Considerations to make before signing an Agency Agreement

Mar 7, 2022

By Property Law Team

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When selling your property, one of the most important decisions you need to make is choosing the right agent to market the property on your behalf.  It is imperative that you feel comfortable and trust your agent as he/she will be selling what is most likely your most valuable asset.

Once a choice has been made the next thing you should consider are the terms of the agency agreement. Here are some things to think about before you sign:

Appointing an Agent

Agency agreements are often exclusive, meaning you are engaging the agent named in the agreement exclusively for a certain period. Exclusive agency agreements entitle the named agent to be paid their commission, even if the purchaser is introduced to the property by you or someone else.

If the agency agreement is non-exclusive,  it will allow you to appoint more than one agent at any one time and the agent who actually sells the property will be entitled to a commission.

Termination

Exclusive agency agreements will provide for a set exclusive period, which will then continue as a non-exclusive agreement until the property is sold, or the agreement is terminated.  Normally, the exclusive period is 90 days.

If the exclusive agency period exceeds 90 days and the property is not sold, you can terminate the agreement by providing 30 days written notice to the agent at the end of the 90 days. If the agreement is terminated, the agent must stop marketing the property, but can still claim a commission if they introduced the purchaser who ultimately buys the property.

Enforceability

The Property and Stock Agents Act 2002 provides that for an agency agreement to be enforceable it must:

  1. Be in writing;
  2. Be signed by you and the agent;
  3. Contain specific warnings and notices contained in the regulations; and
  4. Be served by the agent on you within 48 hours after the agreement was signed.

If the agency agreement has not met one or some of the above requirements, you may still be liable to pay an agent’s commission upon the sale of your property if a court or tribunal finds:

  1. The failure to comply with the regulations is minor;
  2. You haven’t suffered any loss; and
  3. Failure to make the order would be unjust.

You should be aware that an agent cannot commence marketing the property until it has been provided with a legally valid Contract for Sale of Land, which must be prepared by a lawyer or licensed conveyancer.

Important Disclaimer: The content of this article is general in nature and for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.

By Yolanda Regueira

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