How I Became An Estate Agent’s Hero
by Tim O’Dwyer M.A., LL.B
Solicitor
Consumer Advocate
watchdog@argonautlegal.com.au
Brisbane conveyancing solicitor Chris Bridge became concerned when he noticed that his buyer client’s contract included a special condition authorising the pre-settlement release of the selling agent’s commission. Such a “pre-draw” practice may be legal elsewhere if the contracting parties agree, but not in Queensland where Section 385 of the Property Agents and Motor Dealers Act (PAMDA) permits agents to take commissions from their trust accounts only after contracts settle. 
So Mr Bridge promptly and bluntly complained to the Office of Fair Trading that the seller’s agent was “stealing the buyer’s money”. Fair Trading reported back, after this complaint had been investigated, that disciplinary action would be taken in the Commercial & Consumer Tribunal. (See: Early Release (Or Stealing?) Of Commission )
Three charges (arising from four settled sales) were brought, not against the real estate agency, but against the licensed agent involved (let’s call him “Danny”):
- That, in breach of PAMDA Section 385, he withdrew commissions totalling $48,389 from deposit moneys before settlements occurred;
- That, in breach of PMDA Section 379, he paid deposits totalling $121,855 into an account which was not the agency’s trust account;
- That, in breach of PAMDA Section 496, he acted in a unprofessional way while performing these acts.
No matter that Danny was neither the proprietor of the agency which made the sales, not the salesperson involved. This recently acquired agency was owned by a couple who, although registered salespersons, had yet to obtain their agents’ licences. Danny had been engaged in the meantime to act as the agency’s locum principal. He received a weekly fee but no commissions from agency sales.
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4 Comments
Tim Odwyer I thought you were on consumers side but now your going over to DARK side?
Hi Sal,
Tim is on holidays at the moment, but I am sure he would not disagree with me when I say that it is not a matter of taking “sides”; helping someone who is done an injustice is always his focus.
I have always believed that in QLD being in a position of sales for a long period of time should not give that salesperson a service of time right to apply for a full real estate license to operate as an officer in effective control without having studied for his full license so to at least develope the appropriate responsible education, legal responsibilities and skills to operate as a principal of running an estate agency practice.
If he was infact highly experienced with over twenty years in the property business one thing that all estate agents know is “Never Assume Anything” when it comes to trust accounting, transparancy and only best practice should apply, someone telling you it is ok to do this or that should be checked out thoroughly since you are put into the position of the responsible agent with significant legal responsibilities, possible fines and even gaol!!
These guys think real estate is like running a coffee shop and the fact is it isn’t and never will be.
Legislation changes and updates, business law, contracts and special conditions, trust accounting and employment of staff and finally succession, are all part of professionally operating a responsible real estate practice not a she will be right attitude. Lets hope he has learned from the experience.
I commend the legal support provided for him all the same
Thanks for the feedback, Lynton.
Of course I take issue with ‘contracts and special conditions’ being part of real estate practice.
I was pretty much in agreement with you otherwise until you mentioned ‘succession’.
Please explain.