PAMDA to POA – The clear and the unclear

by John Mahoney of Mahoneys in Brisbane

The Property Occupations Act, is set to commence on 1 December 2014. The government has released the regulations and the new forms to replace the PAMDA forms such as the Form 20a that we have come to know over the past 13 or so years.

The essential elements of POA are: 

  • Deregulation of commission – agents will be free to negotiate commission without any maximum.
  • Letting appointments assignable – No longer will letting appointments have to be ticked and initialed to be assignable. The quid pro quo though is that all appointments under the new Act will be subject to a maximum 30 day notice of termination.
  • Residential requirement removed –it will no longer be a requirement for a letting agent’s licence that the agent reside onsite. Managers should though be aware that their letting agreement with the body corporate may well impose a requirement for the manager to reside onsite.
  • Body corporate approval not required – aimed at cutting red tape, it will no longer be a requirement that a resident letting agent provide evidence of body corporate approval when applying for a licence. Likewise a licence will no longer apply to a specific building so can relate to a multitude of buildings without the need for the buildings to share a common boundary.
  • Corporate licensees do not need a licensed director – under PAMDA a company cannot hold a licence unless a director of the company holds a licence. Under the new Act it will be sufficient if a “person in charge” holds the licence.

The assignability provision, and POA generally, pose a number of questions about letting appointments the most important of which, and the answers as best we can determine from the Act, are: 

  1. Are new letting appointments required when POA starts?

The transitional provisions of POA state that an existing letting appointment by a resident letting agent remains in place after POA commences and continues in force as though it was an appointment as a letting agent under POA.

So there is no need to seek new letting appointments from all your owners when POA commences. Your existing forms 20a will continue in force. 

  1. Does the 30 day termination provision of POA apply to PAMDA forms 20a in place when POA starts?

The transitional provisions state that a valid existing form 20a continued in force under POA continues according to its existing terms “with necessary changes” and ends on the day it ends according to its terms.

Interpreting “with necessary changes” is difficult. We consider that only those parts of POA that are not inconsistent with a form 20a will apply to the form 20a after POA commences and that therefore the 30 day termination of POA will not apply to your forms 20a.    

  1. Do all existing forms 20a appointments become assignable under POA?

Based on our interpretation of the transitional provisions of POA we are of the view that a form 20a that is not expressed to be assignable, will not be assignable once POA commences. On the sale of the management rights, such non-assignable appointments will need to be dealt with just as they are now – get the owner’s consent to assignment or get a new appointment in the new manager’s

Mahoneys are a leading independent law firm offering a wide range of property, commercial, corporate, litigation and dispute resolution legal services. For more information about this article, please contact our Management Rights team directly - www.mahoneylawyers.com.au 

 



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