents for property that is leased or let; managing property that is leased or let; general auctioneer means a person who holds a valid general auctioneer licence; general auctioneering business means business as an auctioneer where the property auctioned does not include land; general auctioneer licence means – a type of licence referred to in section 15(c) that is issued and in force in accordance with section 19(1)(a); or a general auctioneer licence held by a person by virtue of holding deemed registration;Guarantee Fund or Fund means the fund as continued in existence by section 149 under the name Property Agents Guarantee Fund; legal practitioner means an Australian legal practitioner; licence means – a licence issued and in force under this Act; and a licence held by a person by virtue of holding deemed registration; licence holder means a person who holds a licence; magistrate means a magistrate within the meaning of the Magistrates Court Act 1987; name, in respect of a real estate agent named in Part 1(1) of the Register, a property manager named in Part 2(1) of the Register or a general auctioneer named in Part 3(1) of the Register, means the name shown in the Register as a name by which the agent, manager or auctioneer may carry on, respectively, real estate agency business, property management business or general auctioneering business; owner, in respect of property, means the person who holds the legal title to it, that person's successors and assigns and an agent of that person;Panel means the Panel referred to in section 104(3); property includes both real and personal property and any estate or interest in any property real or personal; property agent means a real estate agent, a property manager, a general auctioneer, or a property representative; property agent licence means – a real estate agent licence; and a property manager licence; and a general auctioneer licence; and a property representative licence; property agents industry means the business carried on by property agents; property management business means the carrying out of all or any of the following activities pursuant to instructions received from other people:negotiating the leasing or letting of property; collecting rents for property that is leased or let; managing property that is leased or let; property manager or manager means a person who holds a valid property manager licence; property manager licence means – a type of licence referred to in section 15(b) that is issued and in force in accordance with section 19(1)(a); or a property manager licence held by a person by virtue of holding deemed registration; property representative or representative means a person who holds a valid property representative licence; property representative licence means – a type of licence referred to in section 15(d) that is issued and in force in accordance with section 19(1)(a); or a property representative licence held by a person by virtue of holding deemed registration; public auction means an auction that has been publicly advertised; publish means publish by any means including by publication on the internet; real estate agency business means the carrying out of all or any of the following activities pursuant to instructions received from other people:selling, buying, exchanging, leasing or otherwise dealing with, or disposing of, property or businesses; negotiating the sale, purchase, exchange, lease or any other dealing with, or the disposition of, property or businesses; collecting rents for property that is leased or let; managing property that is leased or let; real estate agent or agent means a person who holds a valid real estate agent licence; real estate agent licence means – a type of licence referred to in section 15(a) that is issued and in force in accordance with section 19(1)(a); and a real estate agent licence held by a person by virtue of holding deemed registration; region means the northern region, the north-western region or the southern region;Register means the Register of Property Agents maintained by the Board under section 29; regulations means the regulations made and in force under this Act; relative, in relation to a person, includes partner, within the meaning of the Relationships Act 2003, of that person;Rental Deposit Authority means the Rental Deposit Authority established under section 48K of the Residential Tenancy Act 1997; repealed Act means the Property Agents and Land Transactions Act 2005;Residential Tenancy Commissioner means the person appointed under section 7 of the Residential Tenancy Act 1997; sale means a disposition of property for valuable consideration; scheme of arrangement means a scheme of arrangement referred to in section 147; statutory authority means a body or authority, whether incorporated or not, that is established or constituted by or under an Act or under the royal prerogative, being a body or authority which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another statutory authority, but does not include an Agency, within the meaning of the State Service Act 2000; Tribunal means the Tasmanian Civil and Administrative Tribunal;Trust means the trust as continued in existence by section 141 under the name Property Agents Trust; trust account– see section 134; trust money– see section 133.

In this Act – a reference to Part 1(1) of the Register is a reference to Division (1) of Part 1 of the Register; and a reference to Part 1(2) of the Register is a reference to Division (2) of Part 1 of the Register; and a reference to Part 2(1) of the Register is a reference to Division (1) of Part 2 of the Register; and a reference to Part 2(2) of the Register is a reference to Division (2) of Part 2 of the Register; and a reference to Part 3(1) of the Register is a reference to Division (1) of Part 3 of the Register; and a reference to Part 3(2) of the Register is a reference to Division (2) of Part 3 of the Register.

In this section – accountant means a person practising as a public accountant who is a member of – CPA Australia; or the Institute of Chartered Accountants in Australia; or the Institute of Public Accountants in Australia.

This Act does not bind the Crown.

Nothing in this Act prohibits the following persons from carrying out an activity that is part of a real estate agency business or property management business:a liquidator or receiver; a person who is subject to a guardianship order under the Guardianship and Administration Act 1995 or an assessment order or treatment order under the Mental Health Act 2013; a trustee company within the meaning of the Trustee Companies Act 1953; a legal practitioner – if that person is performing functions in that capacity.

An accountant need not be licensed to carry out an activity that is part of a real estate agency business if the activity does not include the sale, management, letting or lease of land.

The Property Agents Board established under section 70 of the repealed Act continues in existence for the purposes of this Act.

The Board consists of the following persons appointed by the Governor:an Australian lawyer, nominated by the Minister, of at least 5 years' standing as an Australian legal practitioner and who has legal experience in areas of law relevant to the position, who is to be the Chair of the Board; a property agent, nominated by the body that the Minister is satisfied represents the views of the majority of property agents, who has at least 5 years' experience as a property agent; a property agent, nominated by the Minister, who has at least 5 years' experience as a property agent;2 persons, nominated by the Minister, who are not property agents.

The Board – is a body corporate with perpetual succession; and may sue and be sued in its corporate name; and may have a seal.

If the Board has a seal – it is to be kept and used as authorised by the Board; and all courts and persons acting judicially must take judicial notice of the imprint of the seal on a document and presume that the document was duly sealed by the Board.

Schedule 1 has effect with respect to the membership and meetings of the Board.

The Board has the following functions:to administer the licensing system for property agents established by this Act; to maintain the Register; to ensure that property agents comply with the requirements of this Act relating to their conduct in carrying on their businesses or in performing their functions and, where they fail to do so, to take appropriate action, including disciplinary action, to protect the public and to discourage such conduct; to ensure that people do not act as property agents unless they are permitted to do so under this Act; to develop and ensure compliance with a Code of Conduct for property agents; to receive, investigate and determine complaints against property agents; to provide support in the resolution of disputes relating to the conduct of property agents; to supervise the trust accounts of property agents; to advise property agents on appropriate standards of conduct; to monitor, identify and report to the Minister trends and issues that emerge within the property agents industry; to perform educational functions for the purposes of this Act; to advise the Minister on matters relating to this Act including its efficacy and on any other matters relevant to the Board's functions or to the property agents industry; to perform any other function imposed on the Board by this or any other Act; such other functions as may be prescribed.

The function mentioned in subsection (1)(f) includes – referring complaints in respect of a serious offence, within the meaning of Part 7, to the Tribunal for hearing and determination; and referring complaints involving alleged criminal conduct to the Commissioner of Police.

The educational functions mentioned in subsection (1)(k) include – providing input into establishing the standards of education for property agents; and conducting or supervising the conduct of examinations as necessary; and determining the subjects in which property agents are required to qualify; and approving courses of practical instruction on the functions of property agents.

The Board has power to do all things necessary or convenient to be done in connection with the performance of its functions.

This power includes the power to impose fees and charges for performing its functions under this Act for which no other fee or charge has been prescribed.

A fee or charge due to the Board and unpaid may be recovered in a court of competent jurisdiction as if it were a debt due to the Board.

The Board may waive, remit or refund part or all of a fee or charge payable to the Board under this Act.

The Board may, by instrument in writing, delegate any of its functions or powers under this or any other Act other than this power of delegation and the power to discipline property agents.

The Board may enter into a contract with any person for the performance or exercise by that person of any of the Board's functions or powers under this Act or any other Act other than the power to discipline property agents.

The Board may establish such committees as it considers necessary for the purpose of assisting it in the performance of any of its functions or the exercise of any of its powers.

A committee consists of such persons as the Board appoints.

A member of the Board may be a member of a committee.

Subject to subsection (5), the Board may pay a member of a committee remuneration and allowances.

A member of a committee who is a State Service officer or State Service employee is not to be paid remuneration or allowances mentioned in subsection (4) unless the Minister administering the State Service Act 2000 determines otherwise.

The Board may give written directions to a committee and the committee must comply with those directions.

A committee is to keep accurate minutes of its proceedings.

A committee is to regulate its proceedings in accordance with any directions given by the Board but may otherwise regulate its own proceedings.

The Board is to employ a suitably qualified person to be the executive officer of the Board and may employ such other persons as it considers necessary.

The executive officer is to act as the secretary to the Board.

The State Service Act 2000 does not apply to a person employed by the Board.