Property Agents and Land Transactions Regulations 2017

Property Agents and Land Transactions Regulations 2017

21 March 2017

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Property Agents and Land Transactions Act 2016.

These regulations may be cited as the Property Agents and Land Transactions Regulations 2017.

These regulations take effect on the day on which the provisions of the Property Agents and Land Transactions Act 2016 commence.

In these regulations – Act means the Property Agents and Land Transactions Act 2016; ledger account means an account required under regulation 20(1) to be kept in the trust account ledger in respect of a person, property or transaction; licensed conveyancer means a conveyancer licensed under the Conveyancing Act 2004; personal representative, of a deceased person, means the executor or administrator of the estate of the deceased person; reconcile has the meaning given by regulation 21(2); reconciliation record means the record of the reconciliation of a trust account made under regulation 21; schedule of invested trust money means a schedule required to be prepared under regulation 22(1); trust account cash book means a cash book required to be kept under regulation 15(1); trust account deposit record means a record required to be kept under regulation 11(1) after trust money is deposited; trust account general journal means the journal of trust money transfers required to be kept under regulation 18(1); trust account ledger means a ledger required to be kept under regulation 19; trust account receipt means a receipt required to be issued under regulation 9(2); trust account records means the records and accounts required to be kept under regulation 5 whether kept on paper or electronically.

In these regulations, a person ceases to carry on the business of a property agent if that person's property agent licence is no longer valid.

A person required to keep a record or account under these regulations must ensure that the record or account is in English.

Fine not exceeding 50 penalty units.

This regulation applies to a property agent who is – a real estate agent named in Part 1(1) of the Register; or a property manager named in Part 2(1) of the Register; or a general auctioneer named in Part 3(1) of the Register.

A property agent who receives trust money must keep the following records and accounts relating to the trust money in a secure place:at least one duplicate of each trust account receipt; at least one duplicate of each trust account deposit record; records relating to trust account payments made under Division 5; a trust account cash book; a trust account ledger; a trust account general journal; the statements issued by an approved institution in respect of trust accounts; reconciliation records; if trust money has been invested, a schedule of invested trust money; any other records or accounts that the Board thinks fit; records or accounts that are specified by the Board as necessary to support the records kept under the above paragraphs. Fine not exceeding 50 penalty units.

A property agent who receives trust money must – supervise the keeping of the trust account records relating to trust money received by the property agent; and ensure that the reconciliation records and schedule of ledger accounts are accurate; and within 2 days after the making of a reconciliation record, endorse the record with – a statement that the record is complete and accurate; and his or her signature. Fine not exceeding 50 penalty units.

If the property agent is a corporation, the property agent responsible for the management of the corporation is the property agent who must comply with subregulation (1).

A property agent must not knowingly –

include false or misleading information in trust account records; or create false or misleading trust account records.

Fine not exceeding 50 penalty units.

A property agent who has trust money in a trust account must retain the money in the account until the money is paid – to the person entitled to it; or to the legal practitioner or licensed conveyancer of the person entitled to it; or in accordance with the written directions of the person entitled to the money or his or her legal practitioner or licensed conveyancer. Fine not exceeding 50 penalty units.

When a person ceases to carry on the business of a property agent, or a person who is a property agent dies, but the person holds trust money in a trust account, the person or the personal representative of the deceased person must, with the written approval of the parties to the transaction to which the money relates, immediately disburse the trust money – to the trust account of another property agent; or to the trust account of a legal practitioner, or licensed conveyancer, acting for either of the parties to the transaction. Fine not exceeding 50 penalty units.

In this regulation – coded deposit book means a deposit book that is issued – by an approved institution; and with an identifying code that links the deposit book to a tenant or property.

A property agent must issue a receipt for any trust money received for or on behalf of a party to negotiations in which the property agent is involved. Fine not exceeding 50 penalty units.

Unless requested to do so, a property agent does not need to issue a trust account receipt if the property agent receives the trust money by – electronic funds transfer; or deposit into the trust account, if a coded deposit book is given to the person paying the money; or another means of direct deposit into the trust account.

However, if a trust account receipt is not required to be issued on the receipt of trust money, the property agent must – assign a unique reference number to the money received; and in each place a trust account receipt number is required to be recorded, record the unique reference number in place of the trust account receipt number.

If the property agent carries on business at more than one location, the property agent must ensure that trust account receipts can be issued at all locations where the property agent carries on business. Fine not exceeding 50 penalty units.

If an interim receipt is issued in respect of trust money, the interim receipt number must be recorded on any trust account receipt issued in respect of that trust money. Fine not exceeding 50 penalty units.

A trust account receipt is to – have printed on it – the property agent's name or the business name under which the property agent carries on business; and the ABN or ACN for the property agent or business named; and the receipt number; and the words "trust account"; and state – the date on which the trust money was received; and the name of the person on whose behalf the money was paid; and the transaction to which the money relates; and the form in which the money was received; and the amount of money received; and be signed by – the property agent; or a person approved by the property agent to act for or on behalf of the property agent.

A property agent must ensure that trust account receipts are – consecutively numbered; and printed with those numbers by a machine. Fine not exceeding 50 penalty units.

A property agent must make at least one duplicate of each trust account receipt. Fine not exceeding 50 penalty units.

A property agent must keep a record of all deposits of trust money into a trust account. Fine not exceeding 50 penalty units.

The trust account deposit record is to – have printed on it – the property agent's name or the business name under which the property agent carries on business; and the words "trust account"; and state – the date on which the money was deposited into the trust account; and the account number of the trust account; and if the money was in the form of a cheque, the name of the drawer of the cheque; and be signed by – the property agent; or a person approved by the property agent to act for or on behalf of the property agent.

A property agent must make at least one duplicate of each trust account deposit record. Fine not exceeding 50 penalty units.