Agency agreements in real estate
What is an agency agreement in real estate and why is it important to have one? How does it protect your agency, your clients, and the professional relationship you will develop? And what components of an agency agreement are the most important to pay attention to when you are on the cusp of providing your real estate services to a client?
Let’s take a look at what an agency agreement in real estate is, and why it is so important, and legally compulsory, to have one between your agents and your clients.
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What is an Agency Agreement in Real Estate?
An agency agreement in real estate is a legally binding contract between a client (or vendor) and a real estate agent. The contract includes several important details that outline the expectations, responsibilities, parties involved, and payment terms of the agent working for the client. Whether you are a sales agent, buyer’s agent, or property manager, you need to arrange an agency agreement for yourself and your client to sign before you can begin working for them.
Some of the details that should be made clear in an agency agreement include:
- The details of the real estate agent
- The details of the client
- The type of agency agreement
- The property’s estimated sales price or rental costs
- Agent’s commission and fees
- What sale method would be used if selling a property
- The period of settlement
- The duration of the agreement
- And more
Each state in Australia has their own individual laws around agency agreements. However, each state includes agency agreements that cover the following three, or variations of, types of contracts. These three different types of agency agreements are as follows:
- Open Listing Agreement – when an agent is hired to sell a property, but the client retains all rights to appoint a different agent on similar terms without incurring any extra charges, penalties, or fees.
- Sole Agency Agreement – provides a single agent with full and exclusive rights to sell a property, but provides the client the right to find their own buyer if necessary.
- Exclusive Agency Agreement – similar to Sole Agency Agreement, but the agent retains full rights to selling a home and will still receive commission even if another agent or the client finds the buyer.
These are the basic principles that underpin each type of agency agreement in real estate. However, it’s important to note that each contract is negotiable between an agent and client, and terms surrounding commission, fees, and duration can be altered between the parties before anyone signs.
Why is an Agency Agreement Important?
An agency agreement in real estate provides legal cover to both the agent and client during a professional partnership. The contract clearly outlines the terms of the deal and what can be expected from all parties involved. It ensures that the agent can be held accountable to their services and responsibilities, while the client must keep to the payment terms they agreed to.
Without an agency agreement, both parties won’t have the legal protection to fall back on if something were to go wrong. Once a contract has been signed, the agent will then be free to start marketing the property and gathering interest from prospective buyers. The sooner a contract can be negotiated and signed, the sooner agents have permission to begin the sales process.
How Does an Agency Agreement Work?
How does an agency agreement work exactly? The document will first have to be negotiated by both the agent and the client to ensure all terms are mutually agreed upon before signing. After the contract has been signed, there is typically a 24-hour cooling-off period where either party may decide to change their mind. Once this period has ended, the agency agreement becomes legally binding.
One of the terms that will be agreed on before the signing is the duration of the contract. This is the given time frame that a sales agent has to sell the client’s property. If the agent sells the property before the outlined duration ends, then the agency agreement will be considered completed. If the outlined duration ends before the agent is able to sell the property, then it is up to the client to decide whether they would like to extend that agreement with the existing agent, or if they would like to find a new professional to take over the sales process.
If the agency agreement is for a property manager, then this duration period will be much longer and include different payment and commission terms. All types of agency agreements may include an early termination clause if the client is dissatisfied with the agent’s services, however including this will have to be negotiated prior to signing.
It’s important to note that every state and territory in Australia provides slightly different terms and definitions for when an agency agreement begins and ends. These definitions are also continually changing over time, so it is essential that real estate agencies and their clients stay on top of the changing legislation.
3 Key Components of an Agency Agreement
There are many different components that make up an agency agreement in real estate. Each is important for real estate agencies to understand the full range of responsibilities they must uphold when working to sell or manage a client’s property.
These three key components of an agency agreement are essential to outlining the terms of the contract and should be carefully considered and, when necessary, negotiated between the parties.
Identification of Parties Involves
The two main parties in an agency agreement in real estate are the client and the agent. The contract should clearly state the client’s name, address, contact information, whether or not they are registered for GST, and whether they have an ABN or ACN.
The agent will have to include all the relevant contact, licensing, and ABN information for their real estate agency, as well as the specific service they will be providing for that agreement, sales agent, property management, or auctioneering.
Scope of the Agent’s Authority and Duties
The scope of the agent’s authority and duties will be outlined by what type of agency agreement is decided on. If the contract is for a Sole or Exclusive Agent, then the agent will have exclusive rights to the sale of a property within the duration period of that agreement. If it is an Open Listing agreement, then the client will maintain the right to work with other agents throughout the sales process.
Duration of Agreement and Termination Clauses
There are two types of a duration period that can be agreed upon in an agency agreement in real estate.
- Single appointment – has a set start and end date and is typically used for real estate agents who have been hired to sell a property.
- Continuous appointment – only has a start date and is typically used for real estate agents hired as property managers.
An Open Listing agreement doesn’t need a termination clause as the client maintains the right to end the contract at any time in writing. For Sole or Exclusive Agent agreements, both parties will have to negotiate if they want a termination clause. If a termination clause is included, then its conditions will need to be clearly outlined—including any penalty fees owed to the agent.
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