New South Wales Consolidated Acts

PROPERTY AND STOCK AGENTS ACT 2002 - SECT 49

49 Restrictions on licensee obtaining beneficial interest in property

(1) A real estate agent who is retained by a person (
"the client" ) as an agent for the sale of property must not obtain or be in any way concerned in obtaining a beneficial interest in the property.

: Maximum penalty--200 penalty units or imprisonment for 2 years, or both.

(2) An assistant real estate agent employed by the real estate agent must not obtain or be in any way concerned in obtaining a beneficial interest in the property.

: Maximum penalty--200 penalty units or imprisonment for 2 years, or both.

(3) A person does not contravene this section by obtaining a beneficial interest in property if--

(a) before the person obtains the interest, the client consents in writing in a form approved by the Secretary to the person obtaining the interest, and

(b) the person acts fairly and reasonably in relation to the obtaining of the interest, and

(c) no commission or other reward is payable to the person in relation to the transaction by which the interest is obtained, unless the client consents in writing in a form approved by the Secretary to the commission or other reward being paid.

(4) Without limiting this section, a person is considered to obtain a beneficial interest in property if--

(a) the person or a close relative of the person obtains a beneficial interest in the property, or

(b) a corporation having not less than 100 members and of which the person or a close relative of the person is a member, or a subsidiary of such a corporation, obtains a beneficial interest in the property, or

(c) a corporation of which the person or a close relative of the person is an executive officer obtains a beneficial interest in the property, or

(d) the trustee of a discretionary trust of which the person or a close relative of the person is a beneficiary obtains a beneficial interest in the property, or

(e) a member of a firm or partnership of which the person or a close relative of the person is also a member obtains a beneficial interest in the property, or

(f) the person or a close relative of the person has, directly or indirectly, a right to participate in the income or profits of a business carried on for profit or gain and another person carrying on that business obtains a beneficial interest in the property.

(5) Without limiting this section, each of the following is considered to constitute the obtaining of a beneficial interest in property--

(a) purchasing property,

(b) obtaining an option to purchase property,

(c) being granted a general power of appointment in respect of property.

(6) In this section--

"close relative" of a person means--

(a) a spouse of the person, or

(b) an existing or former de facto partner, or

(c) a child, grandchild, sibling, parent or grandparent of the person, whether derived through paragraph (a) or (b) or otherwise, or

(d) any other person who has a relationship with the person that is prescribed by the regulations as constituting the relationship of close relative for the purposes of this section.

Note--: "De facto partner" is defined in section 21C of the Interpretation Act 1987 .

"property" includes an interest in property.