1. That developers who are engaged in the sale of real estate hold a developer's licence and that their employees who are involved in marketing and sales hold a separate salesperson's registration. It is proposed that such licensing be required where the developer engages in the sale of more than 10 properties in any 12 month period.
   The Committee has recognised that the sale of real estate is currently either carried out by licensed Real Estate Agents or by marketers engaged directly by developers. Requiring developer's representatives to be licensed will effectively result in all persons engaged in selling/marketing real estate in Queensland being required to hold an appropriate licence. All licensees will then be regulated by the Auctioneers and Agents Act.
   
2. That all persons engaged in activities which fall under the definition of "Real Estate Agent" hold Real Estate Agent's Licenses.
   
3. That the Act be amended so as to provide that it will be an offence for a person to make a false or misleading misrepresentation in relation to the sale of Real Estate about:
   i. the proper value of the real estate;
   ii. the income potential from the renting of the real estate;
   iii. the date of the last sale of the real estate and the purchase price paid by the previous purchaser; and
   iv. the income taxation ramifications of the transaction.
   Further, it is proposed that directors of companies be personally held responsible for any misrepresentations made by their employees and representatives.
   This proposal is a response to complaints by many purchasers of real estate that they have received "optimistic" or simply false information about the value of the property they are buying, its income potential or tax benefits.
   
4. That Real Estate Agents be obliged to disclose whether they are related personally or commercially to any other parties that are recommended to a purchaser by that Real Estate Agent such as finance brokers, solicitors, valuers etc. Further it is proposed that the nature of the relationship be disclosed and the details of the financial or other benefits obtained by the Real Estate be disclosed.
   
5. That a personal or commercial relationship be defined to include:
   i. a relationship where a person is accustomed, or under an informal or formal obligation to act in accordance with the directions or instructions of the other;
   ii. the relationship of a person to a corporation where that person is in a position to control or substantially influence the corporation's conduct; or
   iii. a relationship where one person may be influenced by an expectation of work being obtained by reference from another person.
   These recommendations are designed to minimise or at least allow purchasers to become aware of relationships which may exist between Real Estate Agents/Marketeers, Solicitors, Finance Brokers and Taxation Consultants and others which may result in them failing to obtain independent and objective advice in relation to a real estate transaction.
   
6. That a cooling off period apply in respect of sales which have arisen through an unsolicited invitation to prospective purchasers. It is not proposed that there be any general cooling off period introduced in respect of the sales of real estate in Queensland.
   This recommendation is aimed at having cooling off periods apply to transactions which flow from unsolicited invitations to prospective purchasers which are typically made by marketeers as distinct from the traditional scenario where a person who is wishing to purchase real estate may approach a real estate agent or respond to an advertisement placed by a real estate agent.
   It is proposed that the cooling off period be for a period of 5 business days from the date that the purchaser is in physical receipt of a copy of the Contract signed by the Vendor. The cooling off period could be waived if the purchaser obtains a certificate from an "independent solicitor".
   The independent solicitor must certify that he or she has never represented the vendor, a director or shareholder of the vendor or any other person or corporation which the solicitor is aware of has a relationship with the vendor or the vendor's Real Estate Agent or any person or corporation associated with the vendor.
   
7. That lenders be encouraged to modify lending practices where it becomes apparent to them that a property sold has a value different to that specified in the Contract.
   It has been widely thought that there would have been a recommendation that lenders be obliged to provide a copy of valuation reports to purchasers particularly in respect of sales resulting from unsolicited invitations. Professor Duncan has however recognised that the Auctioneers and Agents Act is not the appropriate Legislation to regulate the activities of lenders but has recommended that approaches be made to the Australian Securities and Investments Commission and other regulatory bodies to provide legislative assistance in this regard.
   That the existing voluntary code of conduct for Real Estate Agents be modified and become a mandatory code of conduct breach of which will give rise to disciplinary proceedings against offending Real Estate Agents or Real Estate sales persons.
   The date for lodgement of submissions to the Review Committee has now passed. The Committees recommendations will now be considered by Price Waterhouse Accountants with a view to ascertaining how they relate to the Public Benefit Test under the National Competition Policy. The recommendations will then go back to the Review Committee to prepare a final report and draft legislation for submission to Cabinet. It is anticipated that the draft bill will be released for public comment.
   MBA Lawyers expects that most of the recommendations for the regulation of the Real Estate marketing industry will be adopted by the Government. Whilst the recommendations will undoubtedly provide additional protection to purchasers of Real Estate the development industry is rightly concerned at the negative impact this additional regulation may have. The impact the proposed legislation is likely to have on sales volumes will no doubt receive careful consideration by all property developers.

On 18 August 2003 the Our Living City of Gold Coast planning scheme shall commence and regulate development applications within the Gold Coast local government boundary areas.

As an Integrated Planning Act 1997 (“IPA”) compliant planning scheme the new scheme shall supersede the prior transitional City of Gold Coast Planning Scheme 1994 (“GCCC scheme”) and Albert Shire Planning Scheme 1995 (“ASC scheme”).

Any development application for a preliminary approval or development permit for material change of use or reconfiguration lodged on or after 18 August 2003 shall be assessed and determined under the new IPA compliant scheme (Section 3.5.3 of IPA). As a matter of law any development application lodged prior to commencement of the new IPA compliant scheme (18 August 2003) shall be assessed against the applicable transitional planning scheme but the local government may give such weight as is appropriate to the new scheme under Section 3.5.6 of IPA.

Notwithstanding commencement of the new planning scheme shall supersede the two (2) transitional planning schemes in operation within the GCCC local government area an opportunity shall subsist for a period of two (2) years (up to 17 August 2005) for an applicant to lodge a development application (superseded planning scheme). On receipt of a development application (superseded planning scheme) GCCC as assessment manager must make an election whether the development application shall be assessed and determined under the superseded transitional planning scheme or the new IPA planning scheme.

As a result of commencement of IPA on 30 March 1998 the processes (IDAS) and terminology (e.g. material change of use rather than rezoning) changed. Any application which under the repealed Act formerly required public notification was assessed as impact assessable whilst applications which did not previously require advertising (e.g. subdivision) were categorised as code assessable.

Despite whether the development application is impact or code assessable a right of appeal subsists under IPA (Sections 4.1.27 and 4.1.28) (formerly Section 7.1(1) of the repealed Act) for a submitter or aggrieved applicant to appeal to the Planning & Environment Court against the whole or part of the decision of the assessment manager.

Apart from exercising appellant jurisdiction on development applications the Planning & Environment Court is empowered to grant declaratory relief and ancillary orders under IPA (Sections 4.1.21 and 4.1.22 of IPA). A wide power is granted to the Planning & Environment Court to make declarations over a matter done, to be done or that should have been done for IPA, the construction of IPA or planning instruments under IPA, the lawfulness of land use or development or an infrastructure charge.

Pursuant to cessation of the operation of the transitional provisions (Sections 6.1.29 and 6.1.30 of IPA) new assessment and decision making processes shall be implemented by GCCC as assessment manager (i.e. Section 3.5.3 to 3.5.15 of IPA).

As a result of the extensive experience of our Antony Knox acting for developers and local governments within this specialist jurisdiction during the preceding thirteen (13) years queries should be directed at first instance to him.

Queensland Government should fund image boost for property industry
By Tony Lenan
The introduction of new legislation to regulate property marketing in Queensland should be immediately followed by a government-funded campaign to rebuild the State's image as a place to invest.

The Queensland Government should be planning a promotional strategy now to back up its crackdown on marketing practices.

It needs to be saying to the investment markets in Australia and abroad that Queensland real estate is a much safer proposition.

We, at MBA, will be approaching Gold Coast property industry organisations and developers for their support in making representations to the Government for funding and to emphasise the importance of a positive public relations follow through on the legislation.

The State's real estate investment market is worth hundreds of millions of dollars annually and it would not be unreasonable for the property industry to now be asking for some real funding to help it win back some credibility.

If it is appropriate to spend millions annually on promoting tourism, it is appropriate to
throw some funds into backing up legislation that will help to improve the image of the Queensland real estate industry that makes such a huge contribution to our economy.
Benefits of the regulations ultimately adopted should be promoted nationally and internationally.

The image of the Queensland real estate industry has been damaged but the fact remains that a very legitimate property investment market exists in this State and it has generated huge benefits for our economy.

Unfortunately some highly reputable developers have suffered and they need to receive
some government support for the restoration of their industry's image.

There has been widespread negative media coverage of Gold Coast 'marketeering' practices, throughout Australia, New Zealand and South East Asia.

A post-GST and post-Olympics slump in the property market is highly likely and the industry will need to capitalise on every possible positive.

I have recently reviewed a Queensland Department of Fair Trading issues paper published as part of the department's ongoing review of the Auctioneers and Agents Act.

The paper flags a number of major reforms including: licensing of all people who sell real estate; a mandatory code of conduct; disclosure of relationships between real estate agents, solicitors and financial advisors and the introduction of cooling off periods for real estate contracts.

Register here to support our approach to the State Government.

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