Reform and Repeal of PAMDABen Olsen
Under sweeping reform by the Queensland Government, the Property Agent and Motor Dealers Act (PAMDA) will be repealed on the 1 December 2014. There have been consistent complaints about the amount of red tape people have to go through because of PAMDA. One reason for the red tape is that PAMDA is a complex piece of legislation that attempts to regulate many different industries.
The government has attempted to keep the important consumer protection policies contained in PAMDA while reducing red tape. The hope is that by incorporating the consumer protection policies into industry specific legislation the legal framework will be more streamlined and responsive to industry needs.
Home Sale Contracts
The reform of PAMDA will have a significant impact on the average residential sale contract. Under PAMDA, sellers or their agents had to give a Buyer a Form 30c, which contained specific information and had to be signed by the Buyer before they signed the actual contract.
Instead of the two page Form 30c, the Seller must now only ensure that a paragraph of information for the Buyer is included conspicuously in the contract, on the same page the Buyer signs. The information must let the Buyer know that there is a statutory cooling off period, when they can terminate the contract and that they only have to pay a relatively small termination penalty if they terminate during the cooling off period. The information paragraph must also recommend that the Buyer obtains an independent valuation and legal advice before signing the contract.
Under PAMDA, if a Seller or their agent failed to ensure that a Form 30c was correctly filled out and signed before the contract, they may have given the Buyer the right to terminate under the contract. Now, not only is the information that must be provided to the Buyer less of a burden, failure to correctly follow the provision will only lead to a penalty rather than possible termination rights.
Waiving the cooling off period
Under PAMDA it was possible for the Buyer to waive the statutory cooling off period, but they had to obtain a ‘lawyers certificate,’ which stated that the lawyer had explained the effect of the contract, the purpose of the certificate and the legal effect of giving the certificate and thereby waiving their rights to the Seller.
The government has removed the requirement to obtain a lawyers certificate under the new reforms. The reason given by the government for this change is that it is removing red tape and allowing Buyers to waive the cooling off period immediately to potentially lower the purchase price.
It remains to be seen whether this will be the case or whether it will allow Sellers or their Agents to pressure Buyers into waiving their cooling off period at the time they sign the contract.
Under PAMDA the commissions that agents could charge were capped at a certain percentage under the law. Under the new reforms these maximum commissions have been abolished. The government has said that because of a lack of price competition and discounting between agents, the maximum commissions did not work as a consumer protection measure and simply became the standard rates that agents charged for their service.
Non-residential vacant land
Agents are no longer required to give Buyers of non-residential vacant land a notice stating that the land cannot be used for residential purposes. The reason given is that the notice adds extra time and money to a transaction and does not provide consumer protection because the Buyers in these situations are normally well aware of the zoning limitations.
This is by no means a definitive list of all the changes brought about by the repeal of PAMDA. The sweeping legislative reform affects all parties to a residential or commercial property transaction in a number of ways. As such it is important that you understand what the changes are and how they affect you.
If you are a Buyer it is important to know what consumer protection measures still exist and how to protect yourself from shady operators. As a Seller you still need to make sure that you fulfil all of your obligations so that you don’t expose yourself to a penalty of any kind. Agents need to ensure that they adhere to the new licencing regime and meet all their obligations to the Seller or Buyer.
If you are unsure of how the reform affects you then you should seriously consider getting legal advice to protect your own interests.