Buyer's agencies and property developers can both provide real-estate designated services, but not under an identical model. A buyer's agent brokering an acquisition falls within table 5 item 1 and has both buyer and seller as AML/CTF customers once each service begins. A developer or other business directly selling real estate without an independent external agent can fall within table 5 item 2, where the buyer or transferee is the customer. Off-the-plan sales, subdivisions, house-and-land products and specified long-term property interests can be relevant. The analysis turns on the actual seller, agency arrangement and course of business, not the marketing brand or whether a separate sales entity appears on a brochure.
Apply the two-customer rule to buyer's agents
A buyer's agent brokers the purchase or transfer for its represented buyer. Under table 5 item 1, the buyer or transferee and seller or transferor are both customers of the designated brokering service. The service to the buyer can start when the engagement to find or acquire property begins. The seller-side service arises when a particular sale or transfer is reasonably expected on the facts.
Initial buyer CDD should therefore be designed into engagement, not left until a property is found. When a transaction becomes concrete, create the seller customer record and follow the counterparty process. Make clear that gathering statutory information from the seller does not mean the buyer's agent acts for or advises the seller.
Identify direct developer and business sales
Table 5 item 2 can apply where a person sells or transfers real estate in the course of a business of selling real estate and the transaction is not brokered by an independent real-estate agent. AUSTRAC's guidance includes developers selling new houses, land, subdivisions or off-the-plan interests through an in-house process. For this direct-sale item, the buyer or transferee is the customer.
A one-off private or incidental disposal of a business asset may not amount to carrying on a business of selling real estate, but labels are not decisive. Examine repetition, development purpose, business model, sales function and the legal seller. A group should map each project entity and sales channel rather than assume the parent company's industry classification resolves every transaction.
Test whether an independent agent changes the service
Where a genuinely independent external agent brokers the sale, that agent can provide the table 5 item 1 service and the developer's direct-sale item 2 may not apply to the same transaction. An in-house team, related entity or branded sales channel should not be called independent without examining contracts, control, authority, remuneration and actual conduct.
Document who contracts with the buyer, who lists and negotiates, who accepts offers, who controls staff and who bears the agency obligations. Even if item 2 does not apply because of an independent broker, the developer may separately provide another designated service through financing, entity, trust or property-control activities. Scope those services independently.
Recognise off-the-plan and non-cash variations
An off-the-plan interest can be real estate for AML/CTF purposes even before construction finishes or title issues. Grant or transfer of specified long-term leases and land-use entitlements can also be included. No consideration is required for every captured transfer. Obtain the contract, title or plan information and classify the legal interest rather than assuming only settled freehold property is relevant.
Nomination, assignment, rescission and resale can change the customer, beneficial owner, purpose or risk. Establish who will take title and who provides funds, and reassess when the named purchaser or controller changes. A nominee clause should not allow the ultimate acquirer to remain unidentified until settlement.
Build CDD and risk controls into the sales journey
For direct sales, record the point at which the buyer commits or the parties otherwise reach the transaction milestone identified by the program. Complete identity, authority, ownership and control, purpose, PEP and sanctions checks using customer-type procedures. For a buyer's agent, do this for its buyer from engagement and activate the seller workflow when the second service begins.
Escalate unexplained third-party funding, opaque entity buyers, bulk purchases inconsistent with profile, rapid nomination changes, unusual discounts or premiums, offshore layers without a clear purpose and reluctance to identify the person controlling the purchase. Apply enhanced CDD proportionately and preserve the business explanation, evidence, approval and reporting decision.
Official sources
Confirm the current rules against these primary sources.
Questions
Does a buyer's agent have to treat the seller as a customer?
Yes, once the seller-side table 5 item 1 service begins. Both buyer and seller are statutory customers of the brokering service, although only the buyer appointed the agent. Use clear counterparty language and the current delayed-CDD rules where every condition is met.
Is every company selling a property a regulated developer?
No. Item 2 requires sale or transfer in the course of a business of selling real estate and considers whether an independent agent brokers the transaction. A genuine incidental asset disposal can differ. Record the business model, frequency, purpose and sales arrangement.
Are off-the-plan sales covered before title exists?
They can be. AUSTRAC includes off-the-plan and subdivision sales in its developer guidance. Classify the contractual property interest and transaction and identify the buyer at the relevant start point rather than waiting for construction completion or settlement.
Does using an external agent remove every developer AML/CTF obligation?
No. It may change whether the direct real-estate sale item applies, but the relationship must be genuinely independent and other designated services may remain. The developer should document the channel analysis and separately scope financing, entity, trust or property-control work.
General information for Australian professionals, not legal advice. It does not replace the AML/CTF Act, the Rules or AUSTRAC guidance. See our editorial standards.
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