South Australia agent commission: the 90-day sales agency agreement

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Kooky

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In South Australia an agent's pay for selling a home is not left to a handshake. It rests on one document, the sales agency agreement, and the state's Land and Business (Sale and Conveyancing) Act 1994 says what that document must contain, how long it may run, and what happens to the commission when the rules are not followed. An agent who acts without a compliant agreement may not demand, receive or keep commission or expenses at all.

This guide follows the money through that agreement. It covers who the rules apply to, what the vendor must be handed before signing, what the agreement has to say about fees, separately charged services and rebates, the 90-day limit and the single extension, the difference between a sole agency and a general listing, the limits on what an agent may charge for expenses, the benefits an agent has to disclose, and the situations in which the Act takes the commission away. It draws on the Act in its version dated 15 January 2026, the Land and Business (Sale and Conveyancing) Regulations 2025, and the guidance published by Consumer and Business Services, the South Australian regulator known as CBS.

Land and Business (Sale and Conveyancing) Act 1994 (SA), section 20, and regulation 18 of the 2025 Regulations.

Who and what the rules cover

The detailed rules on sales agency agreements apply to residential land, and the Act defines the term in section 3. It covers land with one or two places of residence on it, or one under construction, and no other improvements; vacant land on which it is lawful to build a residence; a community or strata lot that comprises a single residence; and an exclusive right to occupy a single residence. Land used wholly for non-residential purposes is outside the definition, and so is land of more than 2.5 hectares, unless another area is prescribed.

For everything else the requirement is lighter. Section 20(3) says an agent acting for a vendor in the sale of land other than residential land, or of a business, needs a signed written instrument, with a maximum penalty of A$5,000 for acting without one. The same subsection applies to an agent acting for a purchaser in the sale of land or a business, and on that side it is not limited to non-residential land. The list of terms described in this guide belongs to residential land.

The Act does not define "agent" itself. Section 3 gives the word, and "sales representative", the same meaning as in the Land Agents Act 1994. The CBS guide for vendors says agents, including companies, must be registered under that Act, and the Law Handbook published by the Legal Services Commission of South Australia adds that sales representatives must be registered too.

The 2025 Regulations carve out three groups. Under regulation 18, an auctioneer who acts only by performing the functions of an auctioneer is exempt from the agreement requirement, as are agents acting for the South Australian Housing Trust, the Public Trustee or the Urban Renewal Authority. A third exemption is narrower: where the vendor is a land developer selling land the vendor has subdivided, the agent is exempt from the limit on duration, though not from the rest of section 20.

Before signing: the guide and the comparable sales

Two things have to reach the vendor before the agreement is signed. Section 20(2) requires the agent to give the vendor a written guide in the form approved by the Commissioner, and details of the comparable sales and any other information the agent relied on for the estimate of the selling price. The maximum penalty is A$5,000 and the Act sets an expiation fee of A$315.

The guide is the document CBS publishes as form R1, in a version dated January 2025. It sets out the vendor's rights and obligations under the agreement, and it is where much of the plain-language explanation of commission sits.

CBS's separate leaflet for sellers suggests getting advice from at least three agents. It notes that some agents charge a low commission but more for marketing and advertising.

What the agreement has to state

Section 20(1) is the core of the scheme. An agent must not act for the vendor of residential land unless a sales agency agreement, dated and signed, is in place and states a set list of matters. Acting without one carries a maximum penalty of A$5,000.

The list in the Act, read with regulation 18(2) of the 2025 Regulations, comes to this:

• the land, the full names of the vendor and the agent, and the agent's registration number;
• the chattels included in the sale or excluded from it;
• the agent's genuine estimate of the selling price, as a single figure;
• the price the vendor seeks or will accept, also as a single figure;
• the manner of sale;
• the duration of the agreement, within the prescribed limit;
• the vendor's rights to terminate;
• the services charged separately and their amounts, and any rebates or benefits;
• whether the agreement is a sole agency;
• whether the agent may accept offers on the vendor's behalf;
• the circumstances in which the agent is entitled to commission or fees, including those in which the sale may not be attributable, or not wholly attributable, to the agent;
• a term in which the agent warrants compliance with the Act and the Regulations and undertakes to act in the vendor's best interests.

The Regulations also fix the look of the document: it must be printed or typewritten in type no smaller than 10-point, though a variation may be handwritten if it is legible.

The item on entitlement to commission deserves attention, because it is the one that decides the bill. The provisions read for this guide do not themselves say that commission falls due on exchange, on settlement or on any other event. It requires the agreement to say so, and to deal expressly with the awkward case where a sale happens but the agent's part in it is contested. The form R1 guide puts the same point briefly: the agreement must include when commission or fees are earned. What that moment is depends on the wording each vendor and agent sign.

The authority to accept offers matters for a related reason. The form R1 guide says a contract signed by an authorised agent binds the vendor.

Copies follow quickly. Under section 20(4) the agent must hand over a copy of the signed agreement immediately, or within 48 hours if the vendor and agent agree to that. Any variation must be in writing, dated and signed by the parties under section 20(5). The agent keeps copies of agreements, variations and extensions for five years under sections 20(9) and 37A.

Commission, set fee or both: nothing is fixed

Neither the Act, the Regulations nor the CBS pages read for this guide set a commission rate, a scale or a cap. The state government's page on hiring a professional for house and land sales, last updated on 9 June 2026, says an agent's fee can be a commission worked out as a percentage of the sale price, a set fee, or both. The CBS leaflet is direct about the rest: any fees and terms of the agreement may be negotiated.

The government page gives an illustration of what can be negotiated: a commission penalty if the final price falls below the estimated price, or a bonus if it is higher. Whatever is agreed must be in writing and signed by both parties.

A worked example shows how such a clause changes the bill. The figures are illustrative assumptions, not market rates, and they leave GST aside because the pages read do not address it. Assume the agent's estimate in the agreement is A$720,000 and the agreed commission is 2 per cent of the sale price.

• Flat rate, sale at A$750,000: 2 per cent of A$750,000 is A$15,000.
• Bonus clause, same sale: assume 2 per cent up to the estimate and 10 per cent of anything above it. That is A$14,400 on the first A$720,000 plus A$3,000 on the A$30,000 above it, or A$17,400.
• Penalty clause, sale at A$700,000: assume the rate drops to 1.8 per cent when the price is below the estimate. 1.8 per cent of A$700,000 is A$12,600, against A$14,000 at the flat 2 per cent.

The example also shows why the single-figure estimate matters beyond advertising. When a bonus or a penalty hangs on the estimate, the figure written into the agreement becomes part of the fee formula. The government page states that the estimate can only be a single dollar figure and that price ranges cannot be used.

Ninety days, and one extension

Section 20(1) caps the duration at "the prescribed number of days", and regulation 18(1) sets that number at 90. The form R1 guide is frank about what a term means for the vendor: the vendor may be bound to continue for the whole of it even if unhappy with the service.

What happens at the end is governed by section 20(6a) to (6e), and it turns on one document, the notice of expiry.

If the agent gives no notice of expiry, section 20(6c) is blunt: the agreement ends on its expiry date and cannot be extended.

If a notice is given, the vendor has three courses. The first is to tell the agent, before the expiry date, that the agreement will not be extended; it then ends on that date. The second is an agreed extension, which must be a written, dated and signed agreement made no earlier than 14 days before expiry. Regulation 18(6) sets its length at 90 days, and the government page describes it as an extension of up to 90 days. On those terms the longest agreed arrangement is 90 days plus 90 days, or 180 days.

The third course is silence, and here the sources do not use the same words. Section 20(6a) provides that an agreement not extended by agreement is extended by force of the Act for the prescribed period, and regulation 18(7) sets the figure for that paragraph at 180 days. The government page, updated on 9 June 2026, tells vendors that if they do nothing the agreement will extend automatically, "up to 180 days". The Law Handbook, on a page last revised on 8 October 2018, says the agreement is automatically extended by 180 days. The three statements are not identical: a prescribed period of 180 days in the regulation, an extension by 180 days in the Law Handbook, and an extension of up to 180 days on the government page. None of the pages read says whether the 180 days are counted from the original expiry date or include the first term, and this guide does not settle it; the exact end date is a point to confirm from the Regulations and the agreement itself.

The safeguard is the same on either reading. During an extension the vendor may terminate by written notice without giving any grounds, under section 20(6e). The government page puts the notice at seven days at least, and the Law Handbook also gives seven days; the summary of section 20(6e) read for this guide gave no number of days. A record of any extension must be copied to the vendor, with a maximum penalty of A$5,000 and an expiation fee of A$315 if it is not.

Sole agency or general listing

The agreement must say whether it is a sole agency, and the answer changes when commission is owed.

The government page explains why the open listing is rare: an agent who markets a home under a general agreement may be left bearing the marketing costs if another agent makes the sale.

The risk the guidance stresses under a sole agency is the double commission. The form R1 guide says an agreement can treat a private sale, or a sale through another agent, as a termination, and that the first agent may still be entitled to commission, depending on the agreement. The government page says cancelling early and listing with a new agent could mean paying two commissions, and suggests legal advice before terminating. On the worked figures above, a vendor liable to two agents at an assumed 2 per cent each on a A$750,000 sale would owe A$15,000 twice, or A$30,000. Whether a given vendor is liable in that way turns on the clauses the Regulations require: the termination rights, and the circumstances in which a sale is not attributable to the agent.

Separately charged services and the cap on expenses

Commission is one line of the bill. Advertising and marketing are the other.

The agreement must list the services charged separately and their amounts. The form R1 guide spells this out as who provides each service, how much it costs and when payment falls due.

Section 24D then limits what can be charged. In the sale or purchase of residential land, an agent must not charge the client expenses above the amount paid or payable by the agent, on a maximum penalty of A$20,000. The Act defines expenses as outgoings or proposed outgoings. Benefits the agent receives in connection with those expenses are counted when the amount is worked out, except a contingent benefit that has not yet occurred.

Where the true cost cannot reasonably be known when payment is sought, the agent may estimate it. If the estimate turns out too high, the excess must be repaid immediately, again on a maximum penalty of A$20,000. And where an agent refers the client to a third party, or contracts with one for separately charged services, and receives a benefit for it, section 24D(6) requires the benefit to be paid to the client immediately. Unpaid amounts are recoverable by the client as a debt.

A worked example, on assumed figures. An agent books A$4,000 of advertising for a vendor and the publisher gives the agent a 15 per cent rebate. The rebate is A$600, so the advertising costs the agent A$3,400. Under section 24D, A$3,400 is the most the agent may charge for it, and if the vendor paid A$4,000 on an estimate, A$600 comes back.

There is one exception, and it is the reason the agreement's rebate clause matters. Section 24D(8) says these rules do not apply to a benefit disclosed in the sales agency agreement or under section 24C. A rebate disclosed in that way is therefore outside these section 24D rules. The CBS leaflet states the result from the vendor's side: the agent cannot profit from these expenses beyond what is disclosed in the sales agency agreement.

The benefits an agent must disclose

The CBS leaflet tells vendors that an agent usually gets a rebate on advertising. Disclosure is how the Act deals with it.

In the agreement itself, the guide says the agent must disclose the nature, the source and, if known, the amount or value of any rebate, discount, refund or benefit. The guide adds that a vendor may negotiate a share, and that the agreement can require some or all of a rebate to be returned to the vendor.

Section 24C covers what the agreement does not. It requires the agent to disclose to the client two kinds of benefit: any benefit the agent receives or expects from a third party to whom the agent has referred the client, or with whom the agent has contracted, and any other benefit that any person receives or expects in connection with the sale or purchase. The maximum penalty is A$20,000. Regulation 22 of the 2025 Regulations requires the disclosure to follow the form in Schedule 5, in type no smaller than 12-point.

Some benefits need no separate disclosure under section 24C(3): those already disclosed in the sales agency agreement or under the section, those that come from the client, those that go to the vendor or the purchaser, those for services the agent contracts for without charging the client separately, and those the agent does not know about. For the last, the agent carries the burden of proving the lack of knowledge.

The Act also says how to put a number on a benefit. A benefit that is not money is given a reasonable dollar estimate, and a benefit earned across several transactions is apportioned according to the amounts charged for each. In both sections the word covers a rebate, a discount and a refund.

When commission cannot be claimed

The Act removes the commission in four situations, each written as a ban on demanding, receiving or retaining it.

The first is the widest. Section 20 holds the agreement, the guide, the copies, the variations and the extension rules, and section 20(7) attaches the commission to all of it. Money paid in contravention can be recovered from the agent as a debt under section 20(8).

The second concerns the sale that falls through under the Act. The CBS leaflet gives the everyday case: it is against the law for an agent to be paid commission if a buyer cools off. Section 23(2) contains one exception: where a contract is rescinded under Part 2 of the Act and the same parties then sign another contract for the same land or business, the ban does not apply if commission would have been payable on that later contract.

The third ties pay to honest price advertising. Section 24A defines the prescribed minimum advertising price as the greater of the agent's estimate and the vendor's price in the agreement. A single advertised price must not sit below it; a range must start at or above it and its upper limit must not exceed 110 per cent of the lower. With a minimum advertising price of A$650,000, for example, a range could run no higher than A$715,000. The offence itself carries a maximum of A$20,000 or one year's imprisonment, and the loss of commission and expenses comes on top.

The fourth is the conflict of interest. An agent authorised to sell a property must not obtain a beneficial interest in it, on a maximum penalty of A$50,000 or one year, rising to A$100,000 or two years where the offence is aggravated. It is aggravated, under section 24G(10a), if a vendor was 70 or older, a protected person or under mental incapacity. The only route is advance approval from the Commissioner, and commission may be taken only if the Commissioner has approved both the interest and the receipt of commission. The government page says approval to buy by private offer is granted only in exceptional circumstances. A court may also order the profit paid to the vendor.

Changing or ending the agreement

The CBS leaflet says a signed agreement is binding and can be cancelled only if both parties agree or one of them breaches it. The agreement's own termination clause sets the rest, and the form R1 guide warns that those rights may be limited to certain circumstances or carry termination fees.

Auction sales have a rule of their own. Under section 20(5a) the price the vendor seeks cannot be increased by variation where residential land is to be sold by auction. Section 20(6f) closes the side door: after an early termination or a shortened term, a new agreement for the same land, where it is to be sold by auction, cannot raise that price until the original duration has run, on a maximum penalty of A$5,000.

For disagreements, the form R1 guide sets out two steps: try to resolve the matter with the agent, then go to Consumer and Business Services.

What the sources leave open

Some points are not answered by the pages read for this guide. None of them deals with GST on commission, and none gives a typical or maximum rate, so the figures in the examples above are assumptions only. The Land Agents Act 1994 was not read directly, so its registration rules appear here only as the CBS guide and the Law Handbook describe them. And the length of the automatic extension, described in different words by the regulation, the government page and the Law Handbook, is left as each states it.

The Act sets no price for an agent's work. It sets the paper the price must be written on, and takes the fee away when the paper is wrong.

Kooky, from Shaka

Kooky edits Agents Estate and builds Shaka, the payment router he made for real estate professionals. One payment comes in, and every agent, agency and party in the deal receives their signed share on closing date.

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