by Innojustice Lawyers | Property Law
This article outlines the rights of property owners and the responsibilities of property agents, with a focus on the agent’s duty of care. Please note, the list provided is not exhaustive.
Understanding the Owner-Agent Relationship
To begin with, a formal agency agreement governs the relationship between a property owner and their agent. This agreement defines legal and fiduciary duties. When agents disregard lawful, written instructions, owners may suffer financial losses or face disruptions in property management. Fortunately, Australian law offers clear avenues for resolution.
Key Duties of Property Agents
Agents serve as fiduciaries to property owners, which imposes strict standards of conduct. Specifically, they must:
- Act in the Owner’s Best Interests
Agents must always prioritise the owner’s interests. - Follow Lawful Instructions
Owners expect agents to carry out all lawful, reasonable, and clear instructions. - Exercise Skill, Care, and Diligence
Legislation such as the Property Occupations Act 2014 (Qld) requires agents to perform their duties competently and professionally.
Consequently, violating these duties undermines the agency agreement and may trigger legal consequences.
Common Types of Breaches
In practice, agents often breach their duties in the following ways:
- Ignoring Instructions
For example, some agents fail to initiate rent reviews, arrange repairs, or issue tenant notices. - Acting Without Authorisation
In some cases, agents commit owners to expenses or agreements without written consent. - Providing Misleading Information
Misrepresentation or failure to disclose key details, such as tenant arrears, can cause financial harm.
Steps for Resolution
When agents fail to follow instructions, property owners can take the following actions:
- Send Formal Communication
First, owners should document the breach in writing and reference the specific instruction. Reviewing the agency agreement helps confirm the agent’s obligations. - File a Complaint with Regulatory Bodies
In Queensland, owners can lodge complaints with the Office of Fair Trading (OFT). The OFT may investigate, mediate, or initiate disciplinary action. Additionally, owners may seek compensation through the OFT Claim Fund. - Initiate Tribunal Proceedings
If resolution fails, owners can escalate the matter to the Queensland Civil and Administrative Tribunal (QCAT). The tribunal can award damages, order specific performance, or terminate the agency agreement.
Preventing Future Issues
To reduce the risk of agent non-compliance, owners should consider the following strategies:
- Documenting Instructions
Written communication (e.g., emails) creates a verifiable record. - Establishing Clear Protocols
Regular updates and reporting schedules promote accountability. - Conducting Due Diligence
Before hiring, owners should verify the agent’s licence and reputation. - Maintaining Organised Records
Systematic filing of correspondence and documents supports future claims.
Case Law Example
Case: Chief Executive, Department of Justice & Attorney-General v Jones & Anor [2020] QCAT 10
In this case, QCAT held an agent accountable for multiple breaches, including poor record-keeping and financial mismanagement. Although the case did not involve a single ignored instruction, it demonstrated the tribunal’s authority to discipline agents under the Property Occupations Act 2014 (Qld) and the Agents Financial Administration Act 2014 (Qld).
Summary:
The agent operated without a valid licence and failed to maintain trust account records. Following a complaint from Mr. Grant Kwai, the OFT investigated and uncovered numerous violations. As a result, the tribunal found the agent had not met legal standards and imposed disciplinary measures, reinforcing that even non-fraudulent misconduct warrants regulatory action.
How Innojustice Lawyers Could Assist
At Innojustice Lawyers, we assist property owners in understanding their legal standing in disputes with agents—often helping to avoid litigation when a reasonable resolution is possible. Depending on the circumstances, litigation may not be necessary if there is a case to answer and all parties are open to an amicable solution.
We offer support with:
- Reviewing your contract with the agent
- Advising whether a breach has occurred
- Providing a reasonable estimate of potential outcomes
- Assisting with presenting your case to QCAT (if needed), helping you manage costs more efficiently
For tailored advice, contact Innojustice Lawyers at [email protected].
Disclaimer
This article offers general information and does not constitute legal advice. External links (if any) are provided to support understanding.