RE Agent Lodges Caveat for Commission!

Hi Terry,

thanks for the heads up. A couple of points though: would it not be in the interests of the agent to have negotiated that the purchaser provide a deposit equal to (or more than) the selling commission?

Aren't the rights of agents protected by the provisions of the contract of sale eg: where the agent is not the deposit holder? Otherwise it would raise a little grey area of where the solicitor is the deposit holder but not privy to the sales agreement and rate of commission payable to the agent, would it not?

I would ensure that you instruct your REA (in writing) that EVERY $ offered be accepted as a deposit (just $1 is all that is required to show 'consideration') to form a finding contract )once you 'accept' the 'offer'.
If the REA forces a buyer to pony up 10% deposit will proberbly frighten the buyer away, especially if they are making several offers at a time (with the intention to go with the first one accepted).
The first home I purchased, I held with a $10 deposit.

OK, accepted….so why not include a clause in the REA contract that the "commission is due and payable within 24 hours of settlement"; = no settlement, no commission.
This should ensure that he REA agent moves the deal long to closure ASAP as only then will they be entitled to any commission.
Any other clause would have the effect that a REA would be entitled to their commission once the contract is accepted, even if their is a 6 month deplay in settlement which (for a variety of reasons) may never be settled on that buyer. 
Without a 'settlemt' clause, it would also have the effect that a REA would be entitled to a commission on any subsequent sales contract should the first one fall over.

I was thinking along the lines of (ref REINSW SA00200) Agent's Remuneration Cl 3 ii) & vi)

It would be the most recent/current version but I dare say the clause wouldn’t have changed a great deal over the years.

Mick Hardman, please get your facts right. I am not “up on charges” at all. Consumer Affairs Victoria (CAV) is fighting a “turf war” in order to protect the monopoly currently enjoyed by real estate agents. According to CAV only a licensed real estate agent is permitted to negotiate the sale or the purchase of real estate on behalf of a client. This is a clearly ludicrous assertion, and one that was soundly dealt with nearly 10 years ago in Canada (see http://www.lawsociety.bc.ca/docs/publications/reports/RealEstateActSubmission.pdf).

CAV has asked the Supreme Court of Victoria to make declarations on the role of the lawyer, and are seeking injunctions to prevent my firm Lawyers Real Estate from doing what CAV has permitted it to do for nearly a decade.

Your suggestion that there are criminal charges involved is clearly defamatory, and you should now publicly withdraw that imputation.

As for lawyers using caveats to secure fees, I have no knowledge of that and I do not support it. Having said that, the issue regarding the sneaky stamp is that it was attached to the real estate agent’s Exclusive Sale Authority in circumstances that made it unlikely that the client would see it our enquire about, and this is why the issue was raised.

Scott, that’s where the naivete lies in this industry. I don’t purport to act as a real estate agent. I am a lawyer doing what lawyers did before legislation in the 1920’s invented real estate agents, and what they are still entitled to do.

Just to make the point as simple as possible, a doctor can give a patient an injection without having to be a Registered Nurse. Similarly, a real estate agent can upload information to the internet, prepare contracts and negotiate sale terms without having to be a licensed real estate agent. To this day Consumer Affairs Victoria has been unable to nominate a single task I undertake as a lawyer who assists clients to sell real estate for which I must hold a real estate agent’s licence. Do I need a real estate agent’s licence to order a “For Sale” board?

For too long we have watched people whose “real” job is selling mobile phones or white goods come into the industry to “have a go at selling real estate” and then to puff themselves up as real estate professionals. And then as soon as times get tough, they head back to what they do best (hence the Financial Review’s revelation that 10,000 real estate agent have left the industry – they’re not unemployed, they’re just doing what they did before they had a go at real estate.

As a property lawyer I do all of the heavy lifting in a real estate transaction, preparing sale documents, providing legal advice to parties, telling the real estate agent what s/he can or can’t do, and then fixing up the dumb mistakes the real estate agent has made so that the sale can proceed to settlement.

Now, tell me again, why do I need a real estate agent’s licence?

And to finish off, I can declare that I hold a full real estate agent’s licence which was granted to me on the basis of recognition of prior learning as a property lawyer. I choose not to use it. Why? Because it’s as useful to me as a first aid certificate is to paramedic!