by Tim O’Dwyer M.A., LL.B
After firing more than a few verbal bullets over recent months at Queensland’s Attorney-General (and Fair Trading Minister) Kerry Shine in The Courier Mail and Gold Coast Bulletin newspapers, on ABC radio and here in the Australian Real Estate Blog, I finally got a response (of sorts). The critical issues, of course, had been the largely unregulated role of legally unqualified real estate agents in the preparation and execution of legally binding contracts and the consequent need for proper protection of real estate consumers.See:
Catch 24 On Agents’ Contracts
Who Will Pay The (Legal) Ferrymen?
Gold Coast Law Association Slams Agents And Calls For Contract Reforms
Deep North Agents “Re-licensed” to Practise Real Estate Law
Apart from my public fusillades, I had also written twice direct to the Attorney-General not only expressing my long-standing concerns but also giving him some examples of agents’ on-going contractual mischief. Finally this letter arrived from a senior policy advisor:
“Dear Mr O’Dwyer,
Thank you for your letters dated 21 December 2007 and 21 January 2008 concerning the Legal Profession Act 2007 and real estate agents preparing contracts. The Honourable Kerry Shine MP, Attorney-General and Minister for Justice and Minister Assisting the Premier in Western Queensland, has asked me to reply to you on his behalf.
Section 24(2) of the Legal Profession Act 2007 excludes various activities from the reservation of work to legal practitioners. The equivalent provision in the previous Legal Profession Act 2004 excluded real estate agents preparing or assisting persons in the preparation of contracts. Because it referred to any contracts and was not limited to contracts that agents would be expected to deal with in the ordinary course of their licensed activities, the wording of the exemption was tightened in section 24(2)(e) of the Legal Profession Act 2007.
After concern was expressed that the new wording might be too narrow for certain activities typically engaged in by licensees, a transitional regulation was made to urgently clarify the scope of the exemption. It exempts the activities of licensees authorised under the Property Agents and Motor Dealers Act 2000 and ancillary or incidental activities that are part of the ordinary course of business undertaken generally by a relevant licensee.
Under the Property Agents and Motor Dealers Act 2000 (PAMDA), before signing a contract, purchasers are advised, but not required, to obtain independent legal advice. However, it has been a longstanding commercial practice for PAMDA agents in connection with their authorised activities to complete the wording of contracts and insert special conditions at the request of the parties.
The Attorney-General would of course be concerned if legal practitioners are identifying deficiencies in contracts or clauses drafted by PAMDA agents.
The Queensland Law Society has expressed concerns about real estate agents engaging in contract preparation and the Attorney-General has agreed to meet with the Society to discuss this issue, to examine the extent of contract deficiencies and to consider what responses, legislative and otherwise might be necessary or appropriate for addressing this matter. To assist these discussions, you may like to write to the Law Society to inform it of your concerns and the issues that you have experienced in circumstances of contract deficiencies.
You have attached copies of sales contracts to your letters and allege breaches of the Property Agents and Motor Dealers Act 2000. It would be more appropriate for your clients, or you on your clients’ behalf, to formally lodge any complaint with the Compliance and Enforcement Branch, Office of Fair Trading, GPO Box 3111, Brisbane Qld 4001. This would ensure that if agents act contrary to the requirements of the Property Agents and Motor Dealers Act 2000 or the Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation 2001, investigation and appropriate action can be taken against offending agents.
I trust this information is of assistance.
Senior Policy Advisor “
After I’d cooled down considerably, I sent off a remarkably restrained reply expressing my deep disappointment…