课 cppdsm4015b minimise agency and consumer risk by Chris Lan

_____________________________________________ CPP40307 Certificate IV in Property Services (Real Estate)

CPPDSM4015B (Core) Minimise Agency and Consumer Risk

Learner Guide Â© The Australian Salesmasters Training Co Doc ID: CPPDSM4015B - Workbook (L) eLearning Developed by: SL Approved by: CEO File Location: S:\Learning & Assessment Resources\Real Estate\CPP40307 Certificate IV in Property NSW\Assessment Tools\6. CPPDSM4015B\CPPDSM4015B - Workbook (L) eLearning.doc

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_____________________________________________ CPP40307 Certificate IV in Property Services (Real Estate)

Contact Page

Australian Salesmasters Training Co P/L Registered Training Organisation #6854

Phone:

(02) 9700 9333

Fax:

(02) 9700 8988

Email:

Info@thesalesmasters.com.au

Mail:

PO BOX 638, Rosebery, NSW 2018

www.thesalesmasters.com.au

Doc ID: CPPDSM4015B - Workbook (L) eLearning Developed by: SL Approved by: CEO File Location: S:\Learning & Assessment Resources\Real Estate\CPP40307 Certificate IV in Property NSW\Assessment Tools\6. CPPDSM4015B\CPPDSM4015B - Workbook (L) eLearning.doc

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ÂŠ Australian Salesmasters Training Co P/L (ASTC) ASTC believes that the content of these notes and checklists are accurate and current at the time of printing. ASTC does not make any warranty of any kind, what so ever expressed or implied, with respect to the contents. It is the responsibility of the real estate professional using the notes and checklist to verify any information before relying on it.

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COURSE AGENDA Contents UNIT DESCRIPTOR ..................................................................................... 5 REFERENCE TEXTS ..................................................................................... 6 LEARNER ACTIVITIES ............................. ERROR! BOOKMARK NOT DEFINED. ELEMENT 1 - Identify potential risks to agency and clients ........................ 8 ELEMENT 2- Analyse causes and potential impact of risks on agency, clients and other stakeholders ................................................................ 12 ELEMENT 3- Implement agency procedures and systems to minimise risk ............................................................................................................... 16 ELEMENT 4 - Implement agency procedures and systems to minimise consumer risk ......................................................................................... 20 CONCLUSION .......................................................................................... 32 ACTS REGULATIONS AND FORMS ............................................................ 33 OUR MOST SOUGHT AFTER PRODUCTS AND SERVICES............................ 36

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UNIT DESCRIPTOR This unit of competency specifies the outcomes required to minimise risk to all aspects of agency business and to consumers. It includes identifying potential risks to the agency and its clients, analysing the causes and potential impact of risks, and implementing agency policies and procedures to minimise risks to the agency and consumers. The unit may form part of the licensing requirements for persons engaged in property development and management activities, including those working in the real estate, business broking, stock and station agency and property operations and development sectors, in those States and Territories where these are regulated activities. The required outcomes described in this unit of competency contain applicable facets of employability skills.

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REFERENCE TEXTS Real Estate Why Is It So?

Carl Gunther and Brian Churchill Bricar Publishing 7th ed. 1990

Real Property Practice

Frank Davis and Peter Willis Petfran Publications 1st Ed 2003

A Glossary of Terms used in Real

Frank Trimboli

Estate Valuation and Practice

REIA Publishers 2nd Ed 1979

Web Resources The following websites are referred to in the course and may be required to access to complete certain assessment questions. www.fairtrading.nsw.gov.au (Office of Fair Trading NSW) www.reef.org.au (Real Estate Employers Federation) www.accc.gov.au (Australian Competition and Consumer Commission) www.reinsw.com.au (Real Estate Institute of NSW) www.rei.net.au (Real Estate Institute of Australia) www .ssaaonline.com (Stock and Station Agents Association Ltd) www.istm.org.au (Institute of Strata Title Management) www.avaa.com.au (Auctioneers and Valuers Association of Australia) www.workcover.nsw.gov.au (occupational health and safety matters) www.lpi.nsw.gov.au (NSW government land and property information service) www.austlii.edu.au (Australian Legal Information Institute) www.osr.nsw.gov.au (Office of State Revenue for stamp duty and land tax information) www.ato.gov.au (Australian Taxation Office) www.austlii.edu.au (Real Estate relevant legislation) www.privacy.org.au (Australian Privacy Foundation) www.abs.gov.au (Australian Bureau of Statistics) www propertyinstitute.com.au (Australian Property Institute) www.propertyoz.com.au (Property Council of Australia) www.tica.com.au (Tenancy Information Centre of Australia) www.realtorproperty.com.au (General Real Estate information) www.rpdata.net.au (Property Information Service) www.thebuyersagent.com.au/auctions.asp (General information on Auctions) ww.cttt.nsw.gov.au (Consumer, Trader and Tenancy Tribunal)) www.firb.Qov.au (Foreign Investment Review Board - guidelines for foreign investment) www.domain.com.au (general property information) www. realestate.com.au (General Information about Real Estate in NSW and Australia) www choice com.au (Australian Consumer Protection)

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Element 1 - Identify potential risks to agency and clients. 1.1 1.2 1.3 1.4

Sources of information and tools for identification of actual and potential risks are accessed. Actual and potential risks to agency, clients and other stakeholders are identified. Agency representations and information provided by clients are confirmed and assessed in line with agency practice. Identified risks are documented according to agency and legislative requirements.

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ELEMENT 1 - IDENTIFY POTENTIAL RISKS TO AGENCY AND CLIENTS INTRODUCTION This unit discusses risk management in the real estate services and work practices of running of a real estate agency. Underpinning all of these are the statutory requirements of the relevant Acts and the theme of risk management. Risk management is an issue for all businesses, but when we consider the dealings in the property industry, although being a service industry, these services revolve around the handling of other people’s money and assets. Therefore the importance of appropriately managing these dealings to prevent loss to any of the parties involved the client, the agent and the agency. So what is loss within the real estate agency context? If you have suffered a loss you will be able to readily relate to this question and understand the impact of loss and the role of reducing exposure to loss. Risk refers to: • Exposure to loss • Possible loss • An adverse event, which could threaten the agency’s ability to conduct business

Causes of risks may include: • • • • • • • • •

commercial and legal relationships economic circumstances human behaviour inaccurate information provided by clients individual activities management activities and controls natural events political circumstances technological issues

Potential impact of risks may adversely affect: • • • • •

capital reserves cash flow viability and resulting liquidity goodwill value nett worth of the business return on investment

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RISK MANAGEMENT STRATEGY In any business endeavour, risk management strategy may: •

deliver greater confidence and rigor around decision-making processes and planning

•

enhance the identification of opportunities and threats

•

gain value from uncertainty and variability

It is critical that the risk management strategy is relevant to the business activities to which it will be applied. To ensure this relevance, it is important to consider the external environment in which the business operates. This may, for example, include: •

the business, social, regulatory, cultural, competitive, financial and political environment

•

the business’s strengths, weaknesses, opportunities and threats

•

external stakeholders

•

key business drivers

It is particularly important to take into account the perceptions and values of external stakeholders and to establish policies for communication with these parties. Establishing the external context is important to ensure that stakeholders and their objectives are considered when developing risk management criteria and that externally-generated threats and opportunities are properly taken into account. Of equal importance, the internal environment can also be considered. Understanding the organisation itself is a critical component of any risk management strategy. Key areas include: •

culture

•

internal stakeholders

•

structure

•

capabilities in terms of resources such as people, systems, processes and capital

•

business goals and objectives and the strategies that are in place to achieve them

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These concepts are not new and many reporting entities will already have policies, procedures, processes and systems in place to manage a range of risk factors. For example, many Property Services institutions already have robust frameworks in place to manage credit risk, market concentration risk, liquidity risk and operational risk, etc. that may be imposed under various laws (for example the Property, Stock and Business Agents Act 2002 (NSW)). Similarly, the gambling industry is subject to a range of risk management controls such as those imposed under various state legislation ( for example SA Racing Act, NSW Casino Control Act, etc.). In essence, this means many areas of industry will already be familiar with both prescriptive and risk-based approaches. It is recommended that the process, procedures and tools element of structured Risk Principles Framework shows two types of risk that the risk management program must manage: â&#x20AC;˘

business risk, so that your business does not breach Fair Trading, Consumer Protection Property services duties including obligations not to be used in the criminal activity of money laundering or terrorism financing

â&#x20AC;˘

regulatory risk, so that your business meets its property services regulatory obligations

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Element 2 Analyse causes and potential impact of risks on agency, clients and other stakeholders. 2.1 2.2 2.3 2.4 2.5

Causes of risks are analysed in line with agency practice. Potential impact of risks on agency, clients and other stakeholders is determined. Consequences, likelihood and severity of risks are assessed. Risk categorisation is undertaken and risk priorities are set. Risk analysis processes and outcomes are documented.

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ELEMENT 2- ANALYSE CAUSES AND POTENTIAL IMPACT OF RISKS ON AGENCY, CLIENTS AND OTHER STAKEHOLDERS REGULATORY RISK VERSUS BUSINESS RISK For the Property services environment a risk management framework may deal with risks in the context of: 1. regulatory risk 2. business risk Regulatory risks are associated with breaches of the example the Property, Stock and Business Agents Act 2002 (NSW) (or equivalent State or Territory legislation) Fair Trading and consumer Protection rules. A robust compliance plan will encompass relevant legislative obligations and define the control and review mechanisms needed to ensure compliance. Such obligations include monitoring property servicesâ&#x20AC;&#x2122; issues, customer identification requirements and record-keeping obligations. Business risk is the risk that your Property Servicesâ&#x20AC;&#x2122; office incurs in day to day operations Risk management programs catagorise business risk as: 1. inherent risk 2. residual risk

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You may need to consider what controls, systems and procedures should be put in place in order to identify, mitigate and manage any one of these risk categories or a combination of all of them. Inherent risk can be assessed across a business as a whole and in particular: • customer type risk • types of designated services risk • delivery method risk • risks when dealing in foreign jurisdictions The following worksheet may assist in prioritising which of your services may be more vulnerable.

Service name:

Instructions: Use this sheet to make a simple review of a service against areas of risk and use this for allocating a priority for formal risk assessment.

Describe the service in your own words:

Which designated services are provided?

At which type/s of customers is the service aimed?

What are the channels for providing the service to your customers?

Is the service provided to overseas markets, or being sought by customers from overseas jurisdictions? Which countries feature in the markets for this service?

On a scale of 1 to 10 (where 1 is low and 10 is high) what is your level of concern about this service?

What priority do you need to give the risk assessment for this service?

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ABC Real Estate Company Risk Assessment Matrix

Risk Category

Type of Potential Risk

Management Strategy Development

Level Risk

Responsibility

Date for review

Extreme High Moderate Low Moderate High Extreme

(i) Consequences (ii) Likelihood

Insignificant

Minor

Moderate

Major

Catastrophic

High Risk

Extreme Risk

Moderate Risk

High Risk

Extreme Risk

Possible

Low Risk

Moderate Risk

High Risk

Extreme Risk

Unlikely

Low Risk

Moderate Risk

High Risk

Extreme Risk

Rare

Low Risk

Moderate Risk

High Risk

Almost certain Likely

The ABC Real Estate response to risk: ▪ Extreme risk - all possible action is taken to avoid and insure against these risks. ▪ High risk – ASTC is accountable and responsible for ensuring that these risks are managed effectively. ▪ Moderate risk - accountability and responsibility for effective management of these risks is delegated to staff at an appropriate level. ▪ Low risk - these risks are managed in the course of routine procedures, with regular review and reporting through management processes.

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Element 3 Implement agency procedures and systems to minimise risk. 3.1 3.2 3.3 3.4 3.5

Options for minimising risks, including legislative measures, are determined and assessed for strengths and weaknesses. Risks are continuously monitored in line with agency practice. Agency procedures and systems for controlling risks, including handling complaints, are identified and implemented, as required. Control measures are chosen and implemented as required. Risk treatment plans are implemented as required.

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ELEMENT 3- IMPLEMENT AGENCY PROCEDURES AND SYSTEMS TO MINIMISE RISK RISK PRIORITIES Risk priorities may refer to: • assessing consequences and likelihood • assigning a value to identified risks using available tools

OPTIONS FOR MINIMISING RISKS Options for minimizing risks may include: • avoid the risk – deciding not to become involved in a risk situation • finance the risk – funding risk treatment and the financial consequences of risk • reduce the risk – applying appropriate techniques and management principles to reduce the likelihood of an occurrence and its consequences • retain the risk – intentionally or unintentionally retaining responsibility for loss or financial burden of loss • transfer the risk – shifting responsibility or burden of loss to another party through contract, insurance or other means

As a Property Services operator it is necessary to consider the risks your business might reasonably face. It is likely that your business will already have policies, strategies and procedures in place to deal with other legislative requirements, for example security protocols, workplace relations, anti-discrimination laws and occupational health and safety. It is recommended that any existing policies, procedures or risk frameworks be adapted to incorporate and Office of Fair Trading requirements. One of the main drivers for developing a risk program for most real estate agencies is to be compliant with the Property, Stock and Business Agents Act 2002 (NSW) [or equivalent State or Territory legislation]t and to avoid being subjected to regulatory action. Managing this regulatory risk is a very important consideration; but of equal concern to businesses are managing the operational risks to avoid the impacts that might follow if the business was targeted by money launderers or terrorists. Loss of reputation, legal costs, losing market share, or being less competitive are possible if your business becomes a conduit for money laundering or terrorism financing.

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The need for a culture of compliance To ensure that the programs and systems established within a business are successful, compliance should become part of an organisationâ&#x20AC;&#x2122;s culture. A culture of compliance is one where commitment to achieving risk management and regulatory objectives are embedded at all levels of the organisation and compliance is an inherent and expected behaviour that is considered a value add, rather than be viewed or practiced as a separate activity and considered an unwelcome business cost. To successfully manage risks and comply with regulatory obligations, management needs to recognise that establishing the right culture will be a major responsibility for them, in parallel with monitoring and controlling responsibilities. How can business benefit from a culture of compliance? A strong culture of compliance will benefit businesses by improving the management and mitigation of both business and regulatory risks. The positive outcomes of a culture of compliance will result from improved employee performance in identifying and dealing with any unlawful conduct channeled through the organisation. Regulatory risk may be reduced, and , in the event that if the Office of Fair Trading instigated legal proceedings for an alleged breach of conduct, if you are able to demonstrable existence of a culture of compliance this may be considered a strong a mitigating factor by the court. As well as reducing the financial and reputational risks associated with regulatory noncompliance, benefits can extend to such aspects of the business as customer service, employee and customer loyalty and ultimately competitive advantage. How can a culture of compliance be achieved? Operators within the Property Services industry have numerous regulatory obligations, which the prudent operator should include as part of the property services businessâ&#x20AC;&#x2122;s broader compliance programs and culture. The values, attitudes and beliefs exhibited by management represent the single greatest influence on the successful implementation of a culture of compliance. If management, including team leaders, are not seen to be committed to compliance, it may send the message that compliance is discretionary. Several factors that Property Services organisations need to consider to successfully integrate compliance into their culture are also required elements of the Property, Stock and Business Agents Act 2002 (NSW), Office of Fair Trading registration and Continuous Professional Development programs. However, to ensure that implementation of an effective Risk Management program is successful, the following elements of a culture of compliance should be considered in conjunction with the required elements of the Property, Stock and Business Agents Act 2002 (NSW) and the Office of Fair Trading. Compliance framework Compliance policies, processes, resources, training, monitoring and reporting are the foundation of a culture of compliance. Behavioural factors Doc ID: CPPDSM4015B - Workbook (L) eLearning Developed by: SL Approved by: CEO File Location: S:\Learning & Assessment Resources\Real Estate\CPP40307 Certificate IV in Property NSW\Assessment Tools\6. CPPDSM4015B\CPPDSM4015B - Workbook (L) eLearning.doc

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For the compliance framework to be effective it needs to be embedded in the culture, which will require training and demonstration and encouragement of the appropriate behaviours by management. Structural issues Compliance should be integrated into all operational areas of the business rather than a separate compliance function. Business planning A formal business plan will assist management throughout the organisation to incorporate compliance activities into units. Inter-business unit management Some compliance functions will extend across several business units which will require careful planning and management. Resourcing Senior management allowing adequate time and resources for compliance activities. The Australian Competition and Consumer Commission (ACCC) has observed that organisations that effectively establish a culture of compliance typically travel through three phases. While the observations were made in relation to the Trade Practices Act 1974, they are equally applicable to achieve compliance with their obligations under other regulatory obligations. The three phases are: 1. Commitment to comply. Management develops a willingness or commitment to address compliance issues and allocate the resources to achieve it. 2. Compliance know-how. Specialist personnel are appointed and made accountable for compliance program development and internal and external expertise is sought and assimilated. Corporate strategy takes account of compliance. Policies and procedures are developed to address compliance issues. 3. Compliance as business practice. Compliance becomes the way business is done and is no longer external to it. Compliance policies are considered integral to business objectives. Operational procedures take account of compliance; the performance of work duties in compliance with the law is the business norm .

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Element 4 Implement agency procedures and systems to minimise consumer risk. 4.1 4.2 4.3 4.4

Risks to consumers engaged in business dealings with the agency are identified and assessed in line with legislative requirements and agency practice. Consumer risks are continually monitored in line with agency practice. Agency procedures and systems for minimizing consumer risk are identified and implemented as required. Personal skills in identifying and assessing consumer risk are reviewed, and where appropriate, strategies are implemented for improving this aspect of professional practice.

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ELEMENT 4 - IMPLEMENT AGENCY PROCEDURES AND SYSTEMS TO MINIMISE CONSUMER RISK AGENCY AND CONSUMER RISK MANAGEMENT Your role in real estate will involve dealings with contracts and other people’s property and those dealings also involve large sums of other people’s money. Hence it is an industry particularly vulnerable to risk if proper procedures are not established and followed.

Risk refers to exposure to loss. To reduce risk occurring the business practices of the agency should be: •

Identifying the possible risk areas

•

Applying appropriate procedures to reduce the chance of risk occurring.

Risk and loss affects all stakeholders in real estate transactions, the client, the agency and the employees. It is unrealistic to assume that risks, mistakes and loss will not occur, we are human and are not perfect, however the chance of these occurring will be at their least if risks are recognized and procedures are adopted to prevent mistakes or errors occurring. The agency will be focusing on the professional liability of the business to reduce the possibility of litigious occurrences. For example: in all areas of real estate practice, sales, property management and administration there should be clearly defined policies and procedures guidelines for all employees to follow as a risk management strategy. The content of this unit is focused on the legislation and its impact on the business practices and procedures in your job role. By applying these practices you will be participating in risk management, thus reducing the possibility of risk.

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Risk areas: •

Licensing requirements for those employed in the property industry

•

Completion of contractual agreements to claim fees and charges

•

Trust accounts to keep principal’s money separate

•

Under the Property Stock and Business Agents Act 2002, licensees records in relation to the handling of trust money must be audited

•

The audit must be lodged within 3 months after the end of the audit period

•

Disclosing of fees and GST on agency agreements

•

Knowledge of all Acts governing the property industry

•

Rules of Conduct applied in your business dealings

•

Providing appropriate consumer guides to clients

•

Recognising conflicts of interest

•

Duty of disclosure

•

Misleading and deceptive practices

•

Employment requirements

•

Professional development requirements

By adhering to the above points in your job role, you will not only be upholding the legislation but you will be protecting the agency, licensee, your clients and yourself by applying ethical business practices and thus reducing the chance of loss or risk.

The impact of the risk will vary depending on the circumstances however each department within the agency has specific risk areas it needs to identify and manage. For example the sales department should have a procedure for registering all bidders prior to the auction commencing to prevent an unregistered bidder disrupting the auction. The property management department should have diarised dates for property inspections to ensure adequate monitoring of the landlords property. To be realistic it would be impossible to prevent risk due to the human factor; we all can make mistakes, risk management recognises this human factor.

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The actual management of risk refers to: •

Establishing methods and systems of practice

•

Adhering to these systems in our work functions

•

Being proactive rather than reactive (prevention is better than cure)

•

Identifying potential sources of liability

•

Aiming to improve work practices

•

Conducting reviews of these internal systems

The impact of risk or loss occurring has the potential to interfere with the business in terms of its reputation and it’s stability. This could have a crippling effect on an agency; it’s reputation and the employees. The agency should therefore adopt risk management strategies with the aim of: 1. Identifying all potential sources of risk and areas of liability 2. Recognising possible risks 3. Eliminating mistakes to prevent possible loss to the business and its clients The benefits of a risk management program to the business are: •

It identifies risks

•

It creates an awareness by all staff of risks/loss and their impact

•

It encourages establishment of systems, policies and procedures in the agency

•

It identifies and monitors required insurances

•

It protects against loss

•

It contributes to business profit and productivity

•

It upholds the best practice approach to management

•

It requires adherence to statutory legislation

As a real estate operative you have a personal and professional duty to prevent risk to any party in your dealings including yourself, if not you could suffer the consequences. For example a breach of the legislation could lead to: •

Caution or reprimand

•

Penalty units imposed on their certificate or licence

•

A condition imposed on their certificate or licence

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•

Monetary fines

•

Suspension or cancellation of their licence/certificate

•

Disqualification from the industry

The impact on the business of an employees breach can be serious, it could be financial in nature and therefore cost someone money, it could involve a complaint by a client and lead to investigations by the Commissioner of the Office of Fair Trading or it could damage the goodwill and reputation of the business as well as cost that person their employment position. Depending on the business structure, the loss can have a variety of impacts e.g. a sole trader can suffer 100% of the loss, a partnership will share the loss whereas a company structure may be sued at court.

Identified risks relevant to real estate may include the following: Negligence or professional liability Breach of legislative requirements

Accidental damage Public liability Theft or fraud

Interruption to business

Motor vehicle

Fire or natural events

Security of the office

Storm and water damage

OH and S

Identified risks relative to consumers may include the following: Advertising and marketing Moneys held in trust Property management Property sale Provision of information and advice

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PROPERTY MANAGEMENT RISK AREAS

Listing of Property The property manager conducts a preliminary

inspection

the

property The property is presented in a fit and habitable condition prior to occupancy by tenant

An repair/maintenance is completed by landlord prior to locating a suitable tenant

No residential tenancy agreements are signed until the property is habitable

Market rent is substantiated with The landlord is educated about realistic rent comparables

price

The managing agency agreement is discussed with the landlord and Each section is explained to the landlord completed in person A

thorough

in-going

condition

report is completed Declare and discounts rebates or commissions

A copy is sent to landlord

These are written on the agreement If the agreement states that repairs over

Act within authority

$500 must be given landlord approval, call them in such circumstances and get approval

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Property Manager’s Duties Tenants references are screened

Ability to meet rent and maintain property

thoroughly

verified by references

No breach of the anti-Discrimination

Tenant applications are considered in order of

Act occurs when selecting tenants

receipt

Inspection of property occurs every 3 months throughout the tenancy

Best practice is 4 inspections per year

Encourage landlords to take out Landlord’s Insurance to cover against loss of rent or damage by

Consumer protection for clients is upheld

tenants Check all tradesperson’s licenses

Ensure annual system of checks, only used

and insurances

licensed tradespeople

All copies of correspondence are forwarded to the landlord

Copies also held in landlord file

A policies and procedures manual is

Staff are inducted with agency policies which

developed and followed

are updated annually

Full sets of keys are kept in agency

Keys are kept and photocopied on receipt

Bond is promptly lodged with Rental

Correct amount lodged with RBB and receipt

Bond Board

kept in file

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Tenants All prospective occupants each complete an Application for Tenancy

Are accompanied by the agent on all inspections

Each is given equal opportunity

No keys are handed to prospective tenants

Complete the Residential Tenancy

Take time to sit down with tenants and explain

Agreement with tenants.

the terms and conditions

Ensure tenants complete the condition report and return within 7 days

Explain tenants responsibilities

Report any damage or repair promptly

Tenants to place report in writing to agent

Given the right to quiet enjoyment

Give legislated notice prior to inspection

Provided with notice if in arrears with rent

Agent to monitor arrears weekly

Do not use bond to supplement final 4

Tenant informed about responsibility to pay rent

weeks rent

until date of vacating

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Landlords Uphold their obligations regarding repair

Property manager explains this and provides a

and maintenance of the property

copy of the â&#x20AC;&#x153;Renting Guideâ&#x20AC;?

Do not door knock tenants

Maximum 4 inspections per year is upheld, do not door knock tenants.

Account to landlord in accordance with

Net rent is forwarded to landlord as per agency

their contract

agreement e.g. fortnightly

Property manager provided with annual

Recommendations are provided to maximise rent

market appraisals

return

Only licensed trades people to conduct any

Landlords are advised against their own handy

repair/maintenance

work Landlords cannot expect the agent to discriminate

Do not discriminate against tenants

on certain grounds of the Anti Discrimination Act 1977

Must hold required insurances over the

Property manager annually checks that insurances

property, e.g. fire theft, public liability

are current

Appropriate disclosures made to landlord

Beneficial interest received by agency disclosed

Landlord files secure and confidential

Property manager maintains files in lockable fireproof cabinet, backs up soft copy files daily.

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Work health & safety (WHS/OH&S) risk management: What is the purpose of WHS/OHS policy and procedure? To ensure: 1. A safe and conducive work place 2. risk identification and management 3. related to all persons on a worksite (employers, employees, invitees & visitors) Many Australian organisations already have experience of the management of work health & safety / occupational health and safety (WHS/OH&S), which has obligations under law, but which has also conferred benefits on Australian business and its employees. . WHS/OH&S policy is more performance focused through monitoring of programs and continuous improvement measures. The emphasis to a risk-based legislation placed the responsibility for workplace safety on all employees and especially on management to provide a safe work environment. This required organisations to undertake an assessment of risks to their employees and adapting the workplace and working conditions accordingly to reduce the risks of injury and death. This required organisations to undertake an assessment of risks to their employees and adapting the workplace and working conditions accordingly to reduce the risks of injury and death. For this strategy to work effectively, employee awareness and ownership of these responsibilities is essential. Compliance with WHS/OH&S legislation is enforceable pursuant to legislation, however a culture of voluntary compliance is also encouraged. Organisations which fail to comply receive civil penalties; while in the Australian Capital Territory criminal penalties for ‘industrial manslaughter’ exist for serious breaches. AS a result of “risk management” penalties organisations quickly recognised other benefits flowed from their WHS/OH&S efforts. Organisations soon realised the cost of increased workers compensation premiums, sick pay and lost productivity could be reduced by implementing effective work and safety programs. To undertake changes of this magnitude, modifications of cultural behaviour were necessary. Employees learned that they were also responsible for their own safety and that of their work colleagues. Mandatory safety training was introduced and designated WHS/OH&S officers were appointed to advocate on behalf of staff, particularly so in industries without a union presence. This change in culture was from a previously prescriptive approach to more participatory management of WHS/OH&S that supports best practice development.

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Awareness of WHS/ OH&S has resulted in a strong culture of workplace safety, where organisations and their employees now consider WHS/OH&S training, policies, procedures and processes, risk assessments, reporting of dangerous conditions and losttime accidents and the overall effort to manage workplace safety, to be a part of standard business practice. How should I follow workplace procedures for hazard identification and risk control? 1. Recognise and report hazards in the work area to designated personnel according to workplace procedures. 2. Accurately follow workplace procedures and work instructions for controlling risks 3. Whenever necessary and within the scope of my responsibilities and competencies, follow the real estate agency’s procedures for dealing with accidents, fires and emergencies As there may be no way of eliminating or substituting risk it is necessary to develop control mechanisms to minimise the risk from occurring and to administer controls to minimise occurrence Examples of the ways in which occupational health and safety is managed in the workplace, and activities required under occupational health and safety legislation • • • • • • •

• •

plant and equipment maintenance hazard identification risk assessment and control occupational health and safety instruction training and provision of occupational health and safety information the preferred order of ways to control risks (known as the hierarchy of control) Workplace occupational health and safety policy and procedures relevant to the work being undertaken, including procedures for: • recognising and reporting on hazards, for example, work area inspections • work operations to control risks, for example, permit to work systems and isolation procedures • responding to accidents, fires and emergencies • raising occupational health and safety issues • employee participation in occupational health and safety management, for example, consultative or occupational health and safety committees and joint employer/employee inspections The meaning of occupational health and safety symbols found on signs and labels in the workplace Designated personnel responsible for occupational health and safety

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PROFESSIONAL ASSOCIATIONS Professional associations usually provide members with up-to-date resources and commentary on all facets of real estate agency practice. Examples may include information about the following key areas: • • • • • •

Abandoned premises Company title Do Not Call Register Estimated selling price Pesticide use Tenant reference databases

Assistance to minimise risk is often provided through a range of services for members. For example, • •

Compliance Review Service Member Helpline

The Real Estate Institute of NSW (REINSW) offers a Compliance Review Service specifically designed to highlight problems in an agency’s procedures which may result in lost commission or leave an agency open to fines from the Office of Fair Trading for non-compliance with applicable legislation. This member service includes an REINSW employee with extensive experience in agency practice visiting your office and providing immediate advice on compliance weaknesses and areas of risk. A written report customised for your agency is then submitted to you. The REINSW advises that this risk management tool examines the following areas: • • • • • • • •

Licences and Certificates of Registration Continuing Professional Development OFT Supervision Guidelines Banking practices and trust accounts Estimated selling price Advertising and promotional material Conflict of interest and duty to disclose Financial and investment advice

• • • • • • •

Referrals to service providers Complaints handling procedures Staff recruitment Samples of property management files Samples of sales files Privacy policy Work Health & Safety (WHS)

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In Summary The general risk areas in real estate practice are: •

The requirements of the Property Stock and Business Agents Act 2002

•

Statutory obligations and responsibilities of an agent in property management

•

Handling of listed and managed properties

•

Security of listed and managed properties

•

Receiving and handling of monies

To actually manage risk the following approach should be adopted: •

Analyse potential risks to agency and the client

•

Implement policies and procedures to minimise risk occurring

•

Create monitoring and reporting systems to minimize risk to the agency and clients.

The most beneficial approach regarding the above should involve all staff of an agency, at management level and in consultation with the staff from the administration, sales and property management departments. This team involvement encourages individual and team responsibility by all. It supports the aim of wider awareness and ownership of responsibility with the long-term benefit to all. The impact of risk and loss has a rippling effect on all involved; hence it is the holistic approach that will be mostly proactive.

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CONCLUSION You now have completed the content and assessment for this unit CPPDSM4015B Minimise agency and consumer risk. This activity has provided an overview of minimizing agency and consumer risk in the property industry to prepare you to enter your job role with an understanding of what is expected of you to be a responsible and ethical real estate practitioner.

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ACTS REGULATIONS AND FORMS

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The activities of real estate agents, stock and station agents, and business agents are governed by the Property, Stock and Business Agents Act 2002 (NSW) and its Regulation, amongst other pieces of legislation. You can view the following non-exhaustive list of legislation which affects the practice of these types of agents via the links below: •

Anti–Discrimination Act 1977 (NSW)

•

Anti-Discrimination Regulation 2014 (NSW)

•

Boarding Houses Act 2012 (NSW)

•

Boarding Houses Regulation 2013 (NSW)

•

Community Land Development Act 1989 (NSW)

•

Community Land Development Regulation 2007 (NSW)

•

Community Land Management Act 1989 (NSW)

•

Community Land Management Regulation 2007 (NSW)

•

Competition and Consumer Act 2010 (Cth)

•

Competition and Consumer Regulations 2010 (Cth)

•

Conveyancing Act 1919 (NSW)

•

Conveyancing (General) Regulation 2013 (NSW)

•

Conveyancing (Sale of Land) Regulation 2010 (NSW)

•

Corporations Act 2001 (Cth)

•

Corporations Regulations 2001 (Cth)

•

Environmental Planning and Assessment Act 1979 (NSW)

•

Environmental Planning and Assessment Regulation 2000 (NSW)

•

Fair Work Act 2009 (Cth)

•

Fair Work Regulations 2009 (Cth)

•

Fair Trading Act 1987 (NSW)

•

Fair Trading Regulation 2012 (NSW)

•

Landlord and Tenant Act 1899 (NSW)

•

Land Acquisition (Just Terms Compensation) Act 1991 (NSW)

•

Privacy Act 1988 (Cth)

•

Privacy Regulation 2013 (Cth)

•

Privacy Amendment (Private Sector) Act 2000 (Cth)

•

Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth)

•

Privacy and Personal Information Protection Act 1998 (NSW)

•

Privacy Code of Practice (General) 2003

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Privacy and Personal Information Protection Regulation 2014 (NSW)

•

Property, Stock and Business Agents Act 2002 (NSW)

•

Property, Stock and Business Agents Regulation 2014 (NSW)

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Property, Stock and Business Agents (Auctioneers Qualifications) Order 2009 (NSW)

•

Property, Stock and Business Agents (Qualifications) Order 2009 (NSW)

•

Real Property Act 1900 (NSW)

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Real Property Regulation 2014 (NSW)

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Residential Tenancies Act 2010 (NSW)

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Residential Tenancies Regulation 2010 (NSW)

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Retail Leases Act 1994 (NSW)

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Retail Leases (Amendment) Act 2005 (NSW)

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Strata Schemes Management Act 1996 (NSW)

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Strata Schemes Management Regulation 2010 (NSW)

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Strata Schemes (Freehold Development) Act 1979 (NSW)

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Strata Schemes (Freehold Development) Regulation 2012 (NSW)

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Strata Schemes (Leasehold Development) Act 1986 (NSW)

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Strata Schemes (Leasehold Development) Regulation 2012 (NSW)

•

Swimming Pool Act 1992 (NSW)

•

Swimming Pools Regulation 2008 (NSW)

•

Work Health and Safety Act 2011 (NSW)

•

Work Health and Safety Regulation 2011 (NSW)

A large number of other Acts and Regulations impact the property industry in NSW.

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