We wouldn’t normally talk about this subject, but we’ve had three agents within the last three weeks ask about it. All agents have been approached by the police seeking copies of contracts because the property may be the proceeds of crime.
For some years now, both Commonwealth and State legislation has permitted the confiscation of the proceeds of crime. In short, if you have obtained any asset through money gained through the commission of a crime, the state or federal government can come and take the property back and keep the proceeds. In fact, the National Crime Authority survives off the back of these confiscations.
From what we understand, the police have been requesting a copy of the contract be scanned and sent to them. The agents are concerned that they are breaching their obligation of privacy to the vendor. The first question is whether there is an issue of privacy in the first place.
In NSW, the Property, Stock and Business Agents Act 2002 requires the agent to hold a copy of the contract. This contract is a public document and can be given to any prospective purchaser. In particular, if the property is being sold by auction, these contracts are given prior to the auction for people to obtain legal advice. This means that, any person can walk into your office and seek a copy of the contract.
People can also request this over the telephone of by email. Were a member of the police force to ring you and say they want it for the purpose of a criminal investigation, the agent should be a little careful. Leverage would always suggest that the agent seek the request in writing and also seek under what power they wish the contract to be provided. If they will not provide the request in writing, don’t send it. Let them drive to your office to collect it like any other member of the public.
Although we cannot see how the agent is liable for providing something, which is public to a police officer, you need to put yourself in a position where you have done everything to protect your vendor’s interest. An email asking for the request to be put in writing and noting the powers under which they asked for the contract, means that you’ve taken all steps to protect your client.
Agents might think that this belongs to the cheaper suburbs of NSW. Don’t be so complacent, reports show that the richest suburbs in Sydney have the highest rate of drug offence. This is no longer a low socioeconomic problem. This is the problem of all classes, all races and all suburbs.
This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.
To get in touch with Bailey, please email firstname.lastname@example.org or call 1300 438 538