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The current Act which governs Real Estate Agents in the sale of residential property (Property Agents and Motor Dealers Act) is on its last legs and a new Act, to be named The Property Occupations Act will, when passed by Government, then govern real estate agents and the selling of residential property in Queensland.
There are a number of changes under the new act which has been designed with a view to cutting red tape and improving the operation of the legislation. This will be welcome news for all stakeholders in the real estate industry as the existing PAMDA has been a nightmare.
Notable changes include:
- Streamlining home sale contracts and statement – currently PAMDA prescribes a complex process which must be followed when presenting and delivering residential real estate contracts. These processes require several approved forms to be presented and delivered to a buyer in a specified way and order. In addition, failure to comply with these provisions constitutes grounds for terminating the Contract. The existing Warning Statements (information sheets) will be replaced with a simpler requirement for a prescribed statement to be included in the contract, once, and in a conspicuous way, directly above where the buyer executes the Contract.
- The maximum commission constraints which an agent can charge will be removed meaning an agent can charge whatever commission they wish, provided of course, the Seller agrees to it.
- The prohibition on agents receiving a commission for beneficial interest sales will be removed provided the seller acknowledges and agrees to the agent acquiring the beneficial interest in the Sellers property.
- The Lawyers Certificate requirements will be removed.
- The limit on lengths of appointments for a sole or exclusive agency will be extended from 60 to 90 days.
- The requirement for agents to disclose to a buyer the commission the agent is receiving from the seller will be removed.
- Agents will be allowed to disclose the fact that a reserve price has been set for a property going to auction (but not the reserve price itself).
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What Does ‘De Facto’ Mean for Me?
Family Law, General, PersonalGenerally the question of whether or not a de facto relationship existed will occur and one of them seeks to divide up the property. When this happens, the dynamics of the relationship is reviewed to establish whether or not the couple have/has lived together in a ‘genuine domestic basis’.
The term ‘genuine domestic basis’ contains a number of factors and is the foundation of what forms a de facto relationship.
These factors are contained in the Family Law Act and include:-
• Length of the relationship;
• Did the parties live together, and if not why not;
• Whether a sexual relationship existed between them;
• The degree of financial dependence or interdependence and any arrangements for financial support;
• Ownership, use and acquisition of property;
• Whether the relationship is or was registered under a State law as a prescribed kind of relationship*;
• The degree of commitment to a shared life together;
• The care and support of children;
• The reputation and public aspects of the relationship.
This is not an exhaustive list and the particular circumstances of each couple are taken into account. No one factor is more important than the other nor is the genders of the couple.
There is a common misconception that couples need to live together for two (2) years before they are classified as de facto partners. This is not correct. Living together in a ‘genuine domestic relationship’ does not have a specific time period associated with it.
However, there are time factors which may apply when a party wishes to commence court proceedings for division of property.
Generally, the question of whether a de facto relationship exists is relatively simple to answer and most parties agree when separation occurred. However this can become a complex issue. For example, what happens in a situation where a couple continues to live in the same house to raise their children, but in all other respects are living separately? In this instance one party may believe that they have separated (they may no longer be sharing a bedroom or they may be keeping monies separate), but the other party may believe they are still together.
The key question which needs to be answered is – did one party form the intention to separate and did s/he act on that intention? A secondary matter is – was that intention to separate communicated to the other party?
If this is disputed, then the couple’s actions and their finances will be relevant. For example:-
• has a party been excluded from the other party’s family events;
• did they go out together as a ‘couple’,
• has the other party been removed as a spouse/partner from tax returns, or
• have they severed their financial connection to such an extent to demonstrate the lack of mutual commitment to a shared life?
If separated couples are unable to agree whether a de facto relationship existed or not, or about the date of separation, then the Family Court has the power to make a declaration on this matter.