Open & Exclusive Leasing Agency Agreement - AUNSWREPM016

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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 v5.5

Additions / Changes:

 

Item 4

AGENT’S APPOINTMENT

(1)

Exclusive Appointment:

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

Note: If this sub Item 4(1) is not completed this will be a Non-Exclusive Appointment.

(2)

Non-Exclusive Appointment:

A Non-Exclusive Appointment will commence:


(a)

From the end of the term of Exclusive Leasing Appointment


(b)

Where Item 4(1) is not completed, from the date of signing this Agreement

(3)

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

 

Item 4

AGREEMENT

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

Note: Where the agreement type is not indicated above this Agreement will be an Exclusive Leasing Agency Agreement.

 

15 Oct 2018 v5.4

Additions / Changes:

 

All instances of 'fax' removed.

 

Item 4

AGENT’S APPOINTMENT

(1)

Exclusive Appointment:

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

Note: If this sub Item 4(1) is not completed this will be a Non-Exclusive Appointment.

(2)

Non-Exclusive Appointment:

A Non-Exclusive Appointment will commence:


(a)

From the end of the term of Exclusive Leasing Appointment


(b)

Where Item 4(1) is not completed, from the date of signing this Agreement

(3)

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

 

Item 4

AGREEMENT

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

Note: Where the agreement type is not indicated above this Agreement will be an Exclusive Leasing Agency Agreement.

 

Clause 3.1

The Owner appoints the Agent (and its permitted assigns) in accordance with Item 4 for the duration of this Agreement.

 

Clause 3.1

In consideration of and in accordance with the terms of this Agreement, the Owner appoints the Agent (and its permitted Assigns), for the duration of this Agreement to lease the Property for the Owner and the Agent agrees. Authority vested in the Agent by this Agreement shall be deemed to be vested in the Agent’s authorised employees.

 

Clause 3.2

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

 

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 8.3

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

 

Clause 14.2

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

 

Clause 18.1

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 18.8

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 v5.3

Additions / Changes:

 

Item 5.1

5.1

The Owner authorises the Agent to undertake the following services in relation to the Leasing of the Property:

[Tick authorised options – if an option is not ticked it is not authorised]


(1)

__

Obtain and verify references from prospective tenants


(2)

__

Refer any suitable prospective tenants to the Owner


(3)

__

Choose Tenants


(4)

__

Enter into and sign Tenancy Agreements


(5)

__

Undertake an initial inspection of the Property


(6)

__

Collect initial rent payment


(7)

__

Receive, lodge, claim and disburse Rental Bond money in accordance with the provisions of the Residential Tenancies Act 2010


(8)

__

Advertise the Property for letting or re-letting in accordance with Item 6


(9)

__

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



 

(i)

Where the Property is not tenanted, in accordance with the Owner’s instructions.



 

(ii)

Where the Property is tenanted, in accordance with the Owner’s instructions and subject to the Tenancy Agreement

 

Item 14

Signature of Owner(s) or Owner’s     Date:     Signature of Agent                       Date:

authorised representative

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

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(4)

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(12)

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

 

Clause 2

By signing this Agreement the Owner(s) or the Owner’s authorised representative warrants and confirms:

(1)

it is the owner or the Owner’s authorised representative of the Property

(2)

it has read this Agreement

(2)

it has authority to enter into this Agreement

(3)

it has disclosed to the Agent in writing all Material Facts and has not made any statement known to be false, misleading or deceptive in compliance with Section 26 of the Residential Tenancies Act 2010.


 

Clause 17

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 this Agreement.

 

Clause 18

Related Documents / Notices / Electronic Communication

18.1

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.

18.2

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 18.2(1) to (4) above.

18.3

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.

18.4

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).

18.5

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

18.6

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.

18.7

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.

18.8

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.

 

24 Jul 2017 v5.2

Additions / Changes:

 

Item 1

Name/s:            .................................................................................................................................

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

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

              ............................................................................................. ABN: ...................................

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

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

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

Address:  .........................................................................................................................................

Phone: (…)…………………… Email: ………………………………………………………………………………

 

Item 3

Address: ..........................................................................................................................................

Included Items:

 

 

Excluded Items:

 

Permitted number of Occupants: ........................................................................................................

Pets Permitted:  __ Yes __ No    Details (if any): ……………………………………………………................

Smoke Alarms are/are not installed in accordance with Part 9, Division 7A of the Environmental Planning and Assessment Regulation 2000.

(a) smoke alarms last tested and cleaned: ....../....../......  (b) Date batteries last changed: ....../....../......

{Owners of all houses and units dwellings in NSW must install and maintain smoke alarms in compliance with the Environmental Planning and Assessment Regulation 2000 as amended}

 

An Electrical Safety Power Switch is / is not installed for general purpose socket outlets.    

 

Item 4

This Agreement is an Exclusive/Non-Exclusive Leasing Agency Agreement, effective from ....../....../...... and can be terminated thereafter in writing by either party on the giving of not less than ………………. days’ notice in writing. Such termination will be without prejudice to either parties existing rights, duties or obligations. This Agreement is terminated when the Property is leased.

Note: Where the agreement type is not indicated above this Agreement will be an Exclusive Leasing Agency Agreement.

 

Item 5

5.1

The Owner authorises the Agent to undertake the following services duties in relation to the Leasing of the Property:

[Tick authorised options]


(1)

__

Obtain and verify references from prospective tenants


(2)

__

Refer any suitable prospective tenants to the Owner


(3)

__

Choose Select Tenants


(4)

__

Enter into and sign Tenancy Agreements


(5)

__

Undertake an initial inspection of the Property


(6)

__

Collect initial rent payment


(7)

__

Receive, lodge, claim and disburse Rental Bond money in accordance with the provisions of the Residential Tenancies Act 2010


(8)

__

Advertise the Property for letting or re-letting in accordance with Item 6


(9)

__

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




(i)

Where the Property is not tenanted, in accordance with the Owner’s instructions.




(ii)

Where the Property is tenanted, in accordance with the Owner’s instructions and subject to the Tenancy Agreement

5.2

Tenancy


(1)

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


(2)

Rent:

(a)

Proposed Rent Amount: $ …………………………… per week/fortnight/month




(b)

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

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


(3)

Rental Bond: …………………… or equivalent to ……………………… weeks rent

5.3

Other authorisations/limitations

 

 

Item 7

FEES FOR SERVICES   (Fees payable to Agent for Services)

7.1

Description of Service/Fee

Fee (GST Inclusive)

*Due and Payable

Letting Fee (cl 1.1(6))


 

Administration Fee (cl 1.1(2))


 



 



 



 

7.2

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

 


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




 

Item 8

CHARGES AND EXPENSES

The Owner shall reimburse the Agent for the following authorised Expenses incurred during the letting of the Property:

Description of Expense

Amount (GST Inclusive)

*Due and Payable

Letting Advertising


 

Office and Clerical Expenses


 

Travel and Out of Pocket Expenses


 

Bank Charges


 



 



 



 

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

 

Item 10.3

LFAI Questionnaire

Landlords note: Properties constructed before 1980 may contain loose-fill asbestos insulation.

Prior to signing this Agreement the Landlord has completed and provided to the Agent a

Residential Premises Loose-fill Asbestos Insulation Questionnaire.                                      __ Yes __ No

__ Residential Premises Loose-fill Asbestos Insulation Questionnaire has been completed by the Landlord and given to the Agent prior to signing this agreement.

 

Item 13

SPECIAL CONDITIONS

The Special Conditions to this Agreement are where inserted at the direction of under instruction from the Owner a party to this Agreement and where not prepared by that party, 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 14

Signature of Owner(s) or Owner’s authorised representative

 

 

Date:

Signature of Agent  

 

 

Date:

................................

...... / ...... / ......

................................

...... / ...... / ......

Note: Where signed by Owner’s authorised representative evidence of authority must be provided.

 

Item 15

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 Owner within 48 hours after signing by the Owner. If a copy was given at the time of signing the Owner(s) confirm having received such copy by initialing.

Owner(s) initials: ………………………………

 

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 2014 as amended from time to time.

(2)

Administration Fee: monies due to the Agent as provided in Item 7 to cover standard administrative costs

(3)

Agreement: this Agency Agreement, consisting of:


(a)

the Item Schedule – Leasing Agency Agreement; and


(b)

the Terms of Agreement; and


(c)

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

(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 attached Item Schedule forming part of this Agreement.

(6)

Letting Fee: monies due to the Agent as provided in Item 7 on a Tenant entering into an initial Tenancy Agreement.

(7)

LFAI: means Loose-fill Asbestos Insulation.

(8)

LFAI Register: means the register of residential premises that contain or have contained loose-fill asbestos insulation that is required to be maintained under Division 1A of Part 8 of the Home Building Act 1989.

(9)

Material Fact: A Material Fact has, where used in this Agreement, the meaning given to it by Section 52 of the Act and includes matters set out in Section 7 of the Residential Tenancies Regulation 2010.

Material Fact: where used in this Agreement includes, but is not limited to, facts required to be disclosed under the Property, Stock and Business Agents Act 2002, the Residential Tenancies Act 2010 and material facts prescribed in section 7 of the Residential Tenancies Regulation 2010.

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

(10)

Property: the land and improvements thereon forming the residential premises the subject of this Agreement (as described in Item 3).

(11)

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) or the Owner’s authorised representative warrants and confirms:

(1)

it is the Owner or the Owner’s authorised representative of the Property

(2)

it has having read this Agreement

(3)

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

(3)

it has having authority to enter into this Agreement

(4)

it has disclosed to the Agent in writing all Material Facts and has not made any statement known to be false, misleading or deceptive in compliance with Section 26 of the Residential Tenancies Act 2010.

 

Clause 3

Exclusive Appointment of Agent

3.1

If tThe Owner by this Agreement appoints the Agent (and its permitted assigns) as Exclusive Letting Agent in accordance with Item 4 for the duration of this Agreement the Owner will refer any prospective tenants of which the Owner 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 Property is leased at any time during the term of this Agreement whether by the Agent, the Owner, or any other party; or


(2)

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

3.2

In consideration of and in accordance with the terms of this Agreement, the Owner appoints the Agent and its permitted Assigns, to lease the Property for the Owner and the Agent agrees. Authority vested in the Agent by this Agreement shall be deemed to be vested in the Agent’s authorised employees.

3.3

The Owner appoints the Agent and it’s permitted Assigns to lease the Property for the Owner and the Agent agrees.

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

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

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.

3.5

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 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 4.4

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 tenant. 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 4.4

The Agent is authorised to lease the Property, in accordance with Item 5.1 (1), (2), (3) and (4), and/or as further instructed in writing by the Owner.

 

Clause 4.5

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

 

Clause 4.5

(1)

Where the Agent is authorised to choose a Tenant (Item 5.1(3)) the Agent will choose the successful Tenant based on criteria provided by the Owner, otherwise;

(2)

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. Provided however, the Owner confirms it does not rely on the Agent to establish beyond the extent of the criteria, the suitability of the Tenant

 

Clause 4.6

The Agent will, subject to the Owner's written instructions, negotiate on behalf of the Owner any Tenancy Agreement or amendments or variations thereto, including any other documents in relation to the Tenancy Agreement authorised by this Agreement, and;

(1)

where the Agent is authorised to enter into and sign the Tenancy Agreement, execute the Tenancy Agreement on behalf of the Owner, otherwise;

(2)

provide a Tenancy Agreement, duly signed by the Tenant/s, to the Owner for execution.

 

Clause 4.9

(1)

The Agent must, by provide providing financial statements, and account to the Owner with respect to all monies collected, received, paid or used by the Agent in carrying out the Agent’s obligations under this Agreement.

(2)

The Agent will issue tax invoices when necessary in respect of all monies owing by the Owner to the Agent.

 

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 about in relation to the Property

 

Clause 6.2

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

 

Clause 8

Agent’s Fees and Remuneration Reimbursement

8.1

The Agent shall be entitled to Fees for services and remuneration for 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.

8.1

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:



(a)

where this Agreement is an Exclusive Agreement (Item 4), and the Property 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)

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



(c)

should the Agent introduce 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.

8.2

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 Property being leased.

8.2

All Fees, Charges and Expenses to which the Agent is entitled:


(1)

will be in the amounts set out in Items 7 and 8 respectively, or otherwise authorised in writing by the Owner, and include any taxes or deductions debited by financial institutions against the Agent’s account and attributable to the affairs of the Owner; and


(2)

unless otherwise specified in Items 7 and 8, will be payable upon provision by the Agent of a tax invoice or statement of account.

8.3

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

8.3

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

8.4

The Owner acknowledges and confirms the provision of Clauses 8.2 and 8.3 and understands that where the Agent is appointed as Exclusive Agent for the term of this Agreement (Item 4) the Property may not be leased without the Owner paying the Agent a Letting Fee (Item 7).

8.4

Unless otherwise 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.

8.5

Letting Fees shall be calculated as a percentage of the annual rent (not including GST) under the Tenancy Agreement. Such percentage more particularly as set out in Item (7).

8.5

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.

8.6

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

 

Clause 10

10.1

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:


(1)

authorised letting advertising or signage; or


(2)

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


(3)

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


(4)

the Tenant’s failure to comply with his/her obligations according to the Tenancy Agreement at no fault of the Agent; or


(5)

the Tenant’s failure to comply with his/her obligations under the Residential Tenancies Act 2010 and/or other relevant acts and legislation; or


(6)

the Agent acting in the capacity of the Owner under this Agreement (except in the case of negligence on the part of the Agent); or


(7)

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


(8)

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


(9)

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



The Agent will be indemnified by the Owner in respect of actions, claims, demands, losses, costs, damages and expenses arising out of this Agreement &/or resultant upon any act, omission or negligence on the part of the Owner.

10.2

The Owner acknowledges that the Agent is acting as a Leasing Letting Agent and is not responsible for reporting any matter (including defects, latent or otherwise) other than those that are readily apparent during the course of any inspection 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 Property 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, not withstanding the Agent’s Obligations under Clause 4.

 

Clause 12

Termination

12.1

Either party may terminate this Agreement by giving notice in accordance with Item 4.

12.2

Any termination shall be without prejudice to either party's existing rights, duties or obligations under this Agreement.

12.3

Upon termination of this Agreement all monies owing under this Agreement must be paid or reimbursed up to and including the last day of the notice period set out in Item 4 on a pro rata basis if necessary.


 

Clause 17

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.

 

30 May 2016 v5.1

Additions / Changes:

 

Item 11

LANDLORD’S DISCLOSURE TO PROSPECTIVE TENANTS  

Note: Landlord must Please complete this Item both sections below:

 

Section 26 (1) of the Residential Tenancies Act 2010  provides that  a Landlord or Landlord’s Agent must not induce a tenant to enter into a residential tenancy agreement by any statement, representation or promise that the Landlord or Agent knows to be false, misleading or deceptive or by knowingly concealing a material fact of a kind prescribed by the regulations. (See Item (11)(2))

1.

Disclosures Required under Section 26(2) of the Residential Tenancies Act 2010:

(1)

Any proposal to sell the Property:  if ‘yes’ when: …………………………………  __ Yes __ No

(2)

Has a contract to sell the Property already been prepared:                               __ Yes __ No

(3)

Has a mortgagee taken action for possession of the Property:                          __ Yes __ No

(4)

Has the mortgagee commenced proceedings in a court to enforce a mortgage over the Property:

__ Yes __ No

2.

In accordance with section 26(1) of the Residential Tenancies Act 2010, Tthe Residential Tenancies Regulation 2010 prescribes the following as Material Facts in accordance with Section 26 (1) of the Residential Tenancies Act 2010:

(1)

the Property has been subject to flooding or bush fire in the preceding 5 years:

__ Yes __ No

(2)

the Property is are subject to significant health or safety risks that are not apparent to a reasonable person on inspection of the Property: (eg. Asbestos, lead paint, presence of mould)                                                                                                                  __ Yes __ No

(3)

the Property (of which the residential premises are a part) is listed in the LFAI Register

__ Yes __ No

(4)

the Property have been the scene of a serious violent crime within the preceding 5 years:          __ Yes __ No

(5)

council waste services will be provided to the tenant on a different basis than is generally applicable to residential premises within the area of the council:                     __ Yes __ No

(6)

that because of the zoning of the land, or other laws applying to development on the land, the tenant will not be able to obtain a residential parking permit (in an area where only paid parking is provided):                                                                                                __ Yes __ No

(7)

there exists  a driveway or walkway on the Property which other persons are legally entitled to

share with the tenant:                                                                                  __ Yes __ No

Please provide additional information where you have answered ‘yes’ to any of the above statements:

 

3.

LFAI Questionnaire

__ Residential Premises Loose-fill Asbestos Insulation Questionnaire has been completed by the Landlord and given to the Agent prior to signing this agreement.

4.

Additional Matters not prescribed by the Residential Tenancies Regulation 2010: (if insufficient room, attach schedule)

(1)

Requirements of an Owner’s Corporation (if any) in addition to By-laws:

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

(2)

Any Requirements as to repair or servicing to property, chattels or services:

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

(3)

Details of any telephone &/or internet services available:

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

 

Clause 1.1(4)

LFAI: means Loose-fill Asbestos Insulation.

 

Clause 1.1(5)

LFAI Register: means the register of residential premises that contain or have contained loose-fill asbestos insulation that is required to be maintained under Division 1A of Part 8 of the Home Building Act 1989.

 

Clause 5.1

The Owner confirms having, at the time of entering into this Agreement, disclosed correct details to the Agent of all relevant and Material Facts relating to the Property and having complied with the requirements of Section 26 of the Residential Tenancies Act 2010 and Regulations relating thereto.

 

Clause 6

Owner’s Obligations Regarding the Property Swimming Pool

The Owner will ensure, at its own cost:

(1)

any swimming pool on the Property complies with the Swimming Pool Act 1992 (NSW) and in particular, in accordance with the Act and Regulations:

(a)

is registered;

(b)

where required, has a valid/relevant Certificate of Compliance/Occupation;

(c)

has a warning notice/s erected near the swimming pool;

and will provide any Certificate of Compliance to the Agent on request.

(2)

the Property and inclusions are reasonably clean and comply with local and state authority building and work health and safety legislation.

(3)

the Property is safe and fit for the Tenant/s to live in.

 

Clause 7

LFAI

7.1

Where the agent suspects the possibility of LFAI being present in the residential premises the agent:

(1)

will notify the Landlord and request that the Landlord organises a LFAI inspection

(2)

is not obligated or required to organise maintenance work that involves:

(a)

drilling into walls or ceilings; or

(b)

access to subfloors or ceiling spaces.

7.2

Where a LFAI inspection is undertaken:

(1)

The landlord will provide the agent with the test results;

(2)

The agent will inform tenants of the test results; and

(3)

Where the likelihood of exposure to airborne asbestos fibres is high, the agent is authorised to advise their workers, clients and prospective clients and if appropriate exclude them from accessing the site.

 

11 Jun 2015 v5.0

Copyright statement updated.

 

03 Sep 2014 v4.9

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.

 

29 Apr 2014 v4.8

Additions / Changes:

 

Item 10

SWIMMING POOL                                                                                   Clauses 5.1, 5.5 & 6

Swimming Pool   __ Yes  __ No   If 'Yes' >     Swimming Pool Registered                          __ Yes  __ No

                                                                   Valid Certificate of Compliance/Occupation   __ Yes  __ No

 

Clause 1.1(5)

Property: the land and improvements thereon forming the residential premises the subject of this Agreement (as described in Item 3).

 

Clause 6

Principal’s Obligations Regarding the Swimming Pool

The Principal will ensure, at its own cost, any swimming        pool on the Property complies with the Swimming Pool        Act 1992 (NSW) and in particular, in accordance with the        Act and Regulations:

(a)

is registered;

(b)

where required, has a valid/relevant Certificate of Compliance/Occupation;

(c)

has a warning notice/s erected near the swimming pool;

and will provide any Certificate of Compliance to the Agent on request.

 

12 Mar 2014 v4.7

Additions / Changes:

 

Clause 15

Privacy Statement

15.1

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.

15.2

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.

15.3

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 Property; 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, administration relating to the use of the Agent’s products and services and complying with legislative and regulatory requirements.

15.4

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

15.5

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.

15.6

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

 

01 Jan 2014 v4.6

Additions / Changes:


Clause 9

Disputes may be referred to the Consumer, Trader and Tenancy Civil and Administrative Tribunal for determination.

 

11 Sep 2012 v4.5

Additions / Changes:


Clause 8.1(f)

the Agent acting in the capacity of the Principal under this Agreement (except in the case of negligence on the part of the Agent)


Clause 15.2(2)

property data collection agencies; and/or

 

01 Jan 2012 v4.4

Additions / Changes:


Clause 7

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. rovided however, in carrying out such obligations the Agent acts only as Agent for the Principal.


Clause 8.1

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:

 

02 Aug 2011 v4.3

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 will be 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 13

The parties agree and confirm this Agreement 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 14.4

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.

 

21 Feb 2011 v4.2

Additions / Changes:


Item 3

Smoke Alarms are/are not installed in accordance with Part 9, Division 7A of the Environmental Planning and Assessment Regulation 2000.

(a) smoke alarms last tested and cleaned: …../…../……  (b) Date batteries last changed: …../…../……

{Owners of all houses and units dwellings in NSW must install and maintain smoke alarms in compliance with the Environmental Planning and Assessment Regulation 2000 as amended}

An Electrical Safety Power Switch is / is not installed for general purpose socket outlets.


Item 10

Section 26 (1) of the Residential Tenancies Act 2010  provides that  a Landlord or Landlord’s Agent must not induce a tenant to enter into a residential tenancy agreement by any statement, representation or promise that the Landlord or Agent knows to be false, misleading or deceptive or by knowingly concealing a material fact of a kind prescribed by the regulations. (See Item (10)(2))

1.

Disclosures Required under Section 26(2) of the Residential Tenancies Act 2010:

 

(1)  Any proposal to sell the Property:  if ‘yes’ when: ………….........………………....

(2)  Has a contract to sell the Property already been prepared:

(3)  Has a mortgagee taken action for possession of the Property:

(4)  Has the mortgagee commenced proceedings in a court to enforce a mortgage over the Property:

__ Yes  __ No

__ Yes  __ No

__ Yes  __ No

 

__ Yes  __ No

2.

The Residential Tenancies Regulation 2010 prescribes the following Material Facts in accordance with Section 26 (1) of the Residential Tenancies Act 2010:

 

(1)  the Property has been subject to flooding or bush fire in the preceding 5 years:

(2)  the Property are subject to significant health or safety risks that are not apparent to a reasonable person on inspection of the Property: (eg. Asbestos, lead paint, presence of mould)

(3)  the Property have been the scene of a serious violent crime within the preceding 5 years:

(4)  council waste services will be provided to the tenant on a different basis than is generally applicable to residential premises within the area of the council:

(5)  that because of the zoning of the land, or other laws applying to development on the land, the tenant will not be able to obtain a residential parking permit (in an area where only paid parking is provided):

(6) there exists a driveway or walkway on the Property which other persons are legally entitled to share with the tenant:

__ Yes  __ No

 

 

__ Yes  __ No

 

__ Yes  __ No

 

__ Yes  __ No

 

 

__ Yes  __ No

 

__ Yes  __ No

 

Please provide additional information where you have answered ‘yes’ to any of the above statements:

..................................................................................................................................................

3.

Additional Matters not prescribed by the Residential Tenancies Regulation 2010: (if insufficient room, attach schedule)

(1)  Requirements of an Owner’s Corporation (if any) in addition to By-laws:

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

(2)  Any Requirements as to repair or servicing to property, chattels or services:

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

(3) Details of any telephone &/or internet services available:

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


Clause 1.1(4)

Material Fact: A Material Fact has, where used in this Agreement, the meaning given to it by Section 52 of the Act and includes matters set out in Section 7 of the Residential Tenancies Regulation 2010.


Clause 2(4)

it has disclosed to the Agent in writing all Material Facts and has not made any statement known to be false, misleading or deceptive in compliance with Section 26 of the Residential Tenancies Act 2010.


Clause 4.1

The Agent is authorised and directed, by the Principal in compliance with the Act and the Residential Tenancies Act 2010, to disclose all relevant and material facts in relation to the Property.


Clause 5.1

The Principal confirms having, at the time of entering into this Agreement, disclosed correct details to the Agent of all relevant and Material Facts relating to the Property and having complied with the requirements of Section 26 of the Residential Tenancies Act 2010.


Clause 14

14.1

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.

14.2

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.

14.3

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

14.4

The Principal has the right to request the Agent provide details of such information provided and also do all things reasonably necessary to amend or remove correct any inaccurate or out of date information.



 

 

31 Jan 2011 v4.1

Additions / Changes:


Item 3

Smoke Alarms are/ are not installed in accordance with Part 9, Division 7A of the Environmental Planning and Assessment Regulation 2000.


Item 5.1(7)

__  Receive, lodge, claim and disburse Rental Bonds in accordance with the provisions of the Residential Tenancies Act 2010 Landlord and Tenant (Rental Bonds) Act 1977


Item 10

ADDITIONAL INSTRUCTIONS


Item 11 Note

The Special Conditions are inserted under instruction from a party to this Agreement 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)

 

………………………………………….

Date: ……/……/……

Signature of Agent

 

………………………………………….

Date: ……/……/……

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


Item 13

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: ……………………


Clause 7.1(e)

the Tenant’s failure to comply with his/her obligations under the Residential Tenancies Act 2010 and or other relevant acts and legislation; or


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).

 

23 Sept 2009 v4.0

Additions / Changes:


Clause 3.5

When delegating authority to authorised employers 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.

 

30 Jun 2008 v3.9

Additions / Changes:


Clause 1.1(4)

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

 

10 June 2008 v3.8

Additions / Changes:


Item 7

Grid Header

Description of Service/Fee

Fee (GST Inclusive)

*Due and Payable

 


Item 7

Note

A fee may be expressed as either: a) Fee + GST = GST inclusive Fee or b) single GST inclusive figure


Item 8

Grid Header

Description of Expense

Amount (GST Inclusive)

*Due and Payable

 

20 Dec 2007 v3.7

Additions / Changes:


Item 3

Smoke Alarms are / are not installed in accordance with Division 7A of the Environmental Planning and Assessment Regulation 2000.

{Owners of all houses and units dwellings in NSW must install and maintain smoke alarms in compliance with the Environmental Planning and Assessment Regulation 2000 as amended}


Clause 4.1

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


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 4.7

The Agent is authorised to deduct from monies received by the Agent on behalf of the Principal 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 5.3

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 Property will be a breach of this Agreement.


Clause 6.8

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

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 Tenancy Agreement at no fault of the Agent; or

(e)

the Tenant’s failure to comply with his/her obligations under the Residential Tenancies Act 1987 and/or other relevant acts and legislation; or

(f)

the Agent acting in the capacity of the Principal under this Agreement.

The Agent will be indemnified by the Principal in respect of actions, claims, demands, losses, costs, damages and expenses arising out of this Agreement or resultant upon any act, omission or negligence on the part of the Principal.

 

05 Apr 2007 v3.6

Additions / Changes:


Item 10

The Agent is / is not authorised to conjunct with other agents for a Conjunctional Leasing of the Property 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: ..................................

 

10 Jan 2006 v3.4

Additions / Changes:


Clause 10

By signing this Agreement all parties 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 agreements, for signing purposes or otherwise, as far as such means of communication have been indicated in this document (ie. Facsimile numbers & email addresses).

 

22 June 2005 v3.3

Additions / Changes:


Item 4

This Agreement is an Exclusive/Open Leasing Agency Agreement, starting on ..../..../.... and will be terminated when the property is let or at any time in writing with ............. days notice by either party without prejudice.