Exclusive Agency Agreement WA: What Your Contract Actually Says

The part most sellers miss

Sole and exclusive agency are two arrangements you may encounter. Other selling arrangements also exist, and the label is less important than the terms written into your agreement.

Sellers sometimes assume they can find their own buyer without paying commission, but an exclusive agency agreement may say otherwise.

Check whether the title of your agreement says “exclusive agency”, then read the selected options and special conditions.

Here are the key terms and what they can mean for you.

The lock-in

The agreement states the start and end dates of the exclusive period. Read those dates carefully rather than relying on what is described as “standard”.

During that period, appointing another agent or selling privately may still leave you liable for fees under the agreement. The exact consequences, including any termination fee, depend on the terms you signed and the circumstances. Review the termination provisions and get advice before changing agents.

The period is negotiable. Most people don't negotiate it.

This is why agents push so hard to get the agreement signed at the first meeting. Before you sign, they are competing for your business. They're responsive. They're available. They're selling you on their service.

After you sign, the agreement may protect their fee for the full exclusive period even if you become unhappy with the service. The dynamic changes completely.

When the agent earns their fee

The agreement explains when the agent earns the selling fee. REIWA forms have used the concept of the agent being an effective cause of the sale when defining whether a buyer was introduced. Whether that test is met depends on the agreement and what actually led to the sale. The High Court considered the effective-cause test in LJ Hooker Ltd v WJ Adams Estates (1977).

In practice, advertising, a home open or a direct introduction can form part of an agent's claim. It does not follow that any one of those steps automatically makes the agent the effective cause.

If a buyer:

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  sees your listing online
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  attends a home open
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  then contacts you directly

…the agent can argue they were the effective cause. They ran the advertising and held the home open. Whether that is enough depends on the agreement and the full chain of events leading to the sale.

If that buyer sends a friend or family member instead, the agent may still argue that the selling-fee terms apply. The result turns on the wording and the connection between the agent's work and the eventual sale.

There is one protection worth knowing about. If you appoint a new agent after the exclusive period ends and the new agent is entitled to a fee, some versions of the REIWA agreement say the original agent will not be entitled to a selling fee under the relevant introduction and post-expiry terms. Check that protection exists in your version. It only applies after the exclusive period.

Marketing costs and your trust account

Before your property goes live, the agent may ask for money upfront for marketing. This is known as vendor-paid advertising (VPA). The amount varies widely depending on what services you choose. It could be $1,000 or it could be $5,000.

That money goes into a trust account. The agent can only invoice you for costs actually incurred. Unused funds must be returned.

If you pull the property off the market early or terminate the agreement, you must reimburse all expenses already spent. But you're not liable for the full amount. Only what was actually used.

The risk is that most of the marketing spend happens early: photography, floorplan, and property website listing fees. By the time you realise you want to switch agents, most of it has already been spent.

What catches sellers off guard is the total cost. The VPA you pay upfront is separate from the commission you pay at settlement. On the Perth median sale (~$1,050,000), you're looking at thousands in marketing plus 2.5% commission at settlement. And you don't always know exactly where the marketing money went.

There is also no cooling-off period for agency agreements in WA. Once you sign, the written authority is legally binding, subject to its terms and applicable consumer law.

Read more about how VPA works, what it should cost, and what to ask for.

The tail

This one catches people off guard.

If a buyer is introduced during the agreement period and later buys the property within the tail period written into the agreement, the agent may still claim commission. Entitlement depends on the signed terms and whether the contractual requirements are met; it is not automatic merely because the buyer saw the property earlier.

There's a date field that controls how long this applies for. Most sellers never notice it. Make sure it is discussed and completed before you sign.

Do not assume there is a standard tail period or that a blank field will operate in your favour. Check the selected option and any date entered. A long date can extend the potential claim well beyond the working relationship.

This is negotiable. Ask what the tail period is, ask for it to be reasonable, and make sure you see the selected option and date before you sign.

You find the buyer, you may still pay

Some versions of the agreement present this as a choice:

The seller WILL or WILL NOT be liable for commission if they introduce the buyer themselves. Your version may express the same issue differently.

If “WILL” is selected, you pay full commission either way.

You find the buyer → you still pay.

On the Perth median sale price (~$1,050,000at 2.5%), that's around $26,250. For a conversation you might have had yourself.

Ask for “WILL NOT” before you sign. Many agents will push back. This term directly protects their commission and there's little incentive on their side to remove it. How they respond tells you something about how the rest of the relationship will go.

The double fee scenario

If you appoint another agent during the exclusive period and they sell the property:

The first agreement may treat that as a termination.

Which means:

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  You may owe the first agent a termination amount or selling fee
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  You may also owe the second agent their fee

What this looks like in practice

You have more leverage than you think

The commercial terms highlighted in this article can be discussed before signing. The agent wants your listing. Before you sign, you have leverage. Use it.

Here's what you can negotiate:

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  Keep the lock-in reasonable. For a typical Perth campaign, an initial exclusive period longer than 90 days is difficult to justify. Ask why the agent needs more time before you agree to it.
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  Seller-introduced buyer. Ask the agent to select the option that means you will not pay commission on a buyer you find yourself. Expect pushback. This term protects their fee. Ask anyway.
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  Shorter tail period. Ask for 30 days instead of 90. Check the date field before you sign.
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  Itemised marketing costs. Ask for a line-by-line breakdown of what the VPA covers. Know what you're paying for before the money leaves your account.

If the agent says “it's all standard” and won't discuss changes, that tells you something about how they'll treat you during the campaign.

Read it before you sign it

REIWA Form 109 is a standard contract. Standard doesn't mean neutral. It means it was written by the industry, for the industry.

Understand what you're agreeing to. Once signed, the agreement is generally binding, but enforceability and termination rights depend on the contract, the circumstances and applicable law. Get legal advice if there is a dispute.

Before you sign, make sure you understand what you'll actually pay in agent fees. If you want a KeyHive appraisal before committing, start here: See what my property is worth.