Real estate professionals charged with a criminal offence. What are the consequences and do you have to disclose this?

Article by Craig DoRozario

Who does this apply to?

In Queensland, all practising real estate agents, auctioneers and resident letting agents (eg most on-site managers for bodies corporate) must hold relevant licences and comply with the rules set out under the Property Occupations Act 2014 (Qld) (“the Act”). Real estate agents in Northern New South Wales and other parts of Australia are not subject to this Act, however similar legislation may exist in other states and territories. While we are able to assist real estate agents outside of Queensland, this article applies only to those who are currently practising, or wish to practise, within the borders of Queensland.

Am I eligible to apply for a real estate licence? Do I need to disclose my charges or convictions?

Section 34 of the Act provides that a person is unsuitable to hold a licence if they have been convicted of a serious offence within the 5 years prior to making the application. It is irrelevant if the conviction was in Queensland, elsewhere in Australia, or overseas. A serious offence is an offence punishable by 3 years or more of imprisonment which also:

• involves fraud or dishonesty;
• involves the trafficking of drugs;
• involves the use or threatened use of violence;
• an offence of a sexual nature;
• extortion;
• arson;
• or unlawful stalking.

These are some of the most stringent rules for any profession in the state. It is immaterial if the actual sentence was far less than the 3 years. Even if no term of imprisonment was ordered, as long as the conviction is for one of the categories listed and that offence has a maximum penalty of 3 years, a person is unsuitable to hold a licence.

The above unsuitability applies to both applicants and current licence holders. Upon a conviction of a serious offence, a person’s licence is immediately cancelled pursuant to section 77(1)(a) of the Act.

However, if you are convicted of a serious offence, you may not necessarily be deemed unsuitable if the conviction was not recorded. In other words, if you are convicted after a trial or a plea of guilty of a serious offence, but the conviction is not recorded, you may still be eligible to practise as a real estate agent. If your criminal proceedings are still ongoing, you should contact us immediately so we can assist you in both your criminal proceedings as well as any disciplinary proceedings that arise.

If your criminal proceedings have been finalised and no conviction was recorded, there could still be disciplinary action taken against you. Under section 36 of the Act, your character must be taken into account when issuing you with a licence (or renewing your licence pursuant to sections 58 and 59). As such, we are able to assist with making submissions with your application on why you are suitable to hold a licence.

What happens if I don’t disclose my criminal history?

When you are applying for a licence, you are obliged to consent to and pay for a criminal history check to be undertaken. As such, it is not possible to hide any convictions.

I am already a licenced real estate agent, do I need to disclose my criminal charges or convictions?

If you already have a licence and are not applying for a renewal, there is no positive obligation under the Act which requires you to make a disclosure of a recorded conviction. However, if you have been convicted of an offence which falls under the classification of a serious offence under the Act, you are automatically unsuitable to hold a licence (although this could be contested in your favour if the conviction was not recorded), and it is possible for you to be consequently charged with a variety of criminal offences with serious consequences attached. We urge you to seek legal advice on this as soon as possible, preferably before your trial or agreement to plead guilty to an offence, to avoid further charges being laid against you.

What about when I am renewing my registration?

When you are renewing your registration, your suitability to hold a licence will be reconsidered. As such, you must agree to a criminal history check which will highlight any criminal convictions. If these convictions fall within the category of a serious offence as defined under the Act, you will likely be unsuitable (except where no conviction is recorded, where your suitability can be contested).

If I have a criminal conviction, will I be prohibited from practising as a real estate agent?

If you are convicted with an offence which falls outside the scope of a serious offence as defined within the Act, you will not be prohibited from holding a licence. However, there could be contentions made about your character, and hence we are able to assist you in making your application for a licence or to renew a licence. If you have been convicted of a serious offence within the definition provided, and the conviction has been recorded, then you will be prohibited from holding a licence for 5 years from the date of the conviction. If you have been convicted of a serious offence within the definition provided, but the conviction was not recorded, there is no clear cut answer, and you must seek legal advice..

Please note that this advice is for general background information only and is not intended as legal advice you can rely on. To obtain legal advice you can rely on you must contact a lawyer who can advise you on the basis of your personal circumstances.