The Investigation Powers of the Australian Securities and Investments Commission

The Australian Securities and investments commission has extensive powers of investigation and information gathering. These powers are not limited to the exercise of functions under chapter 7 of the corporations act because the Australian securities and investments commission can cooperate with the Australian Stock Exchange in regulation activities.

The body can receive complaints from many informal sources. Of course, complaints may be made to other bodies such as the stock exchange although its responsibilities are limited to VISTA companies and its sanctions are considered to be constrained by their contractual foundation and limited statutory supplements. The Australian Securities and Investments Commission is the principal complaints handling body by reason of its statutory responsibilities and powers given to it under part three of the relevant legislation. The exercise of the statutory powers enables the body to gather information which may used to launch criminal, civil or administrative proceedings relief, remedy or other section. As noted, these powers are not limited to their application to the financial market provisions of chapter 7 but applied to the generality of provisions of the act. However, many complaints received by the commission apply to investigations made upon its own intuitive understanding of events and will not normally involve the exercise of formal powers under part three, unless informal investigation indicates a need some more formal enquiry and the exercise of coercive powers granted to the agency under part three.

An investigation conducted under the investigative powers of the agency has significance not to elicit the information of the widgets triggers for the range of may be founded upon the mere fact of the commencement or upon evidence obtained during the. First, where is the result of an investigation it appears to the agency that a person may have committed an offence against the corporations legislation and ought to be prosecuted for defence, the agency may initiate a prosecution. The agency may require a person other than the the the the water were reasonably believes can give information relevant prosecution to provide assistance. Secondly, where, following an investigation examination under part three, it appears to the agency to be in the public interest per person to sue for damages from his conduct committee in connection with the matter to which investigation examination related, or for the recovery of a person’s property, the agency may commence such proceedings in the person’s name.

Thirdly, the fact that investigation has been initiated permits the agency to seek protective orders. The agency may also release the record of an investigation to a lawyer to the proceedings were at the party, if the commencement of an investigation confer standing to seek statutory remedies of wider application. Sixthly, statements made on an examination are admissible against examinees in criminal proceedings, subject to protective provisions relating to self-incrimination and legal professional privilege. The report of the investigation itself is admissible in civil proceedings as privacy evidence and matters disclosed. So the agency does have a quite broad powers to investigate the misconduct of corporations and to gather information about these issues.

Short Sales: Can A Bank Make A Realtor Cut His Commission?

Can a bank force a real estate agent to reduce his commission on a short sale? When you talk to a bank negotiator reviewing a short sale package, one of the first things you’re likely to hear is “you’re going to have to cut your commission or closing fee”. This is to be expected from professional negotiators trained to use scare tactics in an attempt to minimize a bank’s losses. As of March 1, 2009, Fannie Mae loan servicers cannot require real estate brokers to reduce commissions below 6 percent as a condition for a short sale approval. Even without this recent rule change (which banks often ignore anyway), banks have no authority to alter the terms of a listing agreement, which is a binding legal contract.

Nobody can force an agent to lower his commission, but a bank rep can try to bully an agent or broker into lowering it voluntarily. Here are some of the phony reasons and intimidation tactics bank reps often cite or use to get an agent to lower his commission:

1. “The investor guidelines don’t allow us to pay more than X% for a commission.” Investor guidelines have no bearing on the legal contract a broker signs with a seller. The bank can’t cut your commission, but they have a huge incentive to try to scare you into doing it yourself.

2. “We’re not or our investor is not going to pay for that.” The reality is that in a short sale, the seller’s lender is not paying for anything. The seller’s lender actually receives a check at closing-the buyer or the buyer’s lender actually pays for everything.

3. “If you won’t lower your commission, then the seller will need to get another agent.” It’s up to the seller not the bank to choose an agent to represent them. If someone says this to you, turn the conversation around and ask the bank rep “Are you suggesting that the seller break the legally binding listing contract they signed?” They usually back off real fast.

Real estate is a people business and Realtors are accustomed to trying to make everyone happy. For this reason, agents frequently give in too quickly to unreasonable demands and banks know and exploit this tendency. When you stand up to the bank and calmly explain that under no circumstances are you going to lower your commission, the bank will normally give in. If the bank does not give in, tell them that they can continue paying the taxes and insurance on the property for a few more months or they can get this bad mortgage loan off their books by honoring the terms of your listing agreement.

Why should you accept a lower commission for doing more work? As soon as you start reducing the commission you are contractually owed, the bank is likely to ask you for a bigger concession later on. If the bank believes that they can take advantage of you, they will! Take your stand at the beginning of the negotiation. Banks usually back down-sometimes immediately, in other cases it may take some time. Regardless, as long as you have a good working relationship with your client, you can wait for the bank to come to its senses. Miraculously, banks tend to be much more cooperative and less likely to try to cut commissions the closer a property gets to a foreclosure sale, so stand your ground and get paid the amount that you have earned and are entitled to receive.

Real Estate Agency Best Practice – Protect Your Commission Before You Give Out Details

If you haven’t figured it out yet, the commercial real estate market is like all others when it comes to the competition in your area and people taking your business away from you. Be mindful that contact details given to the wrong person and without some written protection of your commission will likely mean that you loose the deal or loose the client or both.

Trust no one when it comes to your commission. Get all verbal facts and agreements in writing before you release your prospect information; and it’s not just the other agents that you need to worry about.

Experience proves that even clients will take verbal information and use it to their advantage if they can to close the deal directly and avoid commission. This means that you must have a paper trail that supports your claim on commission and the introduction of the prospect. You appointment to act for the client or that of the other agent should be valid and in writing. There is only one way to do things and that is the right way.

If you are approaching another agent to do a conjunction deal on one of their listings, do not presume that they have a valid appointment to act. Ask for some proof or commitment from them before you offer to work with them in conjunction.

Can you trust a verbal agreement from the client or another agent that your introduction of a prospect will be honoured when it comes to commission? No, is the simple answer.

Always back up any verbal agreement by supporting it in writing before you release details of the deal or the prospect to others. Money speaks many languages and influences many decisions. If commission can be saved because the deal with you as the real estate agent is not in writing or evidenced in some way, then expect that such will be the case.

An agreement is not a solid agreement until you have firmly tied it down with written instructions. Many people conveniently forget what was said when it comes to contracts or leases involving lots of money. In commercial real estate that is just about every deal. Expect disagreements and problems, so protect yourself and your commission at all times.

Take your own notes from any verbal instructions or agreements but then take it to the next level and put it in writing. It is quite common to have legal battles when it comes to commercial property, clients, and real estate agents. Critical statements and information must be checked and evidenced back to the source.

In any conjunction with another agent there is a temptation to act on a verbal agreement that the other agent will work with you if you introduce a qualified prospect to their listing. If you know the other agent, the temptation is to do the deal and do the paperwork later. So many commissions have been lost simply with this one situation.

Many clients have said that they will pay you commission if you bring them a purchaser for the property at the right price. Heard that before haven’t you?

So the way you can protect your commissions with other agents is to create a well-crafted letter of conjunction or agreement that can be sent to the other agent at a moment’s notice. It should contain key descriptive details on:

  • Name of the agents involved
  • Details of the owner or of the property
  • Details of the commission
  • Details of how the commission will be paid and by when
  • Date of agreement
  • Signatures of all key parties

Acting on unchecked or incorrect property information will also open the door to debate and legal claim. If you are in the property game long enough, you will be involved with such disputes, and the only way you can protect yourself is by diligence to detail and the evidence of everything. Stay legal and stay safe. You will create better deals.