Legislation relating to real estate agents

While there are minor variations in the statutory definition of real estate services throughout Australia, they mainly align with those contained in the Agents Act 2003 (ACT).

To paraphrase the Act, a ‘real estate service’ includes:

  • Buying, selling, exchanging, leasing, assigning or otherwise disposing of land
  • Negotiating on behalf of parties buying, selling, exchanging, leasing, assigning or otherwise disposing of land
  • Collecting payments under a lease or managing rental properties
  • Providing market appraisals of properties and businesses for clients.
  • There are common features about the way real estate agents must act which also apply in all jurisdictions, for example:
    • Only licensed or registered real estate agents are permitted to charge fees for their services
    • The appointment of a real estate agent should be recorded in writing, along with details of the property involved
    • The requirements for the investment of estate agent monies in trust
    • The need to maintain full and complete records
    • A fixed amount or rate of commission should be specified in the agreement (legislation in Queensland, Western Australia and Tasmania provides guidelines for consideration)
    • All agents are to contribute to funds that can be used to compensate those who suffer losses due to an agent’s misconduct
    • Agents should not benefit (except for their fee income) from the property they are dealing with without the written consent of their principal.

All states and territories except South Australia have codes or rules of conduct governing real estate agents and agents may also become liable for misleading conduct under the Competition and Consumer Act (Commonwealth). These provisions include the verbal or written communication of agents as well as the advertising activities they undertake. Furthermore, Victoria, ACT, NSW, South Australia and Western Australia have legislation prohibiting the practice of dummy bidding at auctions.