LICENSING / RECORDS |
Is the agency licence and triennial certificate displayed? |
SA Act s.42(1)(a) |
For branch office, is the name of manager and address of registered office of the licensee displayed? |
SA Act s.42(1)(b) |
For branch office, is the branch manager identified as a settlement agent and the branch address shown on all correspondence and documents? |
SA Act s.42(2)(b) |
Is the business name registration current? |
SA Act s.41 |
Do you have a current certificate of fidelity and professional indemnity insurance (PII) together with a current triennial certificate? |
SA Act s.35 |
Is the PII cover adequate taking into account the value of settlements undertaken? |
SA Act s.35(3) |
Does correspondence and documentation identify the licensee and the registered office and that you are a settlement or business settlement agent or both? |
SA Act s.42(2)(a) |
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COSTS DISCLOSURE |
Is a written costs disclosure provided to clients prior to appointment? |
SA Code of Conduct (Code) r.23 |
Does the service amount disclosed include general office disbursements? |
Code r.23(3) |
Are clients informed in writing of unforeseen significant change and did they agree to the change? |
Code r.24 |
Is the amount reasonable? |
Code r.24(2)(b) |
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E-CONVEYANCING |
Have you subscribed to Property Exchange Australia (PEXA)? |
SA Act Schedule 2 cl.1(2A) |
Have you considered appropriately who has ‘Subscriber Manager’ and ‘Signer’ rights? |
SA Act s.46(8)m
Schedule 2 cl.1, cl.2A
Code r.15, r.16 |
Do you have processes in place to that ensure that only authorised personnel have access? |
Code r.15, r.16 |
Has a ‘Client Authorisation Form’ been completed, signed and retained for each transaction? |
SA Act s.46(8), s.46(9)
Schedule 2 cl.1(2A) |
Has the settlement completion record been printed and retained for each transaction? |
SA Act Schedule 2 cl.1(2A)
Best Practice (BP) |
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TRUST ACCOUNTING |
Are trust accounts, cheques and bank statement(s) designated in accordance with the SA Regulations? |
SA Act s.49(1)
SA Regs r.6B(1), r.6B(2) |
Are interest bearing trust accounts (IBTAs) correctly designated? |
SA Act s.49A(1)
SA Regs r.6B(3) |
Are client’s written requests held on file? |
SA Act s.49A(2) |
Do trust account receipts comply with the Regulations? |
SA Act s.50(1), s.50(2)
SA Regs r.6E |
Is banking being done by the next business day and can this be verified? |
SA Act s.49(1), s.49(6)(b) |
Are trust account(s), including IBTAs, reconciled on a monthly basis (to the last day of the month)? |
SA Act s.49(6)(d)
BP |
Do you review and certify them within 10 working days? |
SA Act s.49(6)(d)
BP |
Are you proficient in performing bank reconciliations and able to understand the information available in the EOM trust accounting reports? |
Code r.5, r.7, r.32 |
Are there valid reasons for any amounts being held beyond settlement date? |
Code r.7, r.10, r.32, r.33 |
Do you have procedures to follow up on unpresented cheques and take appropriate action to deal with those monies? |
Code r.7, r.10, r.32, r.33 |
Do you have an adequate accounting system that is fit-for-purpose? |
Code r.7, r.10, r.32 |
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SETTLED FILES: Acting for the seller |
Do you have a valid appointment to act, Form 1? |
SA Act s.43(1), s.43(2)
SA Regs r.6AA
Code r.26 |
Are the appointments to act endorsed with agent’s acceptance (when signed) and a true copy provided to the client?
(You should not wait until file is unconditional to do this) |
SA Act s.43(2), s.47 |
Are you using a Form 2 for conflict of interest disclosures, where applicable? |
SA Act s.46(3) and s.47(3)
SA Code r.17, r.18, r.19, r.20 and r.22 |
Is all work completed in a timely and efficient manner e.g. when is first letter issued to client? |
Code r.7, r.10, r.29 |
Do you have adequate systems in place for the control and supervision of staff? |
Code r.15, r.16 |
Do you review files? |
Code r.15, r.16 |
Is Verification of Identity (VOI) completed? |
Code r.15, r.16, r.29 |
Are ASIC searches completed to ascertain appropriate signing parties for corporate entities; Power of Attorney obtained and retained on file, etc.? |
Code r.15, r.16, r.29 |
Is the agency’s VOI procedure documented for staff/new employees to refer to? |
Code r.15, r.16, r.29 |
Are searches obtained as soon as practicable after receiving instructions to act e.g. CT; ASIC; encumbrances; enquiries to government offices? |
Code r.7,r.10, r.29 |
If the foreign resident capital gains withholding ($750k and over) is applicable was a clearance certificate obtained from seller and provided to buyer’s settlement agent? |
Code r.7, r.11, r.29 |
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OFF THE PLAN SALES (randomly selected) |
Do you have valid appointments to act?
(Registered Proprietor as per Certificate of Title) |
SA Act s.43(1), s.43(2)(a)
Code r.29 |
Is the vendor/developer the proprietor? |
Sale of Land Act s.13 |
Is the deposit paid into a settlement agent, real estate agent or a solicitor’s trust account? |
Strata Titles Act s.70 |
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BUSINESS SETTLEMENTS |
Were necessary searches and inquiries made e.g. ASIC (company check and business name transfers), licences, permits, inspections etc.? |
SA Act s.47
Code r.29 |
Do you search the Personal Property Securities Register (www.ppsr.gov.au)? |
Code r.6, r.11 |
Were sellers disclosure statements and deed of restraint obtained/provided? |
Code r.6, r.11 |
Were lease reassignments obtained from lessor's agent, if relevant? |
Code r.6, r.11 |
Were stocktakes completed, if relevant, and any required adjustments agreed and made? |
Code r.6, r.11 |
Are post-settlement retentions addressed (paid out) within the time specified in the contract? |
Code r.7, r.10 |
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SETTLED FILES: Acting for the buyer |
Do you have a valid appointment to act? (Form 1) |
SA Act s.43(1), s.43(2)
Code r.23, r.26
SA Regs Schedule 1 Form 1 |
Are you using a Form 2 for conflict of interest disclosures where applicable? |
SA Act s.46(3), s.47(3)
Code r.17, r.18, r.19, r.20, r.22
SA Regs Schedule 1 Form 2 |
Do you undertake searches in a timely manner? |
Code r.10, r.11, r.29 |
Were initial/check searches undertaken prior to settlement? |
Code r.10, r.11, r.29 |
Was a post settlement search undertaken? |
Code r.10, r.11, r.29 |
If applicable was an Electronic Advice of Settlement (EAS) and s.43 strata certificate issued and on what date/s? |
Code r.10, r.11, r.29 |
Was a copy of the title; s.43 Certificate; sewer plan and Land Purchase Enquiry provided to the buyer? |
Code r.11, r.29 |
If a foreign resident capital gains withholding ($750k and over) Clearance Certificate was not provided by a seller, did you enter information into a Form 1 (Payment Notification) and provide the document to the buyer? |
Code r.11, r.29 |
Did you obtain documents to confirm the signing party for contracts related to sub-purchasers, trustees and superannuation funds? |
Code r.11, r.29 |
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SETTLED FILES: Acting for both parties |
Are you ensuring correct election by is being made by your client and that correct disclosure is being made? |
SA Act s.46(3)
Code r.17, r.18, r.19, r.20, r.22
SA Regs Schedule 1 |
Are the disclosures clearly shown on appointment to act (Form 1)? |
SA Act s.46(3)
Code r.20, r.22(1)
SA Regs Schedule 1 |
Are you obtaining a Disclosure Notice (Form 2) signed by the seller and the buyer? |
SA Act s.46(3)
Code r.17, r.18, r.19, r.20, r.22
SA Regs Schedule 1 Form 2 |
Have you identified any conflict of interest issues? |
Code r.18, r.19, r.22 |
Do you obtain written consent to continue to act or cease to act for both parties? |
Code r.18, r.19, r.20 |
Are both client’s interests protected? |
Code r.18, r.19 |
Are copies of searches made retained on file i.e. initial check / post settlement? |
Code r.29 |