NSW buyers’ agents and conflicts of interest: not as portrayed by the ABC, much better than the USA but still needing urgent reform
November 30th, 2023
History
When we started as a Sydney buyers’ agent 17 years ago, the number of such agencies barely occupied one Google page.
Today, that number equates to the number of years we’ve been in business.
Hardly surprising therefore that we recently bought for a client where the seller was represented by a major inner city agency for which 30% of all sales were now via buyers’ agents.
Similarly, one of our colleagues is featured in a glitzy (un)reality TV series; the first season of which we reviewed in 2021.
The positive aspect of this exponential rise in popularity of Sydney buyers’ agents is the value Sydney property buyers see in being represented.
The negative aspects are the low barriers to entry and a flawed regulatory regime especially in relation to conflicts of interest.
In a Four Corners episode aired on 27 March 2023 followed by an article the next day, as we discuss later, the ABC sensationalised those conflicts (the Four Corners program).
With recent USA litigation having exposed in multi billion dollar terms that avoiding conflicts of interest is the bedrock of buyers’ agency, we thought it was time for an article focusing on the flawed regime in NSW while cutting through Aunty’s unfair and cherry picked noise.
What’s the Regime?
In addition to the Consumer Law and the general law of agency, that regime (the Regime) comprises the Property and Stock Agents Act 2002 No 66 (the Act) and the Property and Stock Agents Regulation 2022 (the Regulation).
Why is the Regime flawed?
The heart of the answer lies in sections 3 and 3A of the Act (the sections) which provide:
“3 real estate transaction means the purchase, sale, exchange, lease, assignment or other disposal of land, whether or not an auction is involved.
3A Real estate agent functions
- In this Act, real estate agent functions means any of the following functions—
(c) real estate sale or leasing functions…
(2) For the purposes of this Act—…
real estate sale or leasing functions means—…
(b) acting as agent for a real estate transaction, or
(c) acting as agent for inducing or attempting to induce or negotiating with a view to inducing any person to enter into, or to make or accept an offer to enter into, a real estate transaction or a contract for a real estate transaction, or
(d) acting as agent for the introduction, or arranging for the introduction, of a prospective purchaser…of land to another licensed agent or to the owner, or the agent of the owner, of land…
Note—
This definition is not limited to the selling of land and extends to an agent acting on behalf of the buyer of land (a buyer’s agent)”.
Apart from section 47 of the Act discussed later, most revealing is that the above “Note” contains the only other reference in the whole of the Act to a “buyers’ agent.”
The Regime is flawed because the sections define real estate agents by their functions and not their roles.
Rooted in a bygone era when there were only sellers’ and no buyers’ agents (hence the tokenistic “Note”), the Regime’s ‘one size fits all’ approach ignores the fundamental differences between the roles performed by sellers’ agents and the roles performed by buyers’ agents in the modern local marketplace.
As academic and social commentator on ‘differences’, Sumera Saaed explains:
“Roles answer the “what” and “why” questions, defining the overarching purpose of an entity…Functions, in contrast, address the “how” question, specifying …actions…needed to achieve the role’s objectives.”
Buyers’ agents in NSW typically don’t act for sellers nor do they chase listings, have ‘properties on their books’ or style, photograph and market properties, conduct opens for inspection, hold auctions and usually don’t operate trust accounts.
Similarly, while some sellers’ agents occasionally act for buyers, those agents will not have an extensive network of independent contacts from which to find high quality properties off market to expand buyer choice as we have done consistently from our inception including this year in the most supply constricted Sydney property market on record.
They also wouldn’t for example do as we do and analyse regulatory risks, micro market demographic trends, interview neighbours and local stakeholders, research the seller as well as nearby planning approvals and applicable controls, infrastructure projects, inundation, climate change and contamination risks, low cost housing and flight paths nor would they be likely to have access to multiple paid subscription services used to undertake other risk minimising due diligence.
This difference between the two roles and their respective skill sets as well as their respective cultures no doubt explains why a major international sellers’ agent brand and a major local sellers’ agent brand both failed some years ago to establish buyers’ agency arms in Australia.
An alternative regime which recognises the different roles
For over four years until September 2017, the Buyers’ Agents Chapter of the Real Estate Institute of NSW tried to persuade the then NSW Government to amend the legislation to reflect modern reality.
A submission drafted largely by our Principal as a then member of the Chapter, recommended that to alleviate consumer confusion and conflicts of interest issues, the legislation should provide:
“buyers’ agent means:
a real estate agent…who:
- is remunerated solely by buyers of land;
(b) acts only for buyers of land; and
(c) never acts for sellers of land.
(5) The following wording be inserted…[in the then] Act:
“A real estate agent…who is not a buyers’ agent may act for buyers of land provided that such a real estate agent…
(a) does not in any way represent or hold themselves out as a “buyers’ agent” or any derivative of “buyers’ agent” ;
(b) has first completed and attained competency in the unit of competency known as ‘Act as a Buyers’ Agent’ ; and
(c) has undertaken at least two years’ practical experience under the supervision of a buyers’ agent”…
Although adopted by the Chapter, that recommendation was ultimately rejected by the powers that were and the recommended unit of competency ‘Act as a Buyers’ Agent’ never saw the light of day.
No continuing professional development (CPD)
This failure to distinguish between the roles of sellers’ and buyers’ agents has resulted in CPD courses that are irrelevant to buyers’ agents and to the conflicts of interest that must be avoided.
The REINSW is the major service provider of CPD courses for NSW real estate agents.
Its 2023/2024 course for Class 1 Licensees contained not one buyers’ agent module.
This meant that Licensees like our Principal who attended that expensive course and technically fulfilled all statutory requirements, actually received no buyers’ agent CPD via that route and certainly none in relation to relevant conflicts of interest.
Happily for Curtis Associates’ clients, our Principal is both a senior commercial lawyer (for whom ethics, professionalism and avoiding any conflicts of interest is in the DNA), as well as a Certified Property Practitioner/Associate Member of the Australian Property Institute who also participates in an array of CPD activities offered by other bodies.
Why it matters
A statutory regime that does not reflect roles in reality inevitably will be and is ignored both by the regulated and the regulator; in this case, NSW Fair Trading.
In addition to some breaches attracting no penalties, others involve miniscule penalties likely to be seen just as a cost of doing business if caught: in the table below, one penalty unit currently = $110.
So, what are the Regime’s prohibitions regarding buyers’ agent’s conflicts of interest?
As they are scattered unhelpfully throughout the Act and the Regulation, we have collected what few of them that exist in this table to which we have added comments.
| Section of the Act or the Regulation (latter italicised) | Text | Our comment |
| 47 | 47 Duty of disclosure to client and prospective buyer of land (1) A buyer’s or seller’s agent acting on the sale or purchase of land must disclose the following to the person for whom the agent is acting (the client) and (in addition, in the case of the seller’s agent) any prospective buyer of the land – (a) any relationship, and the nature of the relationship (whether personal or commercial), the agent has with anyone to whom the agent refers the client or a prospective buyer for professional services associated with the sale or purchase, (b) whether the agent derives or expects to derive any consideration, whether monetary or otherwise, from a person to whom the agent has referred the client or a prospective buyer and, if so, the amount or value of the consideration, (c) the amount, value or nature of any benefit of which the agent is aware that a person to whom the agent has referred the client or a prospective buyer has received, receives, or expects to receive in connection with the sale, or for promoting the sale, or for providing a service in connection with the sale, of the land. Note— The following are examples of relationships for the purposes of subsection (1) (a)— (a) a family relationship, (b) a business relationship, other than a casual business relationship, (c) a fiduciary relationship, (c) a relationship in which 1 person is accustomed, or obliged, to act in accordance with the directions, instructions, or wishes of the other. The following are examples for the purposes of subsection (1) (c) of persons who may receive a benefit— (a) seller, (b) (b) finance broker, (c) (c) financial adviser, (d) (d) financier, (d) (e) property valuer, (e) (f) Australian legal practitioner, (g) real estate agent. Maximum penalty—200 penalty units [$22,000] (3) In this section… buyer’s agent means (a) a real estate agent acting for a buyer of land…
| In contrast to the rest of the Regime which is open to wide interpretation, this section and section 12 of Schedule 1 of the Regulation are the only provisions prescribing clearly and in detail, some of the agent’s obligations. But it’s still ambiguous. First, how do those two sections interact with each other? Second, the inclusion of a real estate agent as a person who may receive a benefit suggests that a buyer’s agent referred to a client by a seller’s agent is a “professional service.” If so, that contradicts section 8 of Schedule 2 Part 1 Division 1 reproduced below which forbids such referral fees. Or does that contradiction necessarily imply that a real estate agent in this section excludes a buyers’ agent? More important, this and section 12(4) of Schedule 1 of the Regulation are the only two provisions requiring disclosure. Does this mean that all other conflicts cannot be cured by disclosure? |
| 48 | Duty not to act for both buyer and seller of land (1) A licensee must not act in his or her capacity as licensee on behalf of both the buyer and the seller of land at the same time… Maximum penalty— (a) 200 penalty units in the case of a corporation [$22,000], or (b) 100 penalty units in any other case [$11,000]. | An unambiguous obligation with a miniscule maximum penalty if breached. Increasing that maximum say ten fold and policing breaches would be a more effective deterrent |
| 53F | Licensees…not to receive certain gifts or benefits (1) The holder of a licence…must not request or accept a gift or other benefit for the holder or for some other person in circumstances that may reasonably be considered to give rise to a conflict of interest. Maximum penalty—20 penalty units…[$2,200] (2) (2) This section does not apply to the following— (3) (a) (a) anything provided by the employer of the holder, (b) (c) (b) anything provided in accordance with the terms of an agency agreement or from a client as a gift in gratitude for services provided under an agency agreement, (d) (b) (c) anything of a kind prescribed by the regulations for the purposes of this section, (c) (d) (d) anything that has a value that is less than an amount prescribed by the regulations for the purposes of this section [which is $60] (4)
| This is open to wide and subjective interpretation. For example, would accepting a $61 bottle of champagne from a selling agent following a successful transaction with a buyers’ agent be considered to give rise to a conflict of interest per se and given that the transaction has been concluded? Why does this section not follow section 47 and include examples of prohibited conduct including some developers allegedly offering monetary incentives to buyers’ agents to promote developer product to the buyers’ agent’s clients (thankfully, if such offers do occur, none has been made to us)? |
| 3 of Part 1 | In this Regulation—… buyer’s agent means— (a) a real estate agent acting for a buyer, or a prospective buyer, of land… | |
| 2 of Schedule 1 | Fiduciary obligations An agent must comply with the fiduciary obligations arising as an agent.
| This presupposes that buyers’ agents (a) even know what a fiduciary obligation is and (b) that such obligations have a settled legal meaning. As acerbic Mosman selling agent David Murphy said in a September 2023 newsletter: “In more recent times the influx of newbies have decided to become buyers’ agents. They are popping up everywhere (I will press pause here and say that there are some excellent buyers’ agents, I have personally used one and was very satisfied with the arrangement). But… It’s astounding to me how many people have abandoned their dreams of being personal trainers, yoga instructors and/or a life coach to become a buyers’ agent. It would seem if you have a car and a watch you are fit to represent. How is it that someone in their 20’s that has never bought a property can advise someone on a real estate decision?” |
| 11 of Schedule 1 | Conflicts of interest An agent must not accept an appointment to act, or continue to act, as an agent if doing so places the agent’s interests in conflict with a client’s interests. | Several Sydney buyers’ agents also conduct well established property management businesses; often managing properties bought by them for investor clients. As such businesses can yield valuable and long term future income streams for those buyers’ agents, is this not potentially in conflict with the obligation in section 11 of Schedule 2 Part 1 Division 1 to obtain the best possible price for those properties for their then buyer client, now landlord? And why is that model any different to the horizontal integration models criticised in the Hayne Royal Commission into…Financial Services? Similarly, why is it not a breach of this section for a buyers’ agent to act concurrently for different buyers with similar criteria and budget?
|
| 12 of Schedule 1 | Referral to service provider (1) An agent who refers a person to a service provider must not falsely represent to the person that the service provider is independent of the agent. (2) For this section, a service provider is independent of an agent if— (a) the agent receives no rebate, discount, commission or benefit for referring a client or customer to the service provider, and (d) the agent does not have a personal or commercial relationship with the service provider. (3) The following are examples of a personal or commercial relationship— (a) a family relationship, (b) a business relationship, (c) a fiduciary relationship, (d) a relationship in which one person is accustomed, or obliged, to act in accordance with the directions, instructions or wishes of the other person. (4) If the service provider is not independent of the agent, the agent must disclose to the person— (a) the nature of all relationships, whether personal or commercial, the agent has with the service provider, and (b) the nature and value of all rebates, discounts, commissions or benefits the agent may receive, or expects to receive, by referring the client or customer to the service provider.
| What’s the difference between a “service provider” and “professional services” in section 48(1) of the Act? It appears that referring service providers who are not independent is acceptable provided it is disclosed. What sanctions are there for non disclosure per se and if, for example, such disclosure would have made no difference to the client? |
| 14 of Schedule 1
| Inducements An agent must not offer to provide to a person a gift, favour or benefit, whether monetary or otherwise, to induce a third person to engage the services of the agent as agent.
| Does this also forbid a buyers’ agent from giving a third party or former client a gift for referring a new client to that buyers’ agent? Is such a gift seen as a gesture of gratitude or an attempt to induce further referrals? |
| 8 of Schedule 2 Part 1 Division 1 | Agent must not accept payment for referral An agent for a vendor must not demand or accept a fee or other valuable consideration for referring the vendor to a buyer’s agent.
| It’s an open secret, especially in parts of inner Sydney, that this prohibition is ignored by some agents. Reassuringly, those selling agents who have shared such examples with us rebuff buyers’ agent’s offers to share a percentage of their fee with them and refuse thereafter to deal with such buyers’ agents. |
| 11 of Schedule 2 Part 1 Division 1 | Buyer’s agent to obtain best possible purchase price An agent acting as a buyer’s agent must use the agent’s best efforts to obtain the best possible purchase price for the buyer… | |
| 14 of Schedule 2 Part 1 Division 1 | Agent must not accept payment for referral An agent acting as a buyer’s agent for a person must not demand or accept a fee or other valuable consideration for referring the person to a selling agent.
|
The Four Corners program
Entitled “Agents of Influence”, this program and an ABC article published the next day, focused briefly on the conduct in one matter handled by a fledgling NSW buyers’ agency called Henderson Advocacy.
These passages from that article provide a synopsis:
“Greig Sheridan is a fan of buyer’s agents…
But his most recent experience has left him questioning whether he should have used one again…
Henderson Advocacy located a home in the Newcastle suburb of Adamstown for Mr Sheridan and his partner.
The property was being sold by a selling agent…PRD Newcastle.
They made an offer, and it was accepted. On settlement, Henderson Advocacy charged them a commission on the purchase price of the property.
What they did not know — until they were contacted by Four Corners — was that one of Henderson Advocacy’s co-founders was also the founder and director of PRD Newcastle.
“That just seems totally inappropriate,” Mr Sheridan said…
Mr Kentwell also co-founded Henderson Advocacy alongside Jack Henderson in 2020.
He is not a director or shareholder of the company and told Four Corners he received no profit distributions or dividends from it.
The two men have also jointly directed two other separate companies since April 2021: Henderson Metro Vic Pty Ltd and Henderson Metro Qld Pty Ltd.
They appear in a number of online real estate videos together, including… Henderson Advocacy’s YouTube channel…
There is another layer to the relationship between Mark Kentwell and Jack Henderson.
Mr Kentwell supervises and owns another real estate business called “The Growth Centre” …
The business is a separate corporate entity from PRD, but the ABC understands its employees are given access to PRD Newcastle’s database…
A copy of a script obtained by Four Corners guides them…to… recommend Henderson Advocacy.”
While Henderson Advocacy’s way of doing business and marketing is the antithesis of Curtis Associates, given that neither the Act nor the Regulation has been amended since the Four Corners program was aired and as our analysis above thus shows, it is far from clear that Henderson Advocacy’s conduct breached the Regime.
While the ABC was correct to raise concerns about the regulation of buyers’ agents, it did so the wrong way.
In addition to not asking Mr Sheridan and his partner if they would not have retained Henderson Advocacy had these relationships been disclosed, the Four Corners program never examined the Regime and instead tarred all buyers’ agents with allegations unique to Henderson Advocacy.
This was grossly unfair to the many mature and reputable buyers’ agencies such as Curtis Associates which, after 17 years, enjoys a nearly 100% success rate and in a percentage matched by the number of properties we typically find off market, an over 80% repeat and referral clientele.
Failing to manage conflicts of interest is threatening the world’s largest real estate market
From The Economist on 8 November 2023:
“Time to take a wrecking ball to realtors’ fees in America
Every time a home changes hands, realtors…charge a staggering 5-6% of its value, two or three times more than they can get away with in any other rich country…
Ruling on a class-action lawsuit, a [Missouri] jury [on 31 October 2023] found the National Association of Realtors (NAR) and a handful of large real-estate brokers guilty of conspiring to keep commissions high. They awarded home sellers $1.8bn in damages. It’s a start…More copycat suits are likely to follow. Analysts think damages could reach $400bn…
The current rip-off works like this. The NAR has long insisted that any agent who lists a home for sale on a database called a “multiple listing service” must offer to split the commission equally with the agent who brings the eventual buyer to the property. Sellers are often told that if they do not offer the going rate, of 2.5-3% for the buyer’s agent, no one will show up. They have a point: academics have found evidence that buyers’ agents “steer” them away from low-commission properties. Buyers are told they need not worry about the fee paid to their agent, because the other guy is paying it. This is nonsense. Either the fat fee inflates the house price, or the buyer ends up paying a similar fee when he or she sells…
The judge in Missouri has yet to rule on specific anticompetitive practices that might be banned in light of the jury’s finding, but he could set standards nationwide”.
We have the best model – let’s not lose it
As The Economist concluded: “Commissions could be “unbundled”, with buyers and sellers each paying their own agents, as early as next year.”
Imagine that!
Conclusion
Curtis Associates is and always has been a zero conflicts of interest buyers’ agency.
We are not vendor’s advocates or property managers, nor do we sell property, pay or receive secret commissions, have any associated businesses or relationships and don’t act concurrently for different buyers with similar criteria and budget.
We are exclusively a buyers’ agent whose sole revenue source is you, our buyer client which assures you of our undivided loyalty.
If you’d like to know more, please get in touch.
