Exclusive vs Open Listing in Queensland: Commission Implications for Agents

A seller signs with you on an open listing, then calls three days later to say another agent just put a contract on the property. You worked the inquiry pipeline for two weeks. The question of whether you see any commission at all now turns on three words: effective cause of sale. Understanding precisely how Queensland’s three listing types distribute commission risk — between agent and client, and between competing agents — is not optional knowledge. It sits at the centre of every Form 6 you ever execute.

The Three Listing Types Under the Property Occupations Act 2014

Queensland’s Property Occupations Act 2014 (Qld) (the Act) provides the legislative framework for all agent appointments. The Property Occupations Form 6 provides three appointment types to choose from. These are exclusive agency, sole agency, and open listing — and each creates a materially different set of commission entitlements.

It is worth being precise at the outset: it must be clear on the PO Form 6 exactly what type of listing the client has agreed to and from what date. When both open and exclusive listing are ticked, it becomes confusing for everyone involved about what type of appointment it is and, particularly for an exclusive listing, which date that appointment ends. This is not an administrative nicety — an ambiguous or dual-ticked Form 6 creates real jeopardy for your commission.

Exclusive Agency

Exclusive agency means the real estate agent has the right to claim the agreed commission for the sale of the property, whether or not they are the effective cause of the sale. Under an exclusive agency agreement, the agent can claim commission even if the seller sells the property themselves, or it is sold through another agent.

This is the broadest protection an agent can hold. The commission entitlement follows the appointment, not the transaction’s originating act. If the property sells — by any means, through any channel — during the exclusive term, the agent is entitled to the agreed fee. Sellers signing this arrangement must understand it fully, which is why the Act requires agents to communicate the circumstances and consequences of a sole or exclusive agency clearly before the client commits.

Sole Agency

Sole agency is similar to exclusive agency, in that the agent can still claim commission if the property is sold by another agent. However, in a sole agency, the agent cannot claim commission if it is sold by the owner.

The distinction is narrow but consequential. A seller who has a genuine prospect of their own — a neighbour, a family contact — retains the right to transact privately under a sole agency without incurring a commission liability. That same sale under an exclusive agency would trigger the agent’s fee. Agents should ensure clients understand that distinction before electing sole over exclusive; it is a real distinction, not a technical one.

If a competing agent is brought into the picture during a sole agency term, the existing agent is entitled to the agreed commission — so the seller may end up paying commission twice. This is not a trap for sellers who understand the appointment. It is the logical consequence of a binding agreement. Agents should walk clients through this scenario explicitly at listing, and the Form 6 itself contains prescribed language explaining it.

Open Listing

More than one agent can be engaged through an open listing agreement, but only the agent who is the effective cause of sale can claim commission for the sale.

An open listing agreement does not require a specified end date and may be terminated at any time by either the agent or the client, provided it is done so in writing. That flexibility is the structural trade-off: the seller retains maximum control, the agent accepts significant commission uncertainty.

The open listing is the default into which many exclusive and sole appointments convert at the end of their term. The appointment may provide that at the end of the term of the sole or exclusive agency, it continues under the terms of an open listing that may be ended at any time by the client or agent. Agents accepting that rollover clause need to be clear-eyed about what it means for their exposure — they are no longer protected from competing appointments the moment the exclusive term expires.

How Commission Entitlement Flows Under Each Type

The difference between listing types is most sharply felt at the moment of sale. The same property, the same contract price, the same commission percentage — three entirely different outcomes depending on what was ticked in Part 3 of the Form 6.

Under Exclusive Agency: Commission Is Tied to the Appointment

If the property is sold during the term of appointment, the agent is entitled to the agreed commission regardless of whether the property is sold by the agent, another agent, or the owner personally. The agent does not need to prove they were the cause of the sale. The appointment creates the entitlement.

After the term ends, the protection narrows. If the property is sold after the term of appointment, the agent is entitled to the agreed commission if the agent is the effective cause of the sale. This tail liability for sellers — and the corresponding residual commission right for agents — underscores why termination dates and what happens post-expiry must be clearly documented on the Form 6. Agents who invest heavily in marketing during an exclusive term should not lose that entitlement simply because the contract exchanges a day after expiry, provided their earlier work was the operative cause.

Under Open Listing: Effective Cause Is Everything

On an open listing, commission entitlement rises and falls entirely on the concept of effective cause of sale. The agent who introduces the ultimately successful buyer, and whose introduction is the real and substantial cause of the sale proceeding, is the agent entitled to the commission. The agent whose introduction was incidental, superseded, or simply not operative at the time of contract has no claim.

This is not a binary test. Queensland courts have confirmed that an agent can be an effective cause of a sale without being the only cause. In deciding whether the agent was the effective cause of sale, the Court referred to authorities which demonstrated that an agent may be the effective cause of sale whether it is the sole cause of the sale or an effective cause of sale, among other causes.

The 2024 Queensland District Court decision of Podium Project Marketing Pty Ltd v B Global (Aust) Pty Ltd [2024] QDC 219 is instructive. The District Court examined a real estate agent’s entitlement to commission in circumstances where it was engaged to sell residential lots in a development on the basis of an open listing and had engaged various entities to act as sub-agents to identify and secure buyers. The defendant property developer appointed the plaintiff sales agent as its non-exclusive agent for the sale of 60 lots in a development pursuant to three Property Occupations Form 6 Appointments. The case confirmed that being the effective cause of sale on an open listing is a question of fact assessed holistically, not a mechanical checklist.

Under an open listing, the seller who sells privately — without any involvement from any appointed agent — owes no commission at all. If the client sells the property privately and the agent is not the effective cause of sale — the purchaser did not contact the agent, did not attend open house inspections, etc. — the commission is not payable. This is the seller’s principal protection under an open listing and the agent’s principal risk.

The 90-Day Cap and Reappointment Rules for Exclusive Listings

For Queensland agents working with residential property, the statutory cap on exclusive and sole agency terms is a compliance point that regularly causes commission disputes.

An appointment for the sale of residential property will be rendered ineffective from the time it is made if the term of the appointment is more than 90 days pursuant to the POA s 112(1). In addition, an appointment for a sole or exclusive agency must include a statement in writing whether the appointment is for a sole or exclusive agency, and the day the appointment ends; and the term of the appointment, not being more than 90 days.

The rule is strict. An exclusive appointment drafted for 120 days on a residential property is not merely invalid for the excess period — it is rendered ineffective from the outset. The agent cannot simply rely on the first 90 days as though the excess language were severable. Without a valid appointment in place, an agent is not entitled to claim commission for services they purport to provide and faces penalties of 200 penalty units.

Reappointment after the initial term is available, but the timing rules are precise. At the end of a sole or exclusive agency for the sale of a residential property an agent may be reappointed for a sole or exclusive agency for one or more terms of not more than 90 days. However, agents must not be reappointed under a sole or exclusive agency earlier than 14 days before the term of the sole or exclusive agency ends. The reappointment of an agent within that timeframe amounts to an offence under the POA and renders the reappointment ineffective.

For agents managing multiple active listings, this 14-day reappointment window should be a calendar event, not something discovered on expiry day. A missed window that forces an unexpected rollover to open listing status can unravel months of relationship work and expose commission to competitive risk.

Commission Specification: The GST Requirement That Trips Agents

Regardless of listing type, the way commission is expressed on the Form 6 carries its own compliance obligation. A common mistake includes listing the commission payable to the agent as an amount which excludes GST, such as “3% of total sale price + GST”. The commission payable must be inclusive of GST — for example, 3.3% (inclu GST), based on an actual sales price.

The reason this matters to commission recovery is direct: if the wrong form is used, there is a risk that the appointment will not be valid. Without a valid appointment, the client will not be required to pay a commission for your services. The same logic applies to a correctly-selected listing type but an improperly expressed commission figure. The REIQ’s professional indemnity scheme regularly sees claims originating from Form 6 errors that could have been avoided.

The Office of Fair Trading has flagged this in compliance operations. During a recent audit, OFT investigators picked up a commission noted on the PO Form 6 text which stated “2.95 per cent of the contract price, negotiable on all sales at time of contract”. This is not acceptable. To use wording like this, the agent would have needed to provide further explanation. Vague or negotiable commission figures create the same risks: ambiguity about entitlement and grounds for a seller to resist payment.

It is therefore critical that sales agents ensure that the PO Form 6 Appointment has been correctly completed and complies with all legislative requirements. That includes the commission expression, the listing type selection, the term dates, and the GST-inclusive wording — all of which must align on the current, approved form.

Transitioning Between Listing Types: What Sellers and Agents Get Wrong

Sellers sometimes attempt to change listing type mid-appointment — typically from exclusive to open, wanting to bring additional agents on board if the property hasn’t sold quickly. This is one of the more legally complex situations an agent encounters, and it requires careful handling of both the Form 6 documentation and the client relationship.

Property agents must ensure they get written instructions from their client before varying a list price. The price is set initially in Section 4, Part 3 of the PO Form 6 or Form 6A. If the client agrees to vary the list price after signing the Appointment, the agent needs to get this in writing. This could be via email or even by text message (SMS), but verbal confirmation is insufficient. The same principle applies to any material variation in the appointment, including listing type.

An agent cannot unilaterally convert an exclusive appointment to an open listing to accommodate a seller’s request without proper documentation. The variation must be recorded, initialled, and dated. Where the change is substantive enough to constitute a new appointment rather than an amendment, a fresh Form 6 is the appropriate instrument. Agents who handle this sloppily — a phone call, an email that doesn’t make the Form 6 amendment — risk their entitlement to commission for work performed between the purported variation and formal documentation.

The scenario where an appointment for a sole or exclusive agency expires and the seller wants to bring in multiple agents is specifically contemplated by the Act. If a sole or exclusive agency has been selected, the seller must advise if they agree to the appointment continuing as an open listing after the term ends. This is a decision to be made at the time of the original appointment, documented on the Form 6 itself — not negotiated retroactively when the exclusive term is running out.

Open Listing Risks and the Practical Commission Calculus

Experienced Queensland agents understand that open listings tend to attract less committed effort. The investment calculus is straightforward: an agent who cannot guarantee commission recovery against their marketing spend is less likely to allocate significant resources to the campaign. This is not an indictment of agents — it is a rational response to commercial uncertainty.

From the agent’s perspective, the practical risks of an open listing include:

• A competing agent presenting the same buyer the agent has been nurturing — and if that competing agent brings the buyer to contract first, the commission argument can become genuinely contested.
• The seller transacting privately with a buyer the agent introduced at an open home, later claiming the agent was not the effective cause of sale.
• An unconditional contract falling over, and the question of who conducted what work before and after the collapse.

The Podium Project Marketing decision is a useful reference point for agents working on open listings, particularly in project marketing or off-the-plan contexts. The Court found that the developer authorised, impliedly or by acquiescence, the agent’s use of sub-agents to secure contracts for the sale of lots where the developer knew prior to the first appointment of the agent that it intended to use sub-agents to assist it to find buyers and secure contracts of sale. For agents operating with informal sub-agent or referral arrangements, the message is clear: authorisation — express or implied — matters, and the Form 6 documentation should reflect the actual commercial arrangement wherever possible.

The absence of an end date on an open listing is also a double-edged feature. While it gives the seller flexibility to terminate, an open listing agreement does not require an end date, and may be terminated at any time in writing by either the agent or the client. An agent who has worked a listing for months under an open listing can have the appointment terminated without notice, losing commission protection for any work that subsequently leads to a sale — unless they can establish they were the effective cause of that sale.

What This Means for Queensland Agents

The choice between exclusive, sole, and open listing is not merely an administrative tick-box on the Form 6 — it determines your legal position at the moment a sale occurs and commission becomes payable.

For agents in a listing presentation, the conversation about listing type should be substantive and documented. Clients who push back on an exclusive appointment in favour of open listing should be clearly advised of the practical consequences: lower committed effort from the market, contested commission positions if multiple agents are in play, and no guarantee that the agent who generated the buyer gets paid. That is the seller’s right to choose — but the choice should be informed.

For agents working under open listings, maintain granular records of all buyer interactions: inspection registrations, email and phone contact logs, the specific communications that establish your role as the operative introduction. These records are your commission evidence if the effective cause of sale is ever contested.

On term management for exclusive and sole appointments: build the 14-day reappointment window into your CRM as a non-negotiable task. Acting inside that window is the only path to a legally effective reappointment. Acting outside it means the reappointment is void and the appointment defaults to open listing status from that point.

On commission expression: write it inclusively of GST, clearly, without qualifications like “negotiable” unless the Form 6 contains a sufficiently detailed explanation of what that means and under what circumstances. The OFT has made clear this is an area of active compliance scrutiny. A commission figure that is ambiguous or technically non-compliant is a commission that may not be recoverable.

Finally, ensure the Form 6 used on every appointment from 1 May 2024 onwards is the current approved version. Should the parties use the incorrect form, they risk the appointment being invalid, which may cost the agent their commission in addition to affecting particular rights and obligations for the parties. There is no legislative grace for using an outdated form — validity is assessed at the time the appointment is made.