Agency support

Agent appointments

The terms and conditions that are annexed to an agency’s Form 6 can prove vital in the event of an owner dispute.

Most versions in general usage make owners liable for commission where a sale contract is entered into after the expiration of the appointment.

The terms in general usage do not guarantee payment unless the agent took steps during the term so as to be the effective cause of the sale. Nor do they include an indemnity in favour of the agent for liability arising from the actor neglect of the owner.

Real estate offices must also exercise care in relation to the compliance issues pertaining to exclusive agencies and renewal of appointments.

Solutions to all of these issues are available through QBPL’s Real Estate Agency Advisory Service.

Sales practice

Most contracts require payment of the deposit from “on the day the buyers sign” or “on acceptance” of the contract. What then if a deposit is received into the agent’s trust account by EFT overnight following such an event.

Will the buyer be in breach? Will the agent have failed their duty by not accepting a cheque for payment of the deposit at the time of signing?

Is a special condition required to ensure payment of the deposit by close of business on the date of signing? Should the agent have cautioned the buyer that EFT payment should be made at least 24 hours prior to the due date?

Have immediate access to the answers to all of these questions and more with QBPL’s Real Estate Agency Advisory Service.

Residential property management

Residential Tenancies and Rooming Accommodation Act s 206 (3) specifies that as a consequence of an agent giving his details to a tenant – as required at the start of a tenancy – the agent thereafter “stands in the lessor’s place for a prescribed proceeding” and a “proceeding may be taken against the agent as if the agent were the lessor”.

Is your agency protected against claims by tenants may directly against it rather than an owner? Does your Appointment include an appropriate indemnity to meet such expenses and its legal costs?

If the answer to either of these questions is “no”, your property management office is at substantial financial risk from tenants suing for any deficiency in the property or rental arrangements.

Call QBPL’s Real Estate Agency Advisory Service to discuss a review of your standard Appointment terms.

Property Management add-ons

Can managing agents charge a mark-up for a service provided to owners eg mowing and landscaping?

POA s 90 defines – in relation to ‘expenses’ – the term “actually expended” as excluding any component of agent “benefit”. This would appear to prevent agents from adopting similar practice in respect of appointments entered into under the POA.

Can management commission for online bookings from aggregators e.g. Wotif? If so, should the commission be calculated by reference to the net owner receipt (after Wotif commission) or on the gross sum?

POA s 88 provides the commission must be worked out on “the actual amount of rent collected”. The construction of the section still leaves this question open.