Real Estate and Business Agents Act 1978
Real Estate and Business Agents and Sales Representatives Code of Conduct 2016
Real Estate and Business Agents Act 1978
Real Estate and Business Agents and Sales Representatives Code of Conduct 2016
Western Australia
Real Estate and Business Agents and Sales Representatives Code of Conduct 2016
Contents
Part 1 — Preliminary
1.Citation1
2.Commencement1
3.Terms used1
4.Code applies to all agents and sales representatives2
Part 2 — General duties
5.Acting in best interests of client3
6.Duty of care, diligence and skill3
7.Duty of honesty3
8.Disclosure where related to vendor3
9.Confidential information3
10.Client’s instructions4
11.Misleading or deceptive conduct4
12.Unconscionable conduct4
13.Fiduciary obligations4
Part 3 — Employees
14.Supervision and control of employees5
Part 4 — Conflict of interest
15.Acting for multiple clients in same transaction6
16.Referrals and recommendations6
Part 5 — Appointment and payment of fees
17.Appointment to act8
18.Restriction on discounts and rebates8
19.Further restriction on reward for service8
20.Claiming expenses from client9
Part 6 — Specific duties of agents and sales representatives
21.Terms used10
22.Certain inducements prohibited10
23.Advertising10
24.Material facts11
25.Client identification verification11
26.Duties regarding opinion of market price12
27.Communicating offers to client12
Part 7 — Repeal and transitional
28.Code of Conduct for Agents and Sales Representatives 2011 repealed13
29.Transitional13
Notes
Compilation table14
Defined terms
Real Estate and Business Agents Act 1978
Real Estate and Business Agents and Sales Representatives Code of Conduct 2016
This code comes into operation as follows —
(a)rules 1 and 2 — on the day on which this code is published in the Gazette;
(b)the rest of the code — on the day after that day.
(1)In this code, unless the context otherwise requires —
Act means the Real Estate and Business Agents Act 1978;
agent means a licensed agent;
client —
(a)of an agent or sales representative, includes, where the context permits, a prospective client; and
(b)of a sales representative, includes a client of a licensee or developer, who is the employer, principal or partner of the sales representative;
commission includes a fee, charge or other remuneration, whether monetary or otherwise;
regulations means the Real Estate and Business Agents (General) Regulations 1979;
transaction includes the negotiation of a transaction.
(2)A term has the same meaning in this code as it has in the Act unless the contrary intention appears in this code.
4.Code applies to all agents and sales representatives
(1)Each agent or sales representative acting for a client must comply with this code.
(2)Subrule (1) applies to, and in respect of, all agents or sales representatives including where the agent or sales representative is a principal of a business or an employee of a licensee.
5.Acting in best interests of client
When acting for a client an agent or sales representative must act in good faith in the best interests of the client.
6.Duty of care, diligence and skill
When acting for a client an agent or sales representative must exercise due care, diligence and skill.
When acting for a client an agent or sales representative must be honest in all dealings with the client, other agents and sales representatives, and other persons involved in a transaction.
8.Disclosure where related to vendor
(1)When acting for a client who is a vendor an agent or sales representative who is related to the vendor as described in subrule (2) must disclose that in writing to each purchaser.
(2)An agent or sales representative is related to a vendor if the agent or sales representative —
(a)has a controlling interest in the vendor; or
(b)is a spouse, de facto partner, child, grandchild, sibling, parent or grandparent of the vendor.
(1)An agent or sales representative must treat as confidential information obtained while acting for a client that has not been made public and that —
(a)is by its nature confidential; or
(b)was specified as confidential by the person who supplied it; or
(c)is known by the agent or sales representative to be confidential.
(2)Information to be treated as confidential under subrule (1) must not, directly or indirectly, be disclosed by an agent or sales representative to another person, unless —
(a)the disclosure of the information is required by law; or
(b)the client is fully informed of the proposed disclosure and agrees to it in writing.
When acting for a client an agent or sales representative must —
(a)provide each service relating to the client’s instructions within a reasonable time after receiving the instructions; and
(b)act in accordance with the client’s reasonable instructions.
11.Misleading or deceptive conduct
When acting for a client an agent or sales representative must not engage in conduct that is misleading or deceptive or is likely to mislead or deceive within the meaning of the Australian Consumer Law (WA) Part 2‑1.
When acting for a client an agent or sales representative must not engage in unconscionable conduct within the meaning of the Australian Consumer Law (WA) Part 2‑2.
An agent or sales representative must comply with any obligation that may arise as a result of any fiduciary relationship between the agent or sales representative and a client.
14.Supervision and control of employees
(1)In this rule —
agent who carries on a business means —
(a)an agent who personally carries on a business; or
(b)a person in bona fide control of a business carried on by a body corporate; or
(c)a person in bona fide control of a business carried on by a firm.
(2)An agent who carries on a business must take all reasonable steps to ensure that every person employed in or engaged by the business whether paid or unpaid complies with —
(a)the provisions of the Act, the regulations and this code as are applicable to the person; and
(b)any other law applicable to the business and the person.
(3)An agent who carries on a business is responsible for the supervision and control of the work of every person employed in or engaged by the business whether paid or unpaid.
(4)An agent who carries on a business must —
(a)personally manage the business; and
(b)frequently attend the offices at which the business is carried on.
15.Acting for multiple clients in same transaction
An agent or sales representative must not act for more than one client in a transaction unless, before the agent or sales representative begins so acting, the clients gave fully informed written consent for the agent or sales representative to act for more than one client in the transaction.
16.Referrals and recommendations
(1)In this rule —
supplier means a person supplying any goods or services and includes a finance broker and a settlement agent.
(2)An agent or sales representative who recommends a supplier to a client must disclose in writing to the client —
(a)any significant relationship, connection or affinity between the agent or sales representative and the supplier; and
(b)any potential conflict of interest, and the nature of that potential conflict of interest, arising from the relationship, connection or affinity referred to in paragraph (a).
(3)An agent or sales representative who recommends —
(a)a supplier, other than a settlement agent, to a client must disclose in writing to the client any commission accepted, directly or indirectly, by the agent or sales representative from any person for the recommendation; or
(b)a settlement agent to a client must not accept, directly or indirectly, any commission from any person for the recommendation.
(4)Before being appointed to act by a client who has been referred by any person to an agent or sales representative, the agent or sales representative must disclose in writing to the client any commission paid or given by the agent or sales representative, directly or indirectly, for the referral.
Part 5 — Appointment and payment of fees
(1)An agent or sales representative who does not have an appointment to act from a person must not —
(a)act as an agent or sales representative for the person; or
(b)represent that the agent or sales representative is acting for the person.
(2)Any change made to the appointment to act must be in writing and may be made by way of amendment to the original document that appointed the agent or sales representative.
18.Restriction on discounts and rebates
(1)An agent or sales representative must not, in connection with a transaction or a service provided to a client by the agent or sales representative, demand or receive a discount or rebate that relates to a service provided by a service provider, unless the agent or sales representative has —
(a)disclosed to the client the full nature, extent and amount of the discount or rebate; and
(b)obtained the written consent of the client to the demanding or receiving of the discount or rebate by the agent or sales representative.
(2)In subrule (1), a service provider includes a stocktaker, tradesperson and a person providing a service relating to advertising.
19.Further restriction on reward for service
An agent or sales representative must not demand or receive a commission, reward or other valuable consideration from any person for the provision of a service that is —
(a)greater than the amount agreed in writing with the client; or
(b)unjust in the circumstances; or
(c)not initialled on the agreement by the client.
20.Claiming expenses from client
(1)If an agent or sales representative is entitled to demand or receive reimbursement from a client of an expense that the agent or sales representative has incurred, the agent or sales representative must promptly give to the client all information that the client may reasonably require in order to be satisfied —
(a)as to the amount of the expense; and
(b)that the expense was properly incurred by the agent or sales representative.
(2)An agent or sales representative must not demand or receive reimbursement of an expense that the agent or sales representative has incurred in respect of advertising, sign boards, printed materials and promotions unless —
(a)the client has agreed in writing to pay the expense; and
(b)the agreement specifies a maximum amount that the agent or sales representative may demand or receive by way of reimbursement; and
(c)the maximum amount is stated on the agreement and has been initialled by the client.
Part 6 — Specific duties of agents and sales representatives
In this Part —
business means any commercial undertaking or enterprise in respect of any profession, trade, employment, vocation or calling;
lease includes let and the acquisition under lease or letting of tenancy or occupation;
sale includes an exchange or other disposal.
22.Certain inducements prohibited
(1)An agent or sales representative must not knowingly induce or attempt to induce a person to breach —
(a)an appointment to act; or
(b)a contract of sale of any real estate or business; or
(c)a contract to lease any real estate or business.
(2)An agent or sales representative must not knowingly induce or attempt to induce a person to enter into a contract under which the person would be liable to pay a commission to more than one agent or sales representative in relation to a sale or lease of any real estate or business.
(1)An agent or sales representative must not, without the written consent of a client —
(a)advertise that any real estate or business is for sale or lease by the client; or
(b)erect or display a notice of sale or lease for the client.
(2)When acting for a client an agent or sales representative must not —
(a)advertise or offer for sale or lease any real estate or business at a price or on any other terms, other than as authorised by the client; or
(b)advertise or offer to purchase or lease any real estate or business at a price or on any other terms, other than as authorised by the client.
(1)Prior to the execution by a client of any contract relating to the sale or lease of any real estate or business the agent or sales representative must make all reasonable efforts to ascertain or verify all facts material to the transaction (the material facts) that a prudent agent or sales representative would ascertain or verify.
(2)An agent or sales representative must promptly communicate a material fact to any person who may be affected by the material fact and appears to be unaware of it.
25.Client identification verification
An agent or sales representative who receives instructions to offer real estate for sale must —
(a)promptly obtain a copy of the certificate of title for the real estate and refer to that copy for the name of the registered proprietor; and
(b)as soon as practicable after receiving the instructions and before a contract for that sale is executed, make all reasonable efforts to verify —
(i)the identity of each person who claims to be, or to act for, a person who is to sell all or any of the real estate; and
(ii)each person’s authority to sell the real estate, or to act for the person selling it.
26.Duties regarding opinion of market price
If an agent or sales representative gives a person an opinion as to the current market price of real estate or a business, the agent or sales representative must not act as an agent or sales representative for the person unless the agent or sales representative gives the person the following in writing —
(a)a statement of the opinion;
(b)the reasons on which the opinion is based;
(c)if available, information regarding the sale of similar real estate or businesses, supporting the opinion.
27.Communicating offers to client
When acting for a client an agent or sales representative must communicate each offer to the client as soon as practicable after the offer is made.
Part 7 — Repeal and transitional
28.Code of Conduct for Agents and Sales Representatives 2011 repealed
The Code of Conduct for Agents and Sales Representatives 2011 is repealed.
(1)In this rule —
transitional period means the period of 2 months beginning on the day on which the Real Estate and Business Agents and Sales Representatives Code of Conduct 2016 (other than rules 1 and 2) comes into operation.
(2)For the purposes of sections 34(1), 50(1) and 103(2)(c)(iii) and (4)(c)(iii) of the Act, an agent or sales representative to whom this rule applies is taken not to have acted in breach of this code.
(3)This rule applies to an agent or sales representative who during the transitional period —
(a)fails to comply with a provision of this code; but
(b)complies with the provisions of the Code of Conduct for Agents and Sales Representatives 2011.
1This is a compilation of the Real Estate and Business Agents and Sales Representatives Code of Conduct 2016. The following table contains information about this Code.
|
Citation |
Gazettal |
Commencement |
|
Real Estate and Business Agents and Sales Representatives Code of Conduct 2016 |
4 Oct 2016 p. 4275-90 |
r. 1 and 2: 4 Oct 2016 (see r. 2(a)); |
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]
Defined termProvision(s)
Act3(1)
agent3(1)
agent who carries on a business14(1)
business21
client3(1)
commission3(1)
lease21
material facts24(1)
regulations3(1)
sale21
supplier16(1)
transaction3(1)
transitional period29(1)