Section 31 of the Property and Stock Agents Act 2002 (NSW), requires every business to have a nominated Licensee-In-Charge (LIC) of that business. These LICs have a legal obligation to ensure the proper supervision of their business and must ensure that no part of the business is left unsupervised. The Statement of Regulatory Intent issued by NSW Fair Trading in mid-September 2020, for the real estate and property industry, has been extended until 1st April 2021. Active enforcement of the new requirements (which includes the Supervision Guidelines) will commence from 2nd April 2021.

To meet these requirements as detailed in the Act and also in the Supervision Guidelines issued by NSW Fair Trading, every business must have written procedures on how their agency will comply with the core requirements of the Supervision Guidelines.

NSW Fair Trading have focused on the aspect of agency supervision, as they have identified that poor supervision can cause distress and financial loss for consumers, which can lead to claims against an agent for negligence, misleading conduct and fraudulent use of trust money – for which substantial maximum penalties apply from NSW Fair Trading. As such, the Supervision Guidelines set out the requirements for proper supervision of a business, including the steps that an agency must take to prevent fraud, underquoting and misrepresentation. These requirements also include:

• supervision of employees engaged in the business
• establishment of procedures designed to ensure that the provisions of the Act and Regulation and other relevant laws are complied with, and
• monitoring employees’ conduct to ensure that those procedures are being followed.

Because every business is different, and the policies and procedures of every business vary from a two person office, to a twenty-two person office to a fifty-two person office – it is not feasible to have a “off-the-shelf” product that will adequately meet the requirements of the Supervision Guidelines. As no single document can meet the specific requirements for all agencies, you will need to tailor documents to meet the needs of your agency. To address this need in the property industry in New South Wales, the Australian College of Professionals has developed a set of proforma documents to assist LICs to tailor their procedures to meet the requirements.

In the main “Supervision Guidelines – Proforma” document, highlighted in red, are all areas that require your attention in order to tailor the document for the specific needs of your agency. This makes it easy for you to identify where additional information about your agency is required. We suggest that as a matter of urgency you consider each of the ten (10) areas contained in the document and make the necessary amendments and inclusions. This should not be a long process and it is essential that you have this document completed and shared with each of your team members as soon as possible.