Going, going, gone: The law and authority of auctioning real property

Hundreds of homes are auctioned in Queensland every week. Sellers and buyers alike appreciate the transparency, open competition and efficiency gained from the process of auctioning real property. But what are the laws governing the actions of an auctioneer?

For those seeking to conduct an auction in Queensland with hope of achieving a quick and well-priced sale for their clients, it is best to be aware of the role (and bounds) of an auctioneer, as defined by legislation, before taking any steps.

The role of auctioneer

The Property Occupations Act 2014 (Qld) (Act) provides for the regulation of the activities, licensing and conduct of property agents, resident letting agents and their employees in Queensland, and aims to protect consumers against undesirable practices.

Both auctioneers and real estate agents fall within the definition of property agents. [1]

An “auctioneer” is specifically defined as a person who holds an auctioneer licence. An auctioneering licence is separate and distinct to that of a real estate agent licence, and it authorises the auctioneer, in the course of business, or as an employee, to: [2]

1. sell or attempt to sell or offer for sale or resale any real property, or an interest in real property, by way of auction as an agent for others for reward; and
2. sell the property or interest by any means during the auction period.

Appointing an auctioneer

Under the Act, all property agents must obtain an appointment as defined under the Act or be assigned an appointment.

Where an agency is appointed under a Form 6 to sell a property, any one or more of its employed agents/auctioneers will be authorised to market the property for sale, whether by private treaty or, where expressly stipulated in the Form 6, by public auction. 

Where the appointed agency is instructed to engage an external auctioneer to conduct the auction of the property, the auctioneer may be appointed by the sales agent via a conjunctional agreement.

The “auction period” referred to above is therefore simply that period for which the agent/auctioneer is appointed or otherwise authorised or permitted under the Act (or any other legislative instrument) to sell the property.

Auction day -v- auction period

Auction day

The Act stipulates that the day set for sale by auction is to be in writing, in the Form 6 appointment. [3]

Prior to commencing an auction, the auctioneer must ensure that:

• their name is displayed prominently at the auction site, and/or that they otherwise announce their name;
• they must display and announce the conditions of the auction, including:
  • the auction process;
  • the deposit payable under the terms of the auction contract;
  • all other pertinent terms of the contract of sale; and
  • any other information material to potential bidders.

While the auctioneer may accept a vendor bid up to the reserve price, he/she may not accept any bids on behalf of the vendor or their representative(s) once the reserve price has been achieved.

At the auction, an auctioneer will have authority to sign the contract or a note or memorandum of the contract, as the seller’s agent. This authority is typically conferred in the conditions of sale by public auction, but even without express authority in the appointment, the auctioneer is “…impliedly the agent of both the seller and buyer and is empowered to execute a contract…on behalf of a seller or buyer, whether either one or both refuse to sign at the fall of the hammer.” [4]

Or, pursuant to the Act, “directly on the fall of the hammer, by outcry; or directly at the end of another similar type of competition for purchase,” a contract is formed. [5]

That is to say, the “fall of the hammer” gives rise to the requisite authority for the auctioneer to sign on behalf of the seller and buyer, at which point neither the seller nor buyer is permitted to ‘walk back’ or rescind their respective authority.

This authority to sign on behalf of the seller and the buyer is not unlimited in time, however. The authority continues from the time of the fall of the hammer, through to the point when it ‘can fairly be held to be a part of the sale’. [6] This authority enables the auctioneer to sign the contract in the auctioneer’s office on the same day as the auction is conducted, [7] but it will not extend into the days or weeks following the auction. [8]

Auction period

The process is a little different during the auction period (i.e. appointment period). While the auctioneer is authorised throughout the auction period to sell the property before or after the day of the auction, through any means, such as regular back-and-forth negotiation with a potential buyer, they are not empowered as they are on auction day to execute the contract on behalf of the parties.

Takeaways

For property agents whose clients have expressed an interest in sale by auction, it is paramount to ensure that the lead sales agent has been properly appointed under a compliant Form 6 prior to performing any services pertaining to the marketing or sale of the property. This includes the Form 6, as well as any conjunctive agreement as between the appointed agent and any other independent property agent/auctioneer who is to be retained to assist in the sale process.

Not only is the Form 6 a regulatory requirement, having the appropriate written agreements in place will mitigate the likelihood of disputes down the track.

Where there are any uncertainties regarding the applicable process or law, agents are urged to seek independent legal advice prior to performing any services for or on behalf of their client.

Read more from the REIQ: FAQs: Updates to the-PO-Form-6-REIQ-Schedule

Or browse our suite of articles.