Letting Appointments - Have You Got Them Right?

27 September 19

LETTING APPOINTMENTS - HAVE YOU GOT THEM RIGHT?


Unlike in Queensland where we have the Government prescribed POA Form 6, NSW has no standard form for an Appointment to Let – particularly for short-term lettings. Consequently, there are numerous different versions of the agreements being used, including many that are not compliant with the requirements of the Property, Stock and Business Agents Act and its Regulations.


The Act states that a licensee is not entitled to any commission or expenses from a person for services performed unless:


(a) the services were performed pursuant to an agreement in writing (‘Agency Agreement’) signed by or on behalf of the person and the licensee;


(b) the Agency Agreement complies with any applicable requirements of the Regulations; and


(c) a copy of the Agency Agreement signed by or on behalf of the licensee was served by the licensee on that person within 48 hours after the agreement was signed by or on behalf of that person.


Many management rights operators do not cover off on all 3 parts of these requirements.


The Regulations set out the required contents of Agency Agreements. The applicable schedules will depend on the services for which the agent is being engaged.


In summary, the Agency Agreement must specify the following:
 Address of the property;
 The names and addresses of each of the parties (including the licensee);
 The Licence Number;
 Any Business Name under which the licensee conducts business;
 That the owner warrants that the owner has authority to enter into the agreement;
 Particulars of the extent of the authority of the licensee to act as agent for the owner;
 Period for which the agreement remains in force or that the agreement remains in force until terminated;
 How and when the agreement can be terminated;
 Expenses: Specify that the licensee is entitled to reimbursement for expenses, a description of the expenses including amounts and that they cannot be varied except with the agreement in writing of the owner;
 Remuneration: Circumstances when the licensee is entitled to remuneration (whether by way of commission or otherwise), amount or the method of calculation and when the remuneration is payable;
 Manner and frequency with which the agent is required to account to the owner.

The Letting Appointment must also set out the extent of the agent’s authority (including any limitations on their authority) to undertake the following in connection with the management of the property:
 Obtaining references, arranging inspections and choosing a tenant for permanently let complexes;
 Entering into and signing a tenancy agreement;
 Undertaking inspections;
 Effecting repairs and maintenance;
 Paying disbursements and expenses;
 Collecting rent;
 Receiving, claiming and disbursing rental bond money;
 Serving notices for breach of tenancy agreement or terminating same;
 Taking steps to obtain vacant possession and recover monies owing to the owner;
 Representing the owner in any proceedings;
 Paying accounts relating to the property;
 Advertising the property;
 Reviewing rent at the end of a tenancy.


The Letting Appointment may also contain additional terms, provided they are not inconsistent with the above requirements.


Generally, legal advisers do not review the individual Letting Appointments unless specifically instructed.
If you have not already done so, it is strongly recommended that you review any Letting Appointments that you are using to ensure compliance with the Regulations. If you are in any doubt, it is suggested that you obtain legal advice.

 

Article Written by Col Myers of Small Myers Hughes Lawyers

 
Liability limited by a scheme approved under Professional Standards Legislation
Disclaimer – This article is provided for information purposes only and should not be regarded as legal advice 

Additional Documents

Click here to download: 2019_10_Oct___Letting_Appointments_Have_You_Got_Them_Right.pdf

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