Articles in Category: Member Update

Contents of Real Estate Excellence Member update - emailed to members the first week of each month plus loaded online in the Member updates folder.


Real Estate Award changes

Source www.fairwork.gov.au April 6 2018

New Real Estate Award pay rates are available

The Fair Work Commission has made some changes to the Real Estate Award which may affect you.

These changes include introducing new pay rates and classifications for employees covered by the Real Estate Award.

Where can you find the new rates?

Use our updated Pay Calculator or download the updated Real Estate Award Pay Guide to get the new pay rates.

These rates apply from the first full pay period starting on or after 2 April 2018. So if your pay week is Friday to Thursday, the new rates need to be paid from Friday 6 April (today).

Interested in other changes?

There are a number of other changes that affect:

  • commission only employment
  • payments on termination of employment
  • annual leave for commission only employees.

Read more about the changes on our website.

You can also check out the Real Estate Industry Award 2010 [MA000106] which has been updated to include the changes. 

You might also be interested in

RTA prosecution

Sourced from www.rta.qld.gov.au 8th August 2018

Getting your agreements "Wright"

Stuart James Wright, the principal licensee of Three Sista’s Pty Ltd, pleaded guilty to 17 offences, which included using the wrong tenancy agreements, unlawful eviction and falsifying documents. Magistrate Luxton fined Wright $16,000, ordered him to pay costs of $2,350, and recorded convictions.

“The offending is protracted and the victims of these offences were vulnerable tenants with somewhat limited financial means,” Magistrate Luxton said.

“This type of offending behaviour must be denounced and discouraged…the intent of the legislation is to put in place a system where the rights of both tenants and property owners are protected.”

Magistrate Luxton noted that directors had an obligation to ensure that the correct agreements were being entered into with the tenants. In Mr Wright’s case, tenants were signed up to rooming accommodation agreements for self-contained units, instead of residential tenancy agreements as required by the Act. The significance of this was that the two different agreements altered tenants’ rights dramatically in certain situations.

For example, general tenancy agreements require seven-day notice periods to remedy any breaches, followed by a further seven-day notice period to vacate, after which an order by the Queensland Civil and Administrative Tribunal is required should the tenant refuse to vacate. This differs significantly to rooming accommodation agreements, which allow for tenants to be evicted immediately under certain circumstances.

Unlike general tenancies, rooming accommodation agreements can occur when a resident: has a right to occupy 1 or more rooms, does not have a right to occupy the whole of the premises in which the rooms are situated, does not occupy a self-contained unit, and shares other rooms, or facilities outside of their room (with 1 or more of the other residents).

In Wright’s case, tenancies that should have ordinarily fallen under general tenancy agreements were incorrectly treated as rooming accommodation.

Over the past year, the RTA has initiated more PINs and prosecutions than ever before due to a pattern of re-offending and disregard for compliance requirements.

RTA Chief Executive Officer Jennifer Morgan said that agents must ensure they are completing forms and documentation correctly, and fully. “Documentation is key, and the RTA will consider prosecuting individuals or companies found to have provided false and misleading information to the RTA and parties to the tenancy agreement,” she said.

“There is a common misconception among some real estate agents that offences under the Act are civil matters. The RTA would like to make it clear that these matters are criminal offences that are prosecuted through the Magistrates Court.”

If found guilty, a criminal conviction may be recorded by the court, and this could impact an agent personally, such as when they go to renew their licence.

Read more about penalties, prosecutions and offences relating to the Act, or call the RTA on 1300 366 311.

Residential sales training - Qld rental laws

An hour and a little bit more of power private training session

The RTRA Act sets out the ‘rules of entry’ for rental property in Queensland. Breaching rules of entry provisions are penalty unit provisions if investigated and or prosecuted by the Residential Tenancies Authority (RTA). This great active presentation by Stacey Holt can greatly assist salespeople and administrators of the laws relating to sales and rental property in Queensland.

Contact us for a no obligation proposal for private training services

Topics of the session are as follows;

Salespeople and rental property

Disclosure to tenants prior to commencing tenancy

When a Form 10 Notice of intention to sell should be given to tenants – the law

Entry requirements to access rental property

Handing out of keys to salespeople

If a rental property goes on the market for sale in the first 2 months of a tenancy

If a tenant refuses entry to show buyers through

Notice periods for entry and how to calculate notice periods

Notice periods expiring on a weekend or public holiday

Building and pest inspections and sales

Taking photos

Open homes and onsite auctions

Notice periods for vacant possession for a contract of sale

Transfer of the tenancy by the lessor

Listing a property for rent that has not yet settled

The RTRA Act and contract of sale – the seller becomes the tenant

QCAT to hear a tenant claim of over $80000

Queensland

In what is a landmark decision in my view, Justice Daubney, President of QCAT, has handed down an appeal decision allowing a tenant claim for a hot water system water leak of over $80 000 to be heard in QCAT.

QCAT has a prescribed amount of matters to be heard of up to $25 000; this published appeal now changes that due to ‘law’ and the relevant sections of the Act discussed during this case.

The matter was originally heard in QCAT and was dismissed to be heard in the Magistrates Court due to the amount being claimed against the lessor by the tenant; the appeal overturns that decision and allows the matter to proceed back to QCAT to be heard. Scroll down to review the case, and or download PDF version here

Members of Real Estate Excellence; I shall provide more information in the June member update service which will be released early due to this matter. June Real Estate Excellence member update online as at 15th May 2018.

Avery v Pahwa [2018] QCATA 53 (10 May 2018)

Last Updated: 10 May 2018

CITATION:
Avery & Ors v Pahwa & Anor 2018 QCATA 53
PARTIES:
Peter John Avery
(First Applicant)
Jill Lesley Avery
(Second Applicant)

Benjamin John Avery
(Third Applicant)

v
Suresh Pahwa
(First Respondent)
Lynnette Pahwa
(Second Respondent)
APPLICATION NUMBER:
APL148-17
MATTER TYPE:
Appeals
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Justice Daubney, President
DELIVERED ON:
10 May 2018
DELIVERED AT:
Brisbane
ORDERS MADE:
  1. The applicants have leave to appeal.
  2. The appeal is allowed.
  3. The decision of 11 April 2017 transferring the matter to the Magistrates Court at Southport for further hearing is set aside.
  4. The matter is otherwise remitted to the Tribunal at Southport for further hearing.
CATCHWORDS:
APPEALS – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – application for compensation – where compensation sought is in excess of prescribed amount – whether Tribunal has jurisdiction when claim over $25,000

Queensland Civil and Administrative Tribunal Act 2009, s 11, s 13
Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009, s 94
Residential Tenancies and Rooming Accommodation Act 2008, s 516

Hough v Department of Housing and Public Works [2012] QCAT 579
North South Real Estate & Anor v Kavvadas [2017] QCAT 306

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

[1] The applicants were the tenants of a unit owned by the respondents at Main Beach on the Gold Coast. On 13 September 2016, there was a leak from the unit’s hot water system. The applicants claim that a considerable amount of their personal property was damaged as a consequence of that leak. The applicants also contend that they were not able to use several of the bathrooms in the unit for a considerable period during their tenancy and also that the property was afflicted by mould issues.
[2] On 10 March 2017, the applicants filed an “application for minor civil dispute – residential tenancy dispute” in the Tribunal. Relevantly, the application sought orders under the Residential Tenancies and Rooming Accommodation Act 2008 (“RTRAA”) for the payment of money or compensation totalling $88,173, comprising $56,923 for the damage to property and $31,250 for “rent reduction”.
[3] On 10 April 2017, the application came on before a QCAT Adjudicator at Southport. The adjudicator took the view that, because the amount claimed by the applicants was more than $25,000, it was beyond QCAT’s jurisdiction. The adjudicator referred the matter to a Senior Member of the Tribunal with a recommendation that the matter “be heard by a Magistrate with jurisdiction to hear the claimed amount”. Consistent with that recommendation, a decision was then formally made that the application “be transferred to the Magistrates Court at Southport for further hearing.
[4] On 8 May 2017, the applicants filed an “application for leave to appeal or appeal” in respect of the decision to transfer the matter to the Magistrates Court.
[5] Put simply, the question raised is whether QCAT has jurisdiction in a “tenancy matter”,[1] where the amount claimed exceeds $25,000, which is the “prescribed amount” for a minor civil dispute under the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
[6] Differing views about this question have been expressed in a number of QCAT decisions. In Hough v Department of Housing and Public Works,[2] it was decided that, on a proper construction of the RTRAA and the QCAT Act, there was no such monetary limitation on QCAT’s jurisdiction in tenancy matters. A contrary approach, however, was adopted in North South Real Estate & Anor v Kavvadas.[3] Given that divergence, it is clearly appropriate for the applicants to have leave to appeal so that this discrete issue might be settled.
[7] In the QCAT Act, “minor civil dispute” is defined in Schedule 3 to mean, amongst other things, “a tenancy matter”. “Tenancy matter” is defined in Schedule 3 as “a matter in relation to which a person may, under the [RTRAA] apply to the tribunal for a decision”.
[8] Section 11 of the QCAT Act confers jurisdiction on the Tribunal to hear and decide a minor civil dispute. Section 13(1) provides that, in a proceeding for a minor civil dispute, the Tribunal must “make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the tribunal considers it appropriate, make an order dismissing the application”. However, that general power is circumscribed by section 13(2) which relevant provides:

“(2) For subsection (1), the tribunal may make only the following final decisions to resolve the dispute –

...

(b) for a tenancy matter – a decision the tribunal may make in relation to the matter under the [RTRAA].”

[9] Section 13 then goes on:

“(3) However, the tribunal can not make an order or decision under subsection (2) that –

(a) purports to require payment of an amount, performance of work or return of goods of a value of more than the prescribed amount; or

(b) purports to grant relief of a value of more than the prescribed amount from the payment of an amount; or

(c) combines 2 or more orders mentioned in subsection (2)(a)(i) to (iv) and purports to award or declare entitlements or benefits (or both) of a total value of more than the prescribed amount.

(4) Subsection (3) does not apply to –

(a) a claim for repair of a defect in a motor vehicle under the Motor Dealers and Chattel Auctioneers Act 2014, schedule 1, section 13; or

(b) a tenancy matter; or

Note –

See the Residential Tenancies and Rooming Accommodation Act 2008, section 516 for tenancy matters involving amounts greater than the prescribed amount.

(c) a claim that is the subject of a dispute under the Building Act 1975, chapter 8, part 2A.

[10] The “prescribed amount” referred to in section 13(3) is $25,000.[4]
[11] Directly relevant for present purposes is section 13(4)(b) which expressly provides that the monetary limitation imposed on QCAT’s minor civil dispute jurisdiction by reference to the “prescribed amount” does not apply to a tenancy matter.
[12] Section 13(4)(b) also expressly calls up consideration of section 516 of the RTRAA.[5] Recalling that, for the purposes of the QCAT Act, a “tenancy matter” is one in which a person may, under the RTRAA, apply to QCAT for a decision, applications to QCAT under the RTRAA are dealt with in Chapter 6 Part 2 of the RTRAA. It is unnecessary for present purposes to traverse the broad range of applications which may be made to the Tribunal under the RTRAA, but is sufficient to note that a tenant under a residential tenancy agreement may apply to QCAT for an order about a breach of a term of a residential tenancy agreement under section 419. Section 420 then nominates a range of orders which the Tribunal is empowered to make on an application about a breach of a residential tenancy agreement, including an order for the payment of money and an order for compensation.
[13] Section 516 of the RTRAA provides:

“(1) This section applies to an application if –

(a) a provision of this Act provides that the application may be made to a tribunal; and

(b) the application seeks the payment of an amount (the application amount) greater than the prescribed amount under the QCAT Act.

(2) In a provision of this Act about the application, a reference to a tribunal is taken to be a reference to a court with jurisdiction for the application amount.

(3) A provision of this Act about the application applies with necessary changes as if the tribunal were the court.”

[14] Section 516(1)(b), clearly contemplates an application being made to the Tribunal which seeks payment of an amount greater than “the prescribed amount under the QCAT Act”, i.e. $25,000.
[15] The following subsections of section 516 then facilitate the conferral of jurisdiction on QCAT to make orders as if QCAT were a court which otherwise has jurisdiction with respect to the amount sought in the respective application. In other words, section 516 confirms QCAT’s jurisdictional capacity to make orders under the RTRAA for monetary amounts which would otherwise exceed the “prescribed amount” limit applicable to minor civil disputes.
[16] Lest it be considered that there is any ambiguity about the interpretation of section 516, regard may be had to the Explanatory Note to the Residential Tenancies and Rooming Accommodation Bill 2008 which relevantly stated:[6]

“Clause 516 provides that, where an application to a tribunal is for an amount greater than that allowed under the Small Claims Tribunals Act 1973, the relevant tribunal is to be considered the Court with jurisdiction for the application amount.”

[17] After the passing of the RTRAA, the small claims jurisdiction was effectively folded into QCAT’s jurisdiction. In 2009, with the establishment of QCAT, the definition of “tribunal” in the RTRAA was amended so as to refer to QCAT rather than the Small Claims Tribunal.[7]
[18] Accordingly, I would hold that QCAT has jurisdiction in a “tenancy matter” (as that term is defined in the QCAT Act) where the amount claimed exceeds the “prescribed amount” of $25,000.
[19] It follows that the decision to transfer the application to the Magistrates Court was made in error and the appeal should be allowed.
[20] There will be the following orders:

1. The applicants have leave to appeal.

2. The appeal is allowed.

3. The decision of 11 April 2017 transferring the matter to the Magistrates Court at Southport for further hearing is set aside.

4. The matter is otherwise remitted to the Tribunal at Southport for further hearing.


[1] As that term is defined in the Queensland Civil and Administrative Tribunal Act 2009.

[2] [2012] QCAT 579.

[3] [2017] QCAT 306.

[4] See definition of “prescribed amount” in QCAT Act, Schedule 3.

[5] The “note” in section 13(4)(b) is part of the QCAT Act – Acts Interpretation Act 1954, section 14(4).

[6] At pages 78 – 79.

[7] Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009, section 94.

 

sourced from www.austlii.edi.au May 14 2018

Workplace laws information for Real Estate Agencies

For member offices of Real Estate Excellence

Licensees and business owners are aware of the myriad of laws regarding harassment, bullying, discrimination and other important matters that must be addressed in the workplace. Policies and training must be in place.

Updated and new material is now at member online for your immediate use. The information includes templates for your final edit, fact sheets and guides to assist in  compliance and good business practice. Login to member online and visit the licensee folder (as per below), and then the workplace laws general information folder.

The information below can be found in folder 28 for NSW Real Estate Excellence member offices (part of the PME system), plus in folder 32 for QLD PME system member offices.

Licensee

Folder

Template