- Fill in all sections
It’s essential that you don’t leave any fields in the agency agreement blank. If there are certain details that you don’t know (for example, an email address), write “unknown” or “to be advised”.
- Don’t amend the terms
Many of the terms in the agency agreement are prescribed by law. By making amendments or deleting terms, you may inadvertently cause a defect in the entire agreement, so always seek expert advice before doing so.
- Include the full names of all parties
It’s not sufficient to simply enter “Mr and Mrs X”. Check the names against those on the contract of sale to verify the names on the agency agreement are correct. All parties on the certificate of title must be included on the agency agreement. If a contract for sale is not available at the time of signing the agency agreement, check the names on a council or water rates notice.
- Ensure parties sign at the same time
Where there are multiple owners, it’s advisable that they sign the agency agreement at the same time. If you enter into an agency agreement with only one of the owners and then the other owner signs at a later date, a cooling off period applies from the date the last party signs the agreement.
- Confirm authority to sign
Where the property is owned by a corporation, you need to sight the relevant paperwork to ensure they have authority to sign on behalf of the company. Always check with ASIC to confirm how many directors there are. Where a corporation has two or more directors, then you must have two signatures.
- Clearly identify the property
Ensure all details are accurately entered on the agency agreement. Where multiple properties are being sold (for example, off-the-plan sales or strata properties), attach a schedule to the agency agreement setting out the details (including the estimated selling price) of each property.
- Specify the commission amount
This is particularly important where incentive clauses are included in the agency agreement. Clearly set out how the incentive is to be calculated to avoid ambiguity.
- Make the exclusive period clear
Don’t enter statements such as “this agreement expires 30 days after the auction”, because if the auction is cancelled the agreement becomes uncertain.
- Check the agency corporation licence is up to date
Remember, the agency agreement is for and on behalf of the company the sales agent works for. If the corporation licence has lapsed, every agency agreement is in jeopardy and you will have no entitlement to commission.
- Don’t delete the indemnity clause
If you delete the indemnity clause, you may void your professional indemnity insurance, which is the last thing you want to do. If something happens in the course of the proper performance of your duties (for example, a potential buyer is hurt during an inspection), you won’t be covered.
- Provide details of marketing
Itemise how the money allocated to marketing will be spent. It’s not sufficient to simply enter “to be confirmed” or “$5,000 for advertising” on the agreement. Set out each item, how much it will cost and when it is due and payable.
- Give the seller a copy of the signed agreement
Once the seller has signed the agency agreement, you must provide them with a copy within 48 hours. This copy can be provided via email if the seller has agreed to this form of communication. Also, don’t forget to give the seller a copy of the latest version of NSW Fair Trading’s Agency agreements for the of sale residential property fact sheet.
REINSW agreements and forms
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