Selling with out an agent in Victoria

All sellers, or estate agents acting on their behalf, must make a 'due diligence checklist' available to prospective buyers at open for inspections. The checklist aims to help buyers indentify whether any issues that may affect the property and impose restrictions or obligations on them, if they buy it

Do I have to use an agent to sell my property?

Most sales are conducted through an estate agent or agent’s representative, but you can choose to sell without their assistance.

What sellers can expect from an agent

Agents are obliged to act responsibly and ethically when dealing with both buyers and sellers. Strict laws govern their licensing, authorisation and conduct.

Anyone in the business of buying, selling or leasing property on behalf of another person must either:

• hold an estate agent’s licence 
• be employed and authorised by a licensed estate agent as an agent’s representative. 

An agent’s representative must have written authority to act on behalf of their employer. The licensed estate agent is responsible for the employee’s professional conduct.

Only deal with a licensed estate agent or an authorised agent’s representative. You can check whether a person is a licensed estate agent or an agent’s representative by searching the Victorian Business Licensing Authority’s public register of estate agents.

If you list your property with an agent, you are engaging the agent to help sell your property. The agent will charge a fee for this service, usually in the form of a commission.

The agent is bound by professional conduct regulations to:

• always act in your best interests 
• follow your lawful instructions 
• engage in good estate agency practice. 

Estate agents must:

• advise a seller that all commissions and other outgoings are negotiable 
• at an auction, disclose any bid made by the seller to advance the price of the property 
• communicate to you all verbal and written offers from prospective buyers, unless you instruct otherwise in writing 
• state an estimated selling price in the sales authority that does not misrepresent the price at which the agent genuinely believes the property may be sold. 

You can expect the agent to:

• advise on a method of sale 
• provide a marketing plan, and advertise and market the property 
• advertise an up-to-date price for the property reflecting rejected offers. It is not compulsory for a price to be advertised 
• organise and attend open house and other inspections 
• attract prospective buyers 
• organise and conduct an auction (if you choose this method of sale) 
• arrange the signing of the contract 
• collect and hold the full deposit. 

Estate agents must not:

• mislead or deceive any party 
• make or accept dummy bids 
• at an auction, accept any late bids after the fall of the hammer 
• keep any rebates or discounts they receive for advertising or other services they buy on your behalf. They must immediately pass these on to you 
• charge you more for advertising or other outgoings than you authorised in writing or they paid for the service. 

Choosing an estate agent

Start by:

• checking the internet and local papers to find agencies, the services they offer and sale price information 
• speaking to friends about their experiences 
• reading promotional material from a range of agencies including local agents, who are more likely to be familiar with the local market 
• talking to several agents and arranging to meet them. 

When you meet with agents, discuss:

• their knowledge of the market in the area 
• comparable local sales 
• their marketing plan for the property 
• their estimated selling price 
• their commission, or how much they will charge 
• the cost of advertising and other outgoings. 

Ask the agent to provide quotes for their services in writing.

Do not choose an agent just because they give you the highest estimated selling price.

Get several agents to appraise your property and give you an estimated selling price. Ask them to justify their price by showing you similar properties sold at similar prices in the area.

Take into account the agent’s overall marketing plan when making your decision.

Do not sign anything, including a sales authority, unless you are prepared to engage the services of that agent. You do not have a cooling-off period (time to change your mind) after signing a sales authority.

Estimated selling price

This is the price the agent estimates your property will attract, based on their experience and knowledge of the market.

The estimated selling price:

• is not a valuation or a guaranteed selling price 
• does not have to be the same as your reserve price 
• must be recorded in the sales authority as either a single amount or a price range. 
• If recorded as a range, the difference between the top and the bottom figures must not be more than 10 per cent of the bottom figure. For example, a quoted range of $400,000 to $440,000 is $400,000 plus 10 per cent. 

Price misrepresentation

The practice of deliberately overstating the estimated selling price to get your business is known as overquoting.

It is illegal for an agent to:

• mislead you about the estimated selling price of your property 
• advertise or advise a prospective buyer of a price that is less than your asking price, or if there is no such price, the agent’s estimated selling price. This is known as underquoting. 

Commissions and commission sharing

Commissions

Most agents are paid by commission on completion of the sale. An agent cannot claim a commission unless you sign a sales authority.

An agent must advise you that the commission is negotiable, before you sign the sales authority.

There will be costs associated with marketing and advertising a property, on top of the agent’s commission.

The commission:

• is not a set amount. You can negotiate the amount with the agent 
• can be paid as either a fixed fee or a percentage of the sale price, or as a combination 
• must, when agreed, be recorded on the sales authority. If you agree to a percentage, the commission must also be shown in dollar terms on the sales authority. The dollar amount is calculated on an approximate sale price to give you an indication of the amount of commission you will owe. 

If the agent is using a commission scale, make sure you are clear about how much you may have to pay. For example:

The agent’s commission may be 3.3 per cent (including GST) on a scale up to $500,000 and 3.85 per cent (including GST) if the sale price is more than $500,000.

You might interpret this as only the amount above $500,000 having a 3.85 per cent commission. However, if the sale price exceeds $500,000, the agent may interpret this as the entire sale price having a 3.85 per cent commission.

Check the dollar amount stated in the sales authority and, if you are still unsure about how the commission is to be calculated, ask your agent to provide examples based on various possible sale prices.

At settlement, your agent will deduct their commission from the deposit, pay you the balance and give you an account for the sale. If you dispute the amount of commission your agent has charged because it is excessive, you can:

• make a complaint to Consumer Affairs Victoria. You must make the complaint within 28 days of receiving the agent's account 
• apply to the Victorian Civil and Administrative Tribunal for a decision on the dispute. 

Commission sharing

An agent must advise you in writing if they will be sharing the commission with someone outside their own agency, such as a legal practitioner, conveyancer or another agent.

They must provide a written list of the people who will share the commission, before you sign the sales authority.

If a commission-sharing arrangement is entered into after the sales authority has been signed, the agent must:

• update the sales authority with the relevant details 
• ask you to approve the arrangement, and sign and date the amendments. 

Marketing and advertising

Ask for a comprehensive, written marketing plan. This:

• will be based on the agent’s experience, the nature of the property and your preferences 
• should include advertising methods and costs, and the price or range at which the property will be advertised. 

Even if the property fails to sell, you will have to pay for marketing and advertising costs that you have authorised. You can avoid this expense by negotiating a ‘no sale, no fee’ arrangement in the sales authority, but make sure there are no hidden charges.

To be clear what you are paying for, ask the agent to provide a written schedule outlining advertising and other outgoings. All expenses are negotiable and must be recorded in the sales authority.

Rebates

Agents can be offered significant discounts or rebates by newspapers for buying bulk advertising.

It is illegal for agents to keep advertising or any other rebate, even if you agree.

• An agent must pass on to you any rebate or discount they receive, such as for advertising. 
• If benefits are received in a form other than money, such as gifts, then the monetary value of the gift must be passed on to you. If the exact price is not known, then the agent must estimate the value. 

The amount of any rebates or benefits must be stated in the sales authority.

Sales authority

When you choose the agent, you will be asked to sign a ‘sales authority’ appointing that agent. This is a legally binding contract, which sets out all details of your agreement with the agent, including:

• whether the property is to be sold by private sale or auction and, if by auction, the auction date 
• the negotiated commission and marketing expenses with GST set out separately 
• the circumstances under which commission is payable. This will depend upon the type of authority signed, whether it is an ‘exclusive’ or ‘general’ authority 
• the agent’s estimation of the likely selling price 
• the authority period or amount of time given to the agency to sell the property. 

The authority must also include two statements:

• a rebate statement, completed if the agent is to receive any rebates from the advertising expenses 
• a complaints statement, which explains that you can lodge a complaint at Consumer Affairs Victoria if there is a dispute over commission or outgoings. 

If the agency is to share commission for the sale, either:

• the sales authority will include a commission-sharing statement 
• you may be given a separate statement before signing the authority, informing of commission-sharing arrangements. 

If you want to make any changes after the authority has been signed, they must be made in writing on all copies of the sales authority and initialled by both you and the agent.

Authority types

Exclusive authority:

This is the most common type of sales authority. It means you appoint one agency to market your property.

The agency is entitled to commission when the property is sold, and can claim commission even if you sell your property without their help.

You should not sign more than one exclusive authority, as you may have to pay more than one commission in certain circumstances.

General authority:

This is less common. You list with more than one agency but only pay commission to the agency that sells your property.

What can be negotiated?

You can negotiate many aspects of the sales authority with the agent, including:

• the method of sale: 

There are two main ways of selling a property: by auction or private sale. Both methods have advantages and disadvantages. An agent will be able to recommend the best method of sale for your particular circumstances

• the authority period: 

The period of time the authority is in force with the agent. Once you sign the authority, you will not be able to cancel it during this period unless the agent agrees. There is no cooling-off period with an authority. We recommend your authority period does not exceed 60 days.

If no period is stated on an exclusive authority, the default period for sale by auction is 30 days after the date of the auction. For a private sale, the default period is 60 days after the sales authority was signed.

If the authority period expires and the property has not been sold, you should notify the agent in writing if their services are no longer required

• the commission: 

The commission or agent’s fee is completely negotiable. You may wish to negotiate a ‘no sale, no fee’ contract, meaning you will not have to pay any commission or outgoings unless the agent completes the sale of the property. Check that there are no hidden charges.

• advertising and other outgoings: 

The amount spent on marketing and advertising is negotiable.

• other terms and conditions: 

Make sure you understand and agree upon all terms and conditions before signing. These conditions are negotiable. Any changes (deletions, amendments or additions) must be made on the authority and initialled by both parties.

All verbal agreements should be confirmed in writing on the authority and signed by both parties. If you have specific instructions for the agency, attach them to the authority.

Unfair contract terms

The sales authority is a legally binding consumer contract.

Victoria has laws to prevent unfair terms in consumer contracts. A term is unfair if it:

• causes a significant imbalance in the rights and obligations of both parties to the detriment of the consumer 
• was inserted in the contract intentionally. 

Agents must make sure their sales authorities comply with the law.

If you believe there is an unfair term in a sales authority, contact the Estate Agents Resolution Service at Consumer Affairs Victoria on 1300 73 70 30.

Selling property without an agent

Selling property without an agent involves:

• deciding the sale price or range. Consider engaging a qualified valuer to assess the property 
• advertising the property 
• negotiating the price 
• obtaining a deposit 
• providing the contract of sale with the Section 32 statement attached and arranging for it to be signed 
• handling settlement. 

You will need to engage a conveyancer or legal practitioner to prepare a Section 32 statement (vendor's statement) and contract of sale.

More information can be found here