Form 1 Part D – Agent’s Certification
There is ongoing debate in the real estate industry about who should be signing Part D of the Form 1. Conveyancers are constantly being told that they must sign (and therefore be liable for) the Agent’s Certification contained in Part D.
Geoffrey Adam, experienced property and commercial lawyer with the Australian Institute of Conveyancers, recently provided clarification on the topic with a detailed article released to the conveyancing industry.
In short, an Agent may outsource some statutory tasks that are required under the Land and Business (Sale & Conveyancing) Act 1994 (LBSCAct). This means that the prescribed inquiries and preparation of the vendor’s statement may be outsourced, but the Agent must make certain that the inquiries are made, including that the relevant questions have been asked of the vendor and that the appropriate searches have been made as to the particulars of the property. The Agent cannot outsource this responsibility and must certify Part D. The obligations and liability for any outsourced tasks remains on the Agent (see sections 14 and 38 of the LBSCAct).
A conveyancer is not, as defined by the LBSCAct, an Agent registered under the Land Agents Act and therefore can only sign the certificate on behalf of the Agent and only if authorised by the Agent to do so on his/her behalf. It is also worth noting that a vendor cannot authorise a person to act on behalf of the Agent. Even where a person is authorised by the Agent, the Agent still remains liable for the statement.
Where Part D is not signed by an Agent or by a person authorised to do so by the Agent, the Form 1 is defective and the appropriate steps must be followed to rectify the problem.
Robbins Conveyancing are happy to provide further clarification and advice on the topic and can provide necessary documentation to authorise us to prepare Form 1’s and sign Part D on the Agent’s behalf.
– Lauren Robbins Registered Conveyancer | Owner