Exclusive or Open Leasing Agency Agreement - AUNSWRECM008

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BLACK = Old Item/Clause  | RED = New Item/Clause | BLUE = Comments About Change (Not Part of Form) | STRIKEOUT = Wording Deleted

 

17 Dec 2018 v3.4

Additions / Changes:

 

Item 4

AGENT’S APPOINTMENT

a.

Exclusive Appointment:

Term of Exclusive Leasing Appointment : …………… days from the date of signing this Agreement.

b.

Non-Exclusive Appointment:

A Non-Exclusive Appointment will commence:


(i)

From the end of the term of Exclusive Leasing Appointment


(ii)

Where Item 4(a) is not completed, from the date of signing this Agreement

c.

A Non-Exclusive Appointment may be terminated by either party giving not less than ………………. days written notice.

 

Item 4

AGREEMENT

Select only one type below:

__

This Agreement is an Exclusive Leasing Agreement for the period commencing on …………………………….….. and concluding on ………………………………… and thereafter shall continue as a Non-Exclusive Leasing Agreement which can be terminated by either party on the giving of not less than …………..…… days notice in writing.


OR

__

This Agreement is a Non-Exclusive Leasing Agreement and is effective from …… / …… / …… and can be terminated thereafter by either party on the giving of not less than …………… days notice in writing.


In any of the above, such termination will be without prejudice to either parties existing rights, duties or obligations.

 

15 Oct 2018 v3.3

Additions / Changes:

 

Item 3.1

Address: ……………………………………………………………………………………………………………

            ……………………………………………………………………………………………………………

 

Item 4(a)

Exclusive Appointment:

Term of Exclusive Leasing Appointment : ………………. days from the date of signing this Agreement.

Note: If this sub Item 4(a) is not completed this will be a Non-Exclusive Appointment.

 

Clause 3.1

In consideration of and in accordance with the terms of this Agreement, the Owner appoints the Agent (and its permitted assigns) as Agent in consideration of, and in accordance with, Item 4 for the duration of this Agreement and the terms of this Agreement to lease the Premises for the Owner and the Agent agrees.

 

Clause 3.3

In carrying out the duties and services specified in this Agreement the Agent is authorised to utilise the services of any suitable person or company, provided however where required under the Act such duties or services must be carried out by a licensed person.

 

Clause 3.3

When delegating authority to authorised employees the Agent (licensee) in charge of the business, must properly supervise such person/s in accordance with the guidelines issued by the Commissioner for Fair Trading.

 

Clause 3.4

The Agent (licensee) in charge of the business must properly supervise, in accordance with the guidelines issued by the Commissioner for Fair Trading, all persons (employee or otherwise) engaged in the business carried on by the Agent.

 

Clause 6.5

The terms of this Agreement, including services and amounts listed in this Agreement, cannot be varied without agreement in writing signed by the parties.

 

Clause 12.2

This Agreement cannot be varied without agreement in writing signed by the parties.

 

Clause 16.1

The parties agree and confirm any documents and communications in relation to this Agreement may be forwarded electronically and where this Agreement document has been forwarded electronically (either for signing or otherwise) the party receiving the Agreement document confirms having consented to the delivery of the Agreement document (and any other materials) by way of the electronic means of delivery before receiving the documentation.

 

Clause 16.8

The parties agree and consent to execution, by any party, delivery and service of documents electronically using by a method provided by DocuSign or such other agreed an electronic signing signature service provider.

 

19 Feb 2018 v3.2

Additions / Changes:

 

Item 1

Name/s: ……………………………………………………………………………………………………

Business Name: …………………………………………………………………………….……………

Address: ……………………………………………………………………… ACN: ……………………

             ……………………………………………………………………… ABN: ……………………

Phone:   (…)……………………… Fax: (…)……………………… Mobile: ………………………….

Email:     …………………………………………………………….… GST Registered: __ Yes __ No

Solicitor/Conveyancer: …………………………………………………………………….……………

Business Address: ………………………………………………………………………………………

Service of Documents Address for Service: …………………………………………………………..

Phone:   (…)……………………… Fax: (…)…………………….. Mobile: ………………………….

Email: ……………………………………………………………………………………………………..

 

Item 2

Name:     …………………………………………………………………………………………………..

Address: ………………………………………………………………………… ACN: …………………

             ………………………………………………………………………… ABN: …………………

Phone:   (…)……………………… Fax: (…)……………………… Mobile: …………………………..

Email:    …………………………………………………………………………………………………….

Licence Number/s*: ………………………………………………… GST Registered: __ Yes __ No

 

Item 4

AGENT’S APPOINTMENT

a.

Exclusive Appointment:

Term of Exclusive Leasing Appointment : …………… days from the date of signing this Agreement.

b.

Non-Exclusive Appointment:

A Non-Exclusive Appointment will commence:


(i)

From the end of the term of Exclusive Leasing Appointment


(ii)

Where Item 4(a) is not completed, from the date of signing this Agreement

c.

A Non-Exclusive Appointment may be terminated by either party giving not less than ………………. days written notice.

 

Item 4

AGREEMENT

Select only one type below:

__

This Agreement is an Exclusive Leasing Agreement for the period commencing on …………………………….….. and concluding on ………………………………… and thereafter shall continue as a Non Exclusive Leasing Agreement which can be terminated by either party on the giving of not less than …………..…… days notice in writing.


OR

__

This Agreement is an Open Leasing Agreement and is effective from …… / …… / …… and can be terminated thereafter by either party on the giving of not less than …………… days notice in writing.


In any of the above, such termination will be without prejudice to either parties existing rights, duties or obligations.

 

Item 5

AGENT’S INSTRUCTIONS AND AUTHORITY

5.1

The Owner authorises the Agent to undertake the following services in relation to the Leasing of the Premises: [Tick authorised options - if an option is not ticked it is not authorised]


(1)

__

Obtain and verify references from prospective tenants.


(2)

__

Choose Tenants


(3)

__

Refer suitable prospective tenants to the Owner.


(4)

__

Procure the entering into and signing of agreements to lease and/or leases as instructed by the Owner.

Note: Documents for registration in the Land Titles Office must be signed by the Owner.


(5)

__

Participate in the exchange or making of leases and/or guarantees relating to leases, and/or confer with the Owner’s Solicitor in relation to those documents.


(6)

__

Undertake an initial inspection of the Premises.


(7)

__

Collect initial rent payment.


(8)

__

Receive security bond (monies) in accordance with the Lease.


(9)

__

Advertise the Premises for lease in accordance with Item 6.


(10)

__

Arrange inspections of the Premises by prospective tenants under the following circumstances:



 

(1)

Where the Premises are not tenanted, in accordance with the Owner’s instructions.



 

(2)

Where the Premises are tenanted, in accordance with the Owner’s instructions and subject to the Lease provisions.

5.2

Tenancy


(1)

Term of Tenancy: ……………………………………………………………………………


(2)

Proposed Rent: Amount per m²: ………………………………………….………………


(3)

Payment Details: ……………………………………………………………………….....

[Please specify how and when payment is to be made]


(4)

Security Bond: ……………………… Or equivalent to ………………… weeks/month/s rent.

5.3

Other authorisations/limitations:


 

 

 

Item 7

Fees payable to the Agent for Services: [Enter details of Fees]

7.1

Description of Service/Fee

Fee (GST Inclusive)

Due and Payable

Letting Fee (cl 1.1(8))

 

 

7.2

Additional Services Fees

Assignment or Subletting Fee (cl 1.1(2)(ai))

 

 

Fittings and Fixtures Fee (cl 1.1(2)(a))

 

 

Letting of Additional Space Fee (cl 1.1(2)(b))

 

 

Premium Fee (cl 1.1(2)(c))

 

 

Sales Commission Fee (cl 1.1(2)(d))

 

 

7.3

Explanation of Fees (Where the Agent has inserted non-standard fees explanatory details should be inserted).

 

 

 

Item 8

The Owner shall reimburse the Agent for the following authorised expenses incurred during the Leasing Letting of the Premises:

Description of Expense

Amount (GST Inclusive)

*Due and Payable

Lease Advertising

 

 

Office and Clerical Expenses

 

 

Travel and Out of Pocket Expenses

 

 

Bank Charges

 

 

*When Due and Payable is left blank, Charges and Expenses are payable on receipt by the Owner of an itemised invoice.

 

Item 10

Where this Agreement relates to the leasing of a Premises Property required under the Building Energy Efficiency Disclosure Act 2010 (BEEDA) to have a valid and current registered Building Energy Efficiency Certificate (BEEC) the Owner confirms it has such BEEC and agrees to provide the BEEC to the Agent for inclusion in any advertisement of the Premises Property or as otherwise required under the BEEDA.

 

Item 12

SPECIAL CONDITIONS

Special Conditions to this Agreement where inserted at the direction of the Owner were prepared by the Owner or an Australian Legal Practitioner instructed by the Owner and not by the Agent. No warranty is given by the Agent with respect to such clauses. Legal advice should be sought.

 

 

 

Item 13

Signature of Owner         Date:                   Signature of Owner         Date:

………………………………  …… / …… / ……  ………………………………  …… / …… / ……

By signing below the parties acknowledge and confirm having read and understood this Agreement.

Signature of Owner(s)     Date:                                                            Date:

 

………………………………  …… / …… / ……  ………………………………  …… / …… / ……

 

………………………………  …… / …… / ……  ………………………………  …… / …… / ……

 

Note: Where signed by Owner’s authorised representative or the Owner is a corporation evidence of authority to sign must be provided.

 

Signature of Agent           Date:

………………………………   …… / …… / ……

 

Clause 1.1(2)

Additional Services Fees: monies due paid to the Agent as provided in Item 7.2, for carrying out services in relation to which the following definitions apply:

(i)

Assignment or Subletting Fee: monies paid to the Agent as provided in Item (7.2), for the assignment or subletting of the Premises to another tenant within the term of the current Lease and expressed as a percentage of Annual Rent and Outgoings.


 

Clause 1.1(5)

Electronic Document: means any electronic communication (including Notices) as defined in the Electronic Transactions Act 2000 (NSW) including any electronically generated document situated on an external server readily accessible via a link within an electronic communication or other electronically generated document.

 

Clause 1.1(8)

Letting Fee: monies due payable to the Agent as provided in Item 7, on a Tenant entering into an initial lease, to the Agent as provided in Item (7.1) calculated as a percentage of Annual Rent and Outgoings.

 

Clause 1.1(9)

Material Fact: where used in this Agreement, has the same meaning as used in section 52 of the Act.

Note: Refer to ‘Misrepresentation Guidelines – NSW Fair Trading’ for more details on what may constitute a material fact.

 

Clause 1.1(10)

Outgoings: the total of any monies other than Annual Rent payable by the Tenant (including GST) to, for or on behalf of the Owner Landlord, in accordance with the provisions of the Lease or Agreement to Lease for the term thereof, excluding any refundable security deposit, divided by the term in years.

 

Clause 1.1(13)

Related Document: means any written communication (including Notices) with regard to this matter between the parties, including any Electronic Documents.

 

Clause 1.1(14)

Rent: means the amount specified as Proposed Rent in Item 5.2 of the Item Schedule or as may be amended from time to time in accordance with the Owner’s written instructions.  

 

Clause 2

By signing this Agreement the Owner(s) warrants and confirms:

(1)

it is the owner of the Premises

(1)

having read this Agreement;

(2)

it has having authority to enter into this Agreement; and

(3)

having authority to grant the Agent letting rights of the Premises during the term of this Agreement specified in Item (4).


 

Clause 3

3.1

For the duration of this Agreement The Owner appoints the Agent (and its permitted assigns) as Letting Agent in consideration of, and in accordance with, Item 4 and the terms of this Agreement and the Agent agrees.

3.2

If this Agreement is an Exclusive Leasing Agreement as indicated in Item (4), for the duration of this Agreement the Owner:


(a)

appoints the Agent as Exclusive Letting Agent; and


(b)

will refer any prospective tenants of which the Owner becomes aware to the Agent.

3.2

Authority vested in the Agent by this Agreement shall be deemed to be vested in the Agent’s authorised employees.

3.3

When delegating authority to authorised employees the Agent (licensee) in charge of the business, must properly supervise such person/s in accordance with the guidelines issued by the Commissioner for Fair Trading.

3.4

Where the Agent is appointed as Exclusive Agent (Item 4) the Owner will refer any prospective tenants, of which the Owner becomes aware, to the Agent.

 

Clause 4.5

(1)

Where the Agent is authorised to choose a Tenant (Item 5.1(2)) the Agent will choose the successful Tenant based on criteria provided by the Owner, otherwise;

(2)

Where Item 5.1(3) applies the Agent will introduce to the Owner suitable prospective tenants based on agreed criteria so as to enable the Owner to make an informed decision as to the acceptability of the prospective tenants.

(3)

The Owner confirms it does not rely on the Agent to establish beyond the extent of the criteria, the suitability (including financial or credit suitability) of the Tenant.


 

Clause 4.5

The Agent is responsible for locating and introducing to the Owner suitable prospective tenants based on agreed established criteria for this type of selection so as to enable the Owner to make an informed decision as to the acceptability of the prospective Tenants. Provided however, the Owner confirms it does not rely on the Agent to establish beyond the extent of the criteria, the credit worthiness of the Tenant.

 

Clause 4.6

The Agent will, subject to the Owner’s written instructions or as authorised by this Agreement, negotiate on behalf of the Owner any Lease Agreement or amendments or variations thereto, including ancillary documentation, and;

(1)

where the Agent is authorised to enter into and sign the Lease documentation, execute such documentation on behalf of the Owner, otherwise;

(2)

provide the Lease documentation, duly signed by the Tenant/s, to the Owner for execution.


 

Clause 4.6

The Agent will, subject to the Owner’s written instruction or as authorised by this Agreement, negotiate, finalise and where necessary execute on behalf of the Owner any lease documentation or variations thereto or guarantees, including any other documents in relation to the lease authorised by this Agreement.

 

Clause 4.8

The Agent is authorised to deduct from monies received by the Agent on behalf of the Owner all Fees and other authorised outlays owing to or incurred by the Agent in association with this Agreement, including those Fees, Charges and payments authorised in Items 7 and 8 respectively.

 

Clause 5.2

The Owner will at all times during the currency of this Agreement keep the Agent advised of and disclose to the Agent in writing details of all relevant and Material Facts and changes thereto in relation to the Premises.

 

Clause 5.3

There is a positive obligation on the Owner to disclose relevant and Material Facts. Any failure to disclose information known to the Owner which may detract from the leasing letting of the Premises will be a breach of this Agreement.

 

Clause 5.5

In addition to complying with the terms of this Agreement, the Owner must, with respect to the Premises, comply with the requirements of all relevant acts, legislation, by-laws, rules and regulations, local, state and federal.

 

Clause 6

Agent’s Fees and Reimbursement Remuneration

6.1

Where Fees, Charges and Expenses are provided for in Items 7 and 8, or otherwise authorised in writing by the Owner, for the performance of services (more particularly outlined in Item 5), the Agent shall be entitled to:


(1)

a Letting Fee where:



(a)

this Agreement is an Exclusive Agreement (Item 4), and the Premises is leased during the term of this Agreement, irrespective of whether the Tenant is introduced by the Agent, the Owner, or any other person; or



(b)

this Agreement is a Non-Exclusive Agreement (Item 4), and the Premises is leased during the term of this Agreement and the Tenant is introduced by the Agent; or



(c)

the Agent introduces a prospective tenant during the term of this Agreement and a subsequent tenancy agreement is entered into with the prospective tenant within 60 days after the expiry or termination of this Agreement; and


(2)

other Fees, Charges and Expenses for services authorised and performed during the term of this Agreement.

6.1

The Agent shall be entitled to Fees for services and remuneration for Charges and Expenses (including any taxes or deductions debited by financial institutions against the Agent’s account and attributable to the affairs of the Owner) in the amounts set out in Items (7) and (8) respectively, for the execution of services referred to in Item (5) of this Agreement.

6.2

The Agent will be entitled to the Letting Fee if:


(1)

the Premises are leased at any time during the exclusive agency period of this Agreement whether by the Agent, the Owner, or any other party; or


(2)

the Premises is leased to a tenant who was introduced by the Agent prior to the termination of this Agreement; or


(3)

the Agent is the effective cause of the Premises being leased for the first time by a tenant

6.3

Unless otherwise specified in Item (7), a letting fee detailed therein will be payable when a tenant enters into possession of the Premises or begins to pay rent. The Agent will be entitled to the fee if a lease is entered into and not completed due to the default of the Owner.

6.4

The Owner acknowledges and confirms in accordance with Clause 6.1, 6.2 and 6.3 that the Premises may not be leased without the Owner paying the Agent a letting fee (Item 7).

6.2

(1)

Unless otherwise specified in Item 7.2 the Agent will only be entitled to a Letting of Additional Space Fee will be payable by the Owner if within 18 months of entering the initial Lease, the Tenant enters into a lease, takes possession, or begins to pay rent in respect of additional space within the Property in which the leased Premises is situated.


(2)

The Agent will be entitled to a Sales Commission Fee provided for in Clause 4.7 will be paid by the Owner upon completion of a sale of the Premises where the prospective tenant enters into a contract of sales for the premises instead of entering into a lease agreement or within 60 days of entering into a lease agreement.

6.3

In addition to all Fees, Charges and Expenses to which the Agent is entitled in accordance with Clause 6.1, the Agent will be entitled to be reimbursed by the Owner for any taxes or deductions debited by financial institutions against the Agent’s account and attributable to the affairs of the Owner.

6.4

All fees, Unless otherwise specified in Items 7 and 8, all monies to which the Agent is entitled will be payable upon provision by the Agent to the Owner of a tax invoice or statement of account.

6.5

The terms of this Agreement, including services and amounts listed detailed in this Agreement, cannot be varied without agreement in writing signed by the parties.

6.6

Unless otherwise expressly stated, all monies payable or other considerations for Goods and Services to be provided under or in accordance with this Agreement are inclusive of GST.

6.7

In accordance with Section 55 of the Act, there will be no entitlement to commission (including fees) or expenses for services performed unless a copy of this Agreement is served on the Owner not more than 48 hours after being signed by the Owner.

 

Clause 7.1(1)

authorised Lease letting advertising or signage; or

 

Clause 7.1(8)

any loss arising from injury to person or damage to property howsoever caused (except in the case of negligence on the part of the Agent); or

 

Clause 7.2

The Owner acknowledges that the Agent is acting as a Leasing Letting Agent and is not responsible for reporting any matters (including defects, latent or otherwise) other than those that are readily apparent during the course of any inspections or as are brought to their attention as Leasing Letting Agent by the tenant. The Agent is not otherwise qualified and it is the Owner’s responsibility to obtain specific advice with respect to the Premises and its soundness as to building and structural integrity, pest, health and other requirements. As such, the Owner indemnifies the Agent from and against all actions, claims, demands, losses, costs, damages and expenses arising out of, or in respect of this Agreement, resulting from matters of cleanliness, safety, construction, building requirements or building deterioration, notwithstanding the Agent’s Obligations under Clause 4.

 

Clause 8

In case of disputes and/or complaints either party may serve on the other a notice containing full details of the dispute and/or complaint in which case both parties will use their best endeavours to settle the dispute without recourse to litigation and may refer such dispute to mediation or arbitration by the Retail Tenancy Unit or any other relevant professional or government body or authority.  The provisions of this Clause do not limit either party’s rights to seek independent legal advice and have recourse to other legal remedies.

 

Clause 9.2

Either party may, where the other is in breach of this Agreement, give written notice to the other specifying the breach complained of and requiring the party against whom the breach is alleged to rectify such breach within 14 21 days of service of the notice failing which:

 

Clause 9.4

Upon termination of this Agreement all monies owing under this Agreement must be paid or reimbursed up to and including the end date of this Agreement last day of the relevant notice period on a pro rata basis if necessary

 

Clause 15

Provision of Documents

The parties agree and confirm this Agreement may be forwarded electronically if the recipient has provided an email address or facsimile number in the Item Schedule to this Agreement.

 

Clause 15.3(1)

Tenant and potential tenants, insofar as such information is relevant to the leasing of the Premises; and/or

 

Clause 16

Related Documents / Notices / Electronic Communication

16.1

The parties agree and confirm any documents and communications in relation to this Agreement may be forwarded electronically and where this document has been forwarded electronically (either for signing or otherwise) the party receiving the document confirms having consented to the delivery of the document (and any other materials) by way of the electronic means of delivery before receiving the documentation.

16.2

A Related Document to be served on any party under this Agreement shall be in writing and may be served on that party:


(1)

by delivering it to the party personally; or


(2)

by leaving it for the party at that party’s address as stated in this Agreement; or


(3)

by posting it to the party by ordinary mail or security mail as a letter addressed to the party at the address as stated in this Agreement; or


(4)

by email to the party at the appropriate email address as stated in this Agreement; or


(5)

by delivery to an alternative address, provided in writing by the party, by any of the methods outlined in Clauses 16.2(1) to (4) above.

16.3

A document posted shall be deemed to have been served, unless the contrary is shown, at the time when, by the ordinary course of post, the document would be delivered.

16.4

A document sent by electronic communication will be deemed to have been received in accordance with Section 13A of the Electronic Transactions Act 2000 (NSW).

16.5

Documents given by a party's solicitor will be deemed to have been given by and with the authority of the party.

16.6

Documents must be served before 5pm on a business day, failing which, such document will be deemed to have been served on the next business day.

16.7

The parties acknowledge and agree an Electronic Document readily accessible via a link within a Related Document is received when the Related Document is served and will be opened when the Related Document is opened.

16.8

The parties agree to execution, delivery and service of documents electronically by a method provided by DocuSign or such other agreed electronic signature service provider.

 

31 Jan 2017 v3.1

Additions / Changes:

 

Clause 1.1

In this Agreement (which includes the Item Schedule) the following terms mean:

(1)

Act: the Property, Stock and Business Agents Act 2002 and Regulations thereto as amended from time to time.

(2)

Additional Services Fees: monies paid to the Agent as provided in Item (7.2), for carrying out services in relation to which the following definitions apply:

(i)

Assignment or Subletting Fee: monies paid to the Agent as provided in Item (7.2), for the assignment or subletting of the Premises to another tenant within the term of the current Lease and expressed as a percentage of Annual Rent and Outgoings.

(ii)

Fittings and Fixtures Fee: monies paid to the Agent as provided in Item (7.2), where the tenant under the Lease, acquires fittings and fixtures for a lump sum consideration.

(iii)

Letting of Additional Space Fee: monies paid to the Agent as provided in Item (7.2), if the tenant leases additional space within the Property in which the leased Premises are situated.

(iv)

Premium Fee: monies paid to the Agent as provided in Item (7.2), where the Lease is granted in consideration of a lump sum or premium, payable by the tenant.

(v)

Sales Commission Fee: monies paid to the Agent as provided in Item (7.2), where the Agent acts in accordance with Clause 4.7.

(3)

Agreement: this Agency Agreement, consisting of:

(i)

the Item Schedule – Leasing Agency Agreement; and

(ii)

the Terms of Agreement; and

(iii)

any additional annexures, schedules or documents that may be attached.

(4)

Annual Rent: The total of all rent (including GST) payable for the term of the Lease or Agreement to Lease divided by the term in years, exclusive of any

(i)

pecuniary incentives to enter into the Lease or Agreement to Lease granted to the Tenant by the Landlord.

(ii)

rent free periods.

(5)

GST:  where used in this Agreement, has the meaning used in A New Tax System (Goods and Services Tax) Act 1999 and “GST” includes any applicable rulings issued by the Commissioner of Taxation.

(6)

Item: an Item in the attached Item Schedule forming part of this Agreement.

(7)

Letting Fee: monies payable, on a tenant entering into an initial lease, to the Agent as provided in Item (7.1) calculated as a percentage of Annual Rent and Outgoings.

(8)

Material Fact: where used in this Agreement, has the same meaning as used in section 52 of the Act.

(9)

Outgoings: the total of any monies other than Annual Rent payable by the Tenant (including GST) to, for or on behalf of the Landlord, in accordance with the provisions of the Lease or Agreement to Lease for the term thereof, excluding any refundable security deposit, divided by the term in years.

 

(10)

Premises: the leased Premises as described in Item (3).

(11)

Property: the buildings and land of which the Premises (as described in Item 3) forms a part.

 

Clause 4.3

The Agent will be responsible for ensuring all persons engaged by the Agent to perform functions in respect of this Agreement hold, where required, appropriate licenses and comply with relevant legislation and regulations.

 

Clause 5.10

Where a product, fixture or fitting provided with the Premises has a warning label or safety instructions attached the Owner is not to deface, damage or remove such label.

 

Clause 6.9

In accordance with Section 55 of the Act, there will be no entitlement to commission or expenses for services performed unless a copy of this Agreement is served on the Owner not more than 48 hours after being signed by the Owner.

 

Clause 7.1

The Agent having complied with its obligations under this Agreement and not having been negligent, the Owner indemnifies the Agent, its officers and employees, from and against all actions, claims, demands, losses, costs, damages and expenses arising out of this Agreement in respect of:

(a)

authorised letting advertising or signage; or

(b)

the Owner’s failure to comply with this Agreement; or

(c)

the Owner’s failure to give the Agent prompt and appropriate authority or instruction to carry out an instruction or authority; or

(d)

the tenant’s failure to comply with his/her obligations according to the Lease at no fault of the Agent; or

(e)

the tenant’s failure to comply with their obligations under relevant acts and legislation with respect to the Lease; or

(f)

the Agent acting in the capacity of the Owner under this Agreement; or

(g)

any claim for compensation in respect of damage or loss to the tenant’s goods.; or

(h)

a warning label or safety instructions having been removed, damaged or defaced where a product or fitting has been supplied to the Premises with such a label or instruction attached.

 

11 Jun 2015 v3.0

Copyright statement updated.

 

03 Sep 2014 v2.9

Additions / Changes:

 

The word 'Principal' has been changed to 'Owner' throughout the Agreement due to the release of the Property, Stock and Business Agents Regulations 2014.

 

12 Mar 2014 v2.8

Additions / Changes:

 

Clause 16

Privacy Statement

16.1

The Agent collects and uses personal information provided by you as the Principal to provide the services required by you or on your behalf.

The Agent must comply with the provisions of the Australian Privacy Principles (Privacy Act 1988) and where required maintain a Privacy Policy.

16.2

The Privacy Policy outlines how the Agent collects and uses personal information provided by you as the Principal, or obtained by other means, to provide the services required by you or on your behalf.

16.3

You as the Principal agree the Agent may, subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such information to:

(1)

potential tenants, insofar as such information is relevant to the leasing of the Premises; and/or

(2)

property data collection agencies; and/or

(3)

Owner’s Corporations & financial institutions; and/or

(4)

tradespeople and similar contractors in order to facilitate the carrying out of works with respect to the Property Premises; &/or

(5)

other third parties as may be required by the Agent for the purposes of marketing, sales promotion and administration relating to the use of the Agent’s products and services and complying with legislative and regulatory requirements.

16.4

Without provision of certain information the Agent may not be able to act effectively or at all on the Principal’s behalf.

16.5

The Principal has the right to access such personal information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.

16.6

The Agent will provide (where applicable), on request, a copy of its Privacy Policy.

 

21 Oct 2013 v2.7

Additions / Changes:

 

Form Title

Leasing Agency Agreement

(Commercial, & Industrial & Retail)

 

Item 4

Select only one type below:

__  This Agreement is an Exclusive Leasing Agreement for the period commencing on ……………………... and concluding on ……………………… and thereafter shall continue as a Non Exclusive Leasing Agreement which can be terminated in writing by either party on the giving of not less than …………..…… days notice in writing.

OR

__  This Agreement is an Open Leasing Agreement and is effective from ……/……/…… and can be terminated thereafter in writing by either party on the giving of not less than ……...……………. days notice in writing.

 

In any of the above, such termination will be without prejudice to either parties existing rights, duties or obligations. This Agreement is terminated at such time when the Premises are leased.

 

Item 5.1

The Principal authorises the Agent to undertake the following services duties in relation to the Leasing of the Premises: [Tick authorised options]

(1)

Obtain and verify references from prospective tenants.

(2)

Refer any suitable prospective tenants to the Principal.

(3)

Procure the entering into and signing of agreements to lease and/or leases as instructed by the Principal.

Note: Documents for registration in the Land Titles Office must be signed by the Principal

(4)

Participate in the exchange or making of leases and/or guarantees relating to leases, and/or confer with the Principal’s Solicitor in relation to those documents.

(5)

Undertake an initial inspection of the Premises

(6)

Collect initial rent payment.

(7)

Receive security bond (monies) in accordance with the Lease.

(8)

Advertise the Premises for lease in accordance with Item (6).

(9)

Arrange inspections of the Premises by prospective tenants under the following circumstances:

(i)

Where the Premises are not tenanted, in accordance with the Principal’s instructions.

(ii)

Where the Premises are tenanted, in accordance with the Principal’s instructions and subject to the Lease provisions.

 

Item 7

Fees payable to the Agent for Services: [Enter details of Fees]

7.1

Description of Service/Fee

Fee (GST Inclusive)

Due and Payable

Letting Fee (cl 1.1(6))

(as a % of Annual Rent)

 

 

7.2

Additional Services Fees

Assignment and or Subletting Fee (cl 1.1(2)(i))

(as a % of Annual Rent)

 

 

Fittings & Fixtures Fee (cl 1.1(2)(ii))

 

 

Letting of Additional Space Fee (cl 1.1(2)(iii))

 

 

Premium Fee (cl 1.1(2)(iv))

 

 

Sales Commission Fee (cl 1.1(2)(v))

 

 

7.3

Explanation of Fees (Where the Agent has inserted non-standard fees explanatory details should be inserted)

 

 

 

Item 14.

RECEIPT OF COPY OF AGREEMENT  (See Section 55(1)(c) of the Act)

A signed copy of this Agreement must be served, by the Agent, on the Principal within 48 hours after signing by the Principal.  If a copy was given at the time of signing, the Principal(s) confirm having received such copy by initialing.                       Principal(s) initials: ………………………………

 

Terms & Conditions Heading

Terms of Agreement (in conjunction with the Leasing Agency Agreement) (Commercial, & Industrial & Retail)

 

Clause 1.1

In this Agreement (which includes the Item Schedule) the following terms mean:

(1)

Act: the Property, Stock and Business Agents Act 2002 and Regulations thereto the Property, Stock and Business Agents Regulations 2003 as amended from time to time.

(2)

Additional Services Fees: monies paid to the Agent as provided in Item (7.2), for carrying out services in relation to which the following definitions apply:

(i)

Assignment or Subletting Fee: monies paid to the Agent as provided in Item (7.2), for the assignment or subletting of the Premises to another tenant within the term of the current Lease and expressed as a percentage of Annual Rent and Outgoings.

(ii)

Fittings and Fixtures Fee: monies paid to the Agent as provided in Item (7.2), where the tenant under the Lease, acquires fittings and fixtures for a lump sum consideration.

(iii)

Letting of Additional Space Fee: monies paid to the Agent as provided in Item (7.2), if the tenant leases additional space within the Property in which the leased Premises are situated.

(iv)

Premium Fee: monies paid to the Agent as provided in Item (7.2), where the Lease is granted in consideration of a lump sum or premium, payable by the tenant.

(v)

Sales Commission Fee: monies paid to the Agent as provided in Item (7.2), where the Agent acts in accordance with Clause 4.6.

(3)

Annual Rent: The total of all rent (including GST) payable for the term of the Lease or Agreement to Lease divided by the term in years, exclusive of any

(i)

pecuniary incentives to enter into the Lease or Agreement to Lease granted to the Tenant by the Landlord.

(ii)

rent free periods.

(2)

Assignment or Subletting Fee: monies paid to the Agent as detailed in Item (7), for the assignment or subletting of the Premises to another tenant within the term of any current Lease.

(3)

Fittings and Fixtures Fee: monies paid to the Agent as provided in Item (7), where the tenant under the Lease, acquires fittings and fixtures for a lump sum consideration.

(4)

GST:  where used in this Agreement, has the meaning used in A New Tax System (Goods and Services Tax) Act 1999 and “GST” includes any applicable rulings issued by the Commissioner of Taxation.

(5)

Item: an Item in the Item Schedule forming part of this Agreement.

(6)

Letting Fee: monies payable, on a tenant entering into an initial lease, to the Agent as provided in Item (7.1) calculated as a percentage of Annual Rent and Outgoings.

(7)

Letting of Additional Space Fee: monies paid to the Agent as provided in Item (7) if the tenant leases additional space within the Property in which the leased Premises are situated.

(7)

Material Fact: A Material Fact has, where used in this Agreement, has the same meaning as given to it by used in section 52 of the Act.

(8)

Outgoings: the total of any monies other than Annual Rent payable by the Tenant (including GST) to, for or on behalf of the Landlord, in accordance with the provisions of the Lease or Agreement to Lease for the term thereof, excluding any refundable security deposit, divided by the term in years.

(9)

Premises: the leased Premises as described in Item (3).

(9)

Premium Fee: monies paid to the Agent as provided in Item (7), where the Lease is granted in consideration of a lump sum or premium payable by the tenant.

(10)

Property: the buildings and land of which the Premises (as described in Item 3) forms a part.  

(11)

Sales Commission Fee: monies payable to the Agent as provided in Item (7), where the Agent acts in accordance with Clause 4.6.

 

Clause 3

Exclusive Appointment of Agent

3.1

For the duration of this Agreement the Principal appoints the Agent and its permitted assigns as Letting Agent.

3.2

If this Agreement is an Exclusive Leasing Agreement as indicated in Item (4), for the duration of this Agreement the Principal:

(a)

appoints the Agent as Exclusive Letting Agent; and

(b)

will refer any prospective tenants of which the Principal becomes aware to the Agent.

3.1

If the Principal by this Agreement appoints the Agent as Exclusive Letting Agent in Item (4) for the duration of this Agreement the Principal will refer any prospective tenants of which the Principal becomes aware to the Agent.

3.2

Where appointed as Exclusive Letting Agent (Item 4), the Agent will be entitled to the Letting Fee (Item 7) if:

(1)

the Premises is leased at any time during the term of this Agreement whether by the Agent, the Principal, or any other party; or

(2)

the Premises is leased to a tenant introduced by the Agent prior to the termination of this Agreement.

3.3

The Principal appoints the Agent and its permitted assigns to lease the Premises for the Principal and the Agent agrees.

3.3

Authority vested in the Agent by this Agreement Appointment shall be deemed to be vested in the Agent’s authorised employees.

 

Clause 4.5

The Agent will, subject to the Principal’s written instruction or as authorised by this Agreement, negotiate, finalise and where necessary execute on behalf of the Principal any Lease documentation or amendments or variations thereto or guarantees, including any other documents in relation to the lease authorised by this Agreement.

 

Clause 4.7

The Agent may not participate in the exchange or making of leases or any guarantees in respect thereof, unless expressly authorised to do so by the Principal or this Agreement.

 

Clause 4.11

Where Fees, Charges & Expenses exceed at any time the amount being held by the Agent in accordance with this Agreement, the Agent is not required to make payment in respect of any shortfall and will advise the Principal and may require payment from the Principal

 

Clause 5

5.1

The Principal confirms having at the time of entering into this Agreement, disclosed correct details to the Agent all relevant and material facts relating to the Premises.

5.2

The Principal will at all times during the currency of this Agreement keep the Agent advised of and disclose to the Agent in writing all relevant and material facts and changes thereto about in relation to the Premises.

5.3

There is a positive obligation on the Principal to disclose relevant and material facts.  Any failure to disclose information known to the Principal which may detract from the letting of the Premises will be a breach of this Agreement.

5.4

The Principal acknowledges that, once a Lease has been entered into by the Principal and the tenant, it shall not be the responsibility of the Agent to enforce such Lease and the Agent is limited to its obligations under this Agreement.

5.5

In addition to complying with the terms of this Agreement, the Principal must meet comply with the requirements of all relevant acts, legislation, by-laws, rules and regulations, local, state and federal.

5.6

Should the Agent refer a suitable prospective tenant to the Principal and the Principal rejects such tenant, the Principal takes sole responsibility for any action that may follow as a result of that decision.

5.7

The Principal must retain a signed copy of this Agreement.

5.8

Where the Principal has complied with the Work Health and Safety Regulation 2011 (WHS Regulation) in accordance with Clause 10.2 of this Agreement, the Principal must provide copies of documentation referred therein to the Agent prior to entering into this Agency Agreement.

5.9

The Principal is responsible for payment of all Fees, Charges and expenses. Clause 4.7 does not release the Principal from such obligations. If such monies received by the Agent in accordance with Clause 4.7 are insufficient to cover the amounts due to the Agent then the Principal must pay any outstanding Fees, Charges or Expenses to the Agent upon the receipt of a tax invoice.

 

Clause 6

6.1

The Agent shall be entitled to Fees for services and remuneration for Charges and Expenses (including any taxes or deductions debited by financial institutions against the Agent’s account and attributable to the affairs of the Principal) in the amounts set out in Items (7) and (8) respectively, for the execution of services referred to in Item (5) of this Agreement.

6.2

The Agent shall be entitled to Letting Fees (Item 7) during the term of this Agreement (Item 4) if the Agent is the effective cause of the Premises being leased.

6.2

The Agent will be entitled to the Letting Fee if:

(1)

the Premises are leased at any time during the exclusive agency period of this Agreement whether by the Agent, the Principal, or any other party; or

(2)

the Premises is leased to a tenant who was introduced by the Agent prior to the termination of this Agreement; or

(3)

the Agent is the effective cause of the Premises being leased for the first time by a tenant.

6.3

Unless otherwise specified in Item (7), the a letting fee detailed therein will be payable when a tenant enters into possession of the Premises or begins to pay rent. The Agent will be entitled to the fee if a lease is entered into and not completed due to the default of the Principal.

6.4

The Principal acknowledges and confirms in accordance with Clause 6.1, 6.2 and 6.3 that the provision of Clauses 6.2 and 6.3 and understands the Premises may not be leased without the Principal paying the Agent a letting fee (Item 7).

6.5

Letting Fees shall be calculated as a percentage of the Aannual Rrent (not including GST) and Outgoings (including GST) under the Lease. Such percentage more particularly set out in Item (7).

6.6

In addition to the Letting Fees the Agent shall be entitled to Fees as specified in Item (7).

6.5

(1)

Unless otherwise specified in Item (7) the  Letting of Additional Space Fee will be payable by the Principal if within 18 months of entering the initial Lease, the tenant enters into a lease, takes possession, or begins to pay rent in respect of additional space within the Property in which the leased Premises is situated.

(2)

The Sales Commission Fee provided for in Clause 4.6 will be payable paid by the Principal upon completion of a sale of the Premises.

6.6

All fees, unless otherwise specified in Item (7), will be payable upon provision by the Agent of a tax invoice or statement of account.

6.7

The Terms of this Agreement, including services and amounts detailed in this Agreement, cannot be varied without agreement in writing signed by the parties.

6.8

Unless otherwise expressly stated, all monies payable or other considerations for Goods and Services to be provided under or in accordance with this Agreement are inclusive of GST.

6.9

In accordance with Section 55 of the Act, there will be no entitlement to commission for services performed unless a copy of this Agreement is served on the Principal not more than 48 hours after being signed by the Principal.

 

Clause 7

7.1

The Agent having complied with its obligations under this Agreement and not having been negligent, the Principal indemnifies the Agent, its officers and employees,  from and against all actions, claims, demands, losses, costs, damages and expenses arising out of this Agreement in respect of:

(a)

authorised letting advertising or signage; or

(b)

the Principal’s failure to comply with this Agreement; or

(c)

the Principal’s failure to give the Agent prompt and appropriate authority or instruction to carry out an instruction or authority; or

(d)

the tenant’s failure to comply with his/her obligations according to the Lease at no fault of the Agent; or

(e)

the tenant’s failure to comply with their obligations under relevant acts and legislation with respect to the Lease; or

(f)

the Agent acting in the capacity of the Principal under this Agreement; or

(g)

any claim for compensation in respect of damage or loss to the tenant’s goods.

7.2

The Principal acknowledges that the Agent is acting as a Letting Agent and is not responsible for reporting any matters (including defects, latent or otherwise) other than those that are readily apparent during the course of any inspections or as are brought to their attention as Letting Agent by the tenant. The Agent is not otherwise qualified and it is the Principal’s responsibility to obtain specific advice with respect to the Premises and its soundness as to building and structural integrity, pest, health and other requirements. As such, the Principal indemnifies the Agent from and against all actions, claims, demands, losses, costs, damages and expenses arising out of, or in respect of this Agreement, resulting from matters of cleanliness, safety, construction, building requirements or building deterioration, notwithstanding the Agent’s Obligations under Clause 4.

 

Clause 8

Disputes may be referred to the Retail Tenancy Unit for determination.

In case of disputes and/or complaints either party may serve on the other a notice containing full details of the dispute and/or complaint in which case both parties will use their best endeavors to settle the dispute without recourse to litigation and may refer such dispute to mediation or arbitration by the Retail Tenancy Unit or any other relevant professional or government body or authority.  The provisions of this Clause do not limit either party’s rights to seek independent legal advice and have recourse to other legal remedies.

 

Clause 9

Termination

9.1

Either party may terminate this Agreement in accordance with Item (4).

9.2

Either party may, where the other is in breach of this Agreement, give written notice to the other specifying the breach complained of and requiring the party against whom the breach is alleged to rectify such breach within 21 days of service of the notice failing which:

(a)

this Agreement may be terminated by the party alleging the breach giving 7 days written notice of termination; or

(b)

where there is a dispute regarding the breach either party may refer the matter to mediation or arbitration in accordance with Clause 8.

9.3

Any termination shall be without prejudice to either party's rights under this Agreement.

9.4

Upon termination of this Agreement all monies owing under this Agreement must be paid or reimbursed up to and including the end date of this Agreement on a pro rata basis if necessary

 

Clause 10.1

Where the Premises being leased or offered for lease is a workplace as defined under the Work Health and Safety Act 2011, insofar as either party to this Agreement is, with respect to such Premises a - Person Conducting a Business or Undertaking (PCBU) (under the Work Health and Safety Act 2011, Regulations and relevant Codes of Practice in relation thereto) such party must comply with the Act, Regulations or relevant Codes of Practice.  Provided however, in carrying out such obligations the Agent acts only as Agent for the Principal.

 

Clause 16.2

You as the Principal agree the Agent may subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such personal information to:

(1)

potential tenants insofar as such information is relevant to the leasing of the Premises; and/or

(2)

property data collection agencies; and/or

(3)

Owner’s Corporations & financial institutions; and/or

(4)

tradespeople and similar contractors in order to facilitate the carrying out of works with respect to the Property; &/or

(5)

other third parties as may be required by the Agent for the purposes of marketing, sales promotion and administration relating to the use of the Agent’s products and services and  complying with legislative and regulatory requirements.

 

11 Sep 2012 v2.6

Additions / Changes:

 

Clause 5.8

Where the Principal has complied with the Work Health and Safety Regulation 2011 (WHS Regulation) in accordance with Clause 9.2 of this Agreement, the Principal must provide copies of documentation referred therein to the Agent prior to entering into this Agency Agreement.

 

Clause 9

9.1

Where the Premises Property being offered for lease is a workplace as defined under the Work Health and Safety Act 2011, Regulation insofar as either party to this Agreement is, with respect to such Premises Property a - Person Conducting a Business or Undertaking (PCBU) (under the Work Health and Safety Act 2011, Regulations or relevant Codes of Practice in relation thereto) such party must comply with the Act, Regulations and relevant Codes of Practice.  Provided however, in carrying out any such obligations the Agent acts only as Agent for the Principal.

Note: A PCBU is required to comply with the code of practice for management and control of asbestos in the workplace.

9.2

A PCBU with management or control of a workplace must ensure:

(1)

so far as is reasonably practicable, that all asbestos or asbestos containing material at the workplace is identified by a competent person or otherwise its presence is assumed.

(2)

where applicable to the workplace, an asbestos register is prepared, maintained, reviewed and kept at the workplace in accordance with Section 425 of the WHS Regulation.

(3)

where asbestos has been identified at the workplace, an asbestos management plan is prepared, maintained and reviewed in accordance with Section 429 of the WHS Regulation.

(4)

compliance with the relevant provisions of the WHS Regulation and relevant Code of Practice relating to management and control of asbestos in the workplace.

9.3

The Principal authorises and directs the Agent to take steps appropriate to ensure compliance with Clause 9.2, at the Principal’s expense, where:

(a)

the Principal has failed to provide copies of  documents in accordance with Clause 5.8 to the Agent within a reasonable time; or

(b)

the Principal has not, where required by the WHS Regulation, complied with the provisions of Clause 9.2.

9.2

It is the Principal’s responsibility to comply, so far as reasonably practicable, with its obligations under Section 21 of the Work Health and Safety Act 2011 with respect to ensuring any fixtures, fittings and plant, to which such Act applies, are without risk to the health and safety of any person.

 

Clause 15.2(2)

property data collection agencies; and/or

 

02 Jul 2012 v2.5

Additions / Changes:


Item 11

The Owner is required to comply with the Code of Practice for Management and Control of Asbestos for the Premises:

__ No - Section 425(6) of the Work Health & Safety Regulation 2011 applies

__ Yes - Is there a current Asbestos Register and Management Plan for the Premises: _Yes _No

Note: Section 428 of the Work Health & Safety Regulation 2011 requires that a copy of the Asbestos Register be given to the person assuming management or control of the workplace.


Clause 7.1

The Agent having complied with its obligations under this Agreement, the Principal indemnifies the Agent, its officers and employees,  from and against all actions, claims, demands, losses, costs, damages and expenses arising out of this Agreement in respect of:


Clause 7.1(f)

the Agent acting in the capacity of the Principal under this Agreement; or


Clause 7.1(g)

any claim for compensation in respect of damage or loss to the tenant’s goods.


Clause 9.1

Where the Property being offered for lease is a workplace under the Work Health and Safety Regulation 2011and the Lessor is the person with management or control of the Property, the Lessor confirms, unless otherwise disclosed in the Item Schedule hereto, that the Lessor, to the extent required, has complied with the requirements of the current Code of Practice for the Management and Control of Asbestos in the Workplace. insofar as either party to this Agreement is, with respect to such Property a - Person Conducting a Business or Undertaking (PCBU) (under the Work Health and Safety Act 2011, Regulations and relevant Codes of Practice in relation thereto) such party must comply with the Act, Regulations or relevant Codes of Practice.  Provided however, in carrying out such obligations the Agent acts only as Agent for the Principal.

Note: A PCBU is required to comply with the code of practice for management and control of asbestos in the workplace.


Clause 9.2

Insofar as either party to this Agreement is, with respect to  the Property a - Person Conducting a Business or Undertaking (under the Work Health and Safety Act 2011, Regulations or relevant Codes of Practice in relation thereto) such party must comply with the Act, Regulations  or relevant Codes of Practice.  Provided however, in carrying out any such obligations the Agent acts only as Agent for the Principal.

 

01 Jan 2012 v2.4

Additions / Changes:


Item 11

The Owner is required to comply with the Code of Practice for Management and Control of Asbestos for the Premises:

_ - No - Section 425(6) of the Work Health & Safety Regulation 2011 applies

_ - Yes - Is there a current Asbestos Register and Management Plan for the Premises: _ Yes _ No

Note: Section 428 of the Work Health & Safety Regulation 2011 requires that a copy of the Asbestos Register be given to the person assuming management or control of the workplace.


Clause 7.1

The Agent having complied with its obligations under this Agreement, the Principal indemnifies the Agent from and against all actions, claims, demands, losses, costs, damages and expenses arising out of this Agreement in respect of:


Clause 9

Work Occupational Health and Safety

9.1

In any matters relating to the Premises the Agent is not the controller of the Premises but always acts as Agent for the Principal who is the Controller of the Premises for all purposes relating to the Occupational Health and Safety Act 2000 and Regulation 2001.

9.1

Where the Property being offered for sale is a workplace under the Work Health and Safety Regulation 2011, and the Owner is the person with management or control of the Property, the Owner confirms, unless otherwise disclosed in the Item Schedule hereto, that the Owner, to the extent required, has complied with the requirements of the current Code of Practice for the Management and Control of Asbestos in the Workplace.

9.2

Insofar as either party to this Agreement is, with respect to the Property a - Person Conducting a Business or Undertaking (under the Work Health and Safety Act 2011, Regulations or relevant Codes of Practice in relation thereto) such party must comply with the Act, Regulations or relevant Codes of Practice.  Provided however, in carrying out such obligations, the Agent acts only as Agent for the Principal.

9.2

The Principal acknowledges, as the Controller of the Premises it is the Principal’s responsibility, in accordance with the Occupational Health and Safety Regulation 2001 (the Regulation) to:

(1)

Identify hazards (Section 34 of the Regulation)

(2)

Assess risk arising from identified hazards (Section 35 of the Regulation)

(3)

Eliminate or control risks and ensure all control measures are maintained (Section 36 of the Regulation)

(4)

Review risk assessments and control measures as appropriate, but not less than annually and in any case, prior to any letting of the Premises (Section 37 of the Regulation)

(5)

Provide information to other persons specified by the Regulation. (Section 38 of the Regulation)

The Principal will maintain appropriate written records with regard to hazard identification, risk assessment, elimination and control.

9.3

It is the Principal’s responsibility to comply, so far as reasonably practicable, with its obligations under Section 21 of the Work Health and Safety Act 2011 with respect to ensuring any fixtures, fittings and plant, to which such Act applies, are without risk to the health and safety of any person.

 

01 Nov 2011 v2.3

Additions / Changes:


Item 10

BUILDING ENERGY EFFICIENCY DISCLOSURE                                                               Clause 1.1(11)

Where this Agreement relates to the leasing of a Property required under the Building Energy Efficiency Disclosure Act 2010 (BEEDA) to have a valid and current registered Building Energy Efficiency Certificate (BEEC) rating of the energy efficiency of the Property (Recognised Rating), the Principal (as Owner): confirms it has such BEEC and agrees to provide the BEEC to the Agent for inclusion in any advertisement of the Property or as otherwise required under the BEEDA

(a)

confirms it has a valid & current Recognised Rating; and

(b)

agrees and undetakes to provide details of the Recognised Rating to the Agent for inclusion in any advertisement of the Property or as otherwise required under the BEEDA.


Clause 1.1(11)

Recognised Rating: includes any of the following:

(a)

Building Energy Efficiency Certificate; or

(b)

National Australian Built Environment Rating System (NABERS Energy Star Rating); or

(c)

other recognised rating for the Property.

Note: The above Recognised Ratings can be used during the transition period of the BEEDA which concludes on the 1st November, 2011 after which time a Building Energy Efficiency Certificate will be required.

 

02 Aug 2011 v2.2

Additions / Changes:


Item 2

AGENT   *(Where the Agent trades as a corporation, include the corporation’s licence number)

Name: ...........................................................................................................................................

Address: …………………………………………………………………….....…  ACN: …………………………

……………………………………………………………………………………...  ABN: …………………………

Phone: ..(….)……………………….. Fax: ..(…..)…………………….…. Mobile: ……………………………..

Email: ………………………………………….…………………………………………..………………………...

Licence Number/s*: ….………………………………………………….....……….  GST Registered: Yes/No


Clause 4.4

The Agent is responsible for locating and introducing to the Principal suitable prospective tenants based on agreed established criteria for this type of selection so as to enable the Principal to make an informed decision as to the acceptability of the prospective tenants. Provided however, the Principal confirms it does not rely on the Agent to establish beyond the extent of the criteria, the credit worthiness of the Tenant.


Clause 5.4

The Principal does not rely on the Agent to determine the financial or credit suitability of any prospective tenant.


Clause 14

The parties agree and confirm this Agreement documents may be forwarded electronically if the recipient has provided an email address or facsimile number, for delivery or service of documents, in the Item Schedule to this Agreement.


Clause 15.2(5)

other third parties as may be required by the Agent for the purposes of marketing, sales promotion and administration relating to the use of the Agent’s products and services and complying with legislative and regulatory requirements.

 

09 May 2011 v2.1

Additions / Changes:

 

Item 5.3(3)

Security Bond:…………………………… or equivalent to …………………… weeks/month/s rent.

 

Clause 4.11

Should the Agent act in conjunction with other agents to effect a lease only one Letting Fee will be payable.

 

Clause 9

9.1

In any matters relating to the Premises the Agent is not the controller of the Premises but always acts as Agent for the Principal who is the Controller of the Premises for all purposes relating to the Occupational Health and Safety Act 2000 and Regulation 2001.

9.2

The Principal acknowledges, as the Controller of the Premises it is the Principal’s responsibility, in accordance with the Occupational Health and Safety Regulation 2001 (the Regulation) to:


(1)

Identify hazards (Section 34 of the Regulation)


(2)

Assess risk arising from identified hazards (Section 35 of the Regulation)


(3)

Eliminate or control risks and ensure all control measures are maintained (Section 36 of the Regulation)


(4)

Review risk assessments and control measures as appropriate, but not less than annually and in any case, prior to any letting of the Premises (Section 37 of the Regulation)


(5)

Provide information to other persons specified by the Regulation. (Section 38 of the Regulation)


The Principal will maintain appropriate written records with regard to hazard identification, risk assessment, elimination and control.

 

Clause 14

The parties agree and confirm documents may be forwarded electronically to a person if that person the recipient has provided an email address or facsimile number, for delivery or service of documents, in the Item Schedule to this Agreement.

 

Clause 15

15.1

The Agent collects and uses personal information provided by obtained from you as the Principal to provide the services required by you or on your behalf.

15.2

You as the Principal agree the Agent may subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such personal information to: in accordance with and subject to the Privacy Act 1988 (CTH) for (where applicable):


(1)

potential tenants; and/or


(2)

data collection agencies; and/or


(3)

Owner’s Corporations & financial institutions; and/or


(4)

tradespeople and similar contractors in order to facilitate the carrying out of works with respect to the Property; and/or


(5)

other third parties as may be required by the Agent for the purposes of marketing, sales promotion, administration and complying with legislative and regulatory requirements.

15.3

Without provision of certain information the Agent may not be able to act effectively or at all on the Principal’s behalf.

15.4

The Principal has the right to access such personal information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.

 

04 Feb 2011 v2.0

Additions / Changes:


Item 10

Where this Agreement relates to the leasing of a Property required under affected by the Building Energy Efficiency Disclosure Act 2010 (BEEDA) to have a valid and current rating of the energy efficiency of the Property (Recognised Rating), the Principal (as Owner):

(a) confirms it has a valid & current rating of the energy efficiency of the Property (Recognised Rating); and

(b) agrees and undertakes to provide details of the Recognised Rating to the Agent for inclusion in any advertisement of the Property or as otherwise required under the BEEDA.


Item 14

A signed copy of this Agreement signed by the Agent must be served, by the Agent, on the Principal/Landlord within 48 hours after signing by the Principal/ Landlord. If a copy was given at the time of signing, the Principal(s) confirm having received such copy by initialing.

 

__ Copy received by the Principal(s):   Date received: …./…./….  Principal(s) initials: ……………………

 

01 Jan 2011 v1.9

Additions / Changes:


Form Header

Open & Exclusive Leasing Agency Agreement - Commercial & Industrial

The Property, Stock and Business Agents Act 2002 & Regulations

 

01 Nov 2010 v1.8

Additions / Changes:


Item 10

Where this Agreement relates to the leasing of a Property affected by the Building Energy Efficiency Disclosure Act 2010 (BEEDA), the Principal (as Owner):

(a) confirms it has a valid & current rating of the energy efficiency of the Property (Recognised Rating); and

(b) agrees and undertakes to provide details of the Recognised Rating to the Agent for inclusion in any advertisement of the Property or as otherwise required under the BEEDA.


Item 13

Signature of Principal

 

………………………………………….

Date: ……/……/……

Signature of Principal

 

………………………………………….

Date: ……/……/……

Signature of Agent

 

………………………………………….

Date: ……/……/……

 


Clause 1.1(11)

Recognised Rating: includes any of the following:

(a)

Building Energy Efficiency Certificate; or

(b)

National Australian Built Environment Rating System (NABERS Energy Star Rating); or

(c)

other recognised rating for the Property.

Note: The above Recognised Ratings can be used during the transition period of the BEEDA which concludes on the 1st November, 2011 after which time a Building Energy Efficiency Certificate will be required.

 

10 Sep 2010 v1.7

Additions / Changes:


Item 4

This Agreement is an Open/Exclusive Agency Agreement

Select only one type below:

__ This Agreement is an Exclusive Leasing Agreement and for the period commencing on ……………………………….…….. and concluding on ……………………………………… and thereafter shall continue as a Non Exclusive Leasing Agreement which can be terminated in writing by either party on the giving of not less than …………..…… days notice. unless extended in writing by the Principal.

OR

__ This Agreement is an Open Leasing Agreement and is effective from ……/……/…… and can be terminated thereafter in writing by either party on the giving of not less than ……………………. days notice.

In any of the above, such termination will be without prejudice to either parties existing rights, duties or obligations.  This Agreement is terminated at such time when the Premises are leased.


Item 10

ADDITIONAL INSTRUCTIONS


Item 11

SPECIAL CONDITIONS

The Special Conditions are inserted under instruction from a party to this Contract and where not prepared by that party, were prepared by an Australian Legal Practitioner and not the Agent.  No warranty is given by the Agent.  Legal advice should be sought.


Item 12

Signature of Principal(s)                                Signature of Agent

 

………………………………………….                  …………………………………………..

Date: ……/……/……                                       Date: ……/……/…….

PS&BA Act Section 55(1)(c) – a copy of this Agreement signed by the Agent must be served on the Principal/Lessor within 48 hours after signing by the Principal/Lessor.


Item 13

A copy of this Agreement, signed by the Agent, must be served by the Agent, on the Principal/Landlord within 48 hours after signing by the Principal/Landlord. (See Section 55(1)(c) of the Act)

__ Copy received by the Principal(s):

Date received: …./…./….    Principal(s) initials: ……………………


Clause 13

The parties agree and confirm documents may be forwarded electronically to a person if that person has provided an email address or facsimile number, for delivery or service of documents, in the Item Schedule to this Agreement.

By signing this Agreement all parties acknowledge agree to having given prior approval in accordance with the Electronic Transactions Act 2000 No. 8, for electronic transmission of this Agreement and any other related documents agreements for signing purposes or otherwise, by such means of communication as have been indicated in this document (ie. Facsimile numbers and email addresses).


Clause 14

14.1

The Agent collects and uses personal information obtained from you as the Principal to provide the services required by you or on your behalf.  You as the Principal agree the Agent may collect, use and disclose such personal information in accordance with and subject to the Privacy Act 1988 (CTH) for (where applicable):


(1)

marketing; and/or


(2)

sales promotion and administration; and/or


(3)

legislative and regulatory requirements relating to promotion, administration and use of the Agent’s products and services; and/or


(4)

analysing, verifying and/or checking the Principal’s credit, payment and/or status in relation to provision of services.

14.2

Without provision of certain information the Agent may not be able to act effectively or at all on the Principal’s behalf.

14.3

The Principal has the right to request the Agent provide details of such information and also correct any inaccurate or out of date information.

 

10 June 2008 v1.6

Additions / Changes:


Item 4

This Agreement is an Open/Exclusive Agency Agreement

 

Select only one type below

... This Agreement is an Exclusive Leasing Agreement and commences on ……………………………….…….. and concludes on ……………………………………… unless extended in writing by the Principal.

 

... This Agreement is an Open Leasing Agreement and is effective from ……/……/…… and can be terminated thereafter in writing by either party on the giving of not less than ……………………. days notice. Such termination will be without prejudice to either parties existing rights, duties or obligations.  This Agreement is terminated at such time when the Premises are leased.


Clause 1.1(7)

Material Fact: A Material Fact has, where used in this Agreement, the meaning given to it by Section 52 of the Act.

 

20 Dec 2007 v1.4

Additions / Changes:


Clause 4.1

The Agent is authorised and directed, by the Principal, to disclose all relevant and material facts in relation to the Premises.


Clause 4.2

The Agent must, in compliance with Section 52 of the Act, not make any promise that is false, misleading or deceptive or conceal any material facts.


Clause 5.3

There is a positive obligation on the Principal to disclose relevant and material facts.  Any failure to disclose information known to the Principal which may detract from the letting of the Premises will be a breach of this Agreement.


Clause 6.9

The Principal acknowledges before entering into this Agreement the Agent has provided a printed guide to the Agent’s Fees and Commissions and to the Expenses for which the Agent will require to be reimbursed.


Clause 7.1(c)

the Principal’s failure to give the Agent prompt and appropriate authority or instruction to carry out an instruction or authority; or

 

05 Apr 2007 v1.3

Additions / Changes:


Item 10

The Agent is / is not authorised to conjunct with other agents for a Conjunctional Leasing of the Premises for the duration of this Agreement. If so Commission is:

 

Commission Apportionment as a %: (If not completed Commission will be apportioned equally)

 

Appointment Agent: ...........................  Conjuncting Agent: ..................................