30 June 2017

Changes which affect the real estate industry

The Licensing Provisions Amendment Act 2016 will take effect on 1 July 2017. It amends a number of industry Acts in Western Australia, including the Real Estate and Business Agents Act 1978 and the Auction Sales Act 1973.

Amendments to the Residential Tenancies Act 1987 will take effect on 3 July 2017.

The amended Acts will be available from the State Law Publisher’s website after the amendments come into force.

The legislative amendments are summarised below.

Real Estate and Business Agents Act 1978 (REBA Act)

A real estate agent will be able to receive remuneration prior to settlement (at a time agreed between the real estate agent and the developer) in respect of sales off-the-plan for strata title properties and land development sales. Where this applies, when the commission will be paid should be stated in the contract between the agent and the owner/developer, or should be negotiated and agreed to by all parties in writing.

Amendments to the licensing provisions will:

• remove the requirement for an applicant under the REBA Act to verify the content of an application by way of a statutory declaration; and
• insert a new offence provision for a person who gives false or misleading information on a licensing or registration application or renewal. Contravention can result in a fine of up to $20,000.
• An amendment to the Regulations will help agents who wish to transition to working only as a sales representative.  They will be able to apply for a certificate of registration without having to undertake further study, as long as they have held a triennial certificate during the three years immediately preceding the making of the application.

Auction Sales Act 1973

• An applicant for an auctioneer’s licence will no longer be required to provide multiple copies of character testimonials to the Magistrate’s Court.
• Advertising of proposed applications will no longer be required.
• Three year licensing will be introduced using a phase-in process whereby existing general and restricted licence holders will initially be allocated licence periods of one, two or three years, and thereafter be granted periods of three years.

Application for an auctioneer’s licence is made to the Magistrates Court of Western Australia.

Residential Tenancies Act 1987

The amended tenancy agreements and forms mentioned below will be available from the Department's website and must be used from 3 July 2017 onwards. You should destroy any unused physical copies and replace any saved electronic versions of these amended documents.

Changes to Form 1AA Residential Tenancy Agreement, Information Sheets and Form 1C

• Form 1AA the prescribed tenancy agreement will no longer need a witness signature.  This will allow a lessor/property manager /tenant to sign and send the Form 1AA electronically pursuant to the Electronic Transactions Act 2011.
• The information sheets Form 1AC and Form 1AD must be provided to tenants at the start of a tenancy have been amended.
• Form 1C - Notice of Termination has been amended.

Notice of proposed entry to premises (Form19)

There are a number of circumstances in which a lessor may enter the premises.  For certain types of proposed entry, notice must be given in writing. From 3 July 2017 onwards, you must use Form 19 - Notice of proposed entry to premises for these circumstances (the types are listed on the form).

You will now be able to issue the notice without first having to make a reasonable attempt to negotiate a day and time for entry.

The form includes information about the tenant’s right to negotiate a more suitable time if the time is unduly inconvenient, and the obligation of the lessor to make a reasonable effort to negotiate a more suitable time.

Abandoned Goods

There are changes on how abandoned goods notices can be given to a tenant. 

Form 2 - Notice to Former Tenant as to Disposal of Goods and Form 3 - Notice as to Disposal of Goods have been amended to allow for the inclusion of email addresses.

Previously, where a lessor was storing goods abandoned by a tenant, within seven days of storing the goods the lessor had to complete Form 2 and send it to the tenant's forwarding address if provided, and complete Form 3 and publish it in a newspaper circulated throughout the state.

From 3 July 2017, you may only have to complete Form 2 and provide it to the tenant within seven days of storing the goods. You only have to complete Form 2 if:

• you can give the notice to the former tenant in person; or
• mail it to a forwarding address they have provided; or
• send it via electronic means, if they consent to this method.

However, if their address is unknown and you are unable to provide notice of abandoned goods via these means, you must complete Form 3, publish it in a newspaper circulated throughout the state within seven days and post it in a prominent position at the abandoned premises within nine days. You do not need to complete Form 2

Electronic serving of notices

It is now expressly stated any notice or document required or authorised to be given may be done so by electronic means, such as email.

To be able to serve notice effectively by electronic means, agreement to do so should be stated in the tenancy agreement, neither party should have withdrawn consent, and at the time the notice/document is issued it should be reasonable to expect that the information will be accessible and available at a later date.

Changes to the Magistrates Court process

The Magistrate’s Court will no longer publish notices about court applications in the newspaper.  All court notices will be published on a Magistrates Court website.