The 90-Day Cap on Exclusive Appointments in Queensland: What Agents Get Wrong
A seller signs a Form 6 for an exclusive agency. The property sits on the market for four months. The agent assumed the appointment rolls over automatically, so nobody bothers to reappoint. A contract is signed in month four — and then the commission dispute begins.
This scenario plays out across Queensland offices regularly. The 90-day cap on exclusive appointments under the Property Occupations Act 2014 (Qld) (PO Act) is one of the best-known rules in residential sales, yet it generates a disproportionate share of commission disputes and invalid appointment problems. The mechanics are deceptively simple. The errors agents make are surprisingly consistent.
The Legislative Foundation
Under s 112(1) of the PO Act, an appointment for the sale of residential property is rendered ineffective from the time it is made if the term of the appointment exceeds 90 days. This is not a soft guideline or an industry convention — it is a hard statutory invalidation. An exclusive or sole agency appointment that nominates a term of, say, 120 days does not simply get trimmed to 90 days. It is ineffective from the moment it is signed.
The PO Act requires that an appointment for a sole or exclusive agency must include a statement in writing as to whether the appointment is for a sole or exclusive agency, the day the appointment ends, and a term of not more than 90 days. Each of these elements is mandatory. An appointment that is missing any one of them does not comply with the Act’s general validity requirements under s 104, and s 112(4) of the PO Act mandates that any appointment is ineffective from the time it is made if it does not comply with s 104.
The consequences of an ineffective appointment are serious. QCAT dismissed an agent’s commission claim in 2016 because the agent used an outdated PAMDA Form 22a appointment rather than the POA Form 6, holding that the failure to use the appropriate form meant the agent was not formally appointed by the client. The principle extends to any defect that renders the appointment ineffective — including a term that exceeds the statutory maximum.
What the Cap Actually Applies To
The 90-day maximum applies specifically to residential property sales under a sole or exclusive agency. It does not apply everywhere, and agents who work across market segments need to keep the boundaries clear.
Agents may be appointed as an exclusive agency, sole agency, or open listing. If appointed on a sole or exclusive agency basis, the maximum term for the appointment is 90 days — except in a commercial sale appointment. The commercial exclusion matters. From 1 May 2024, the existing single Form 6 used for both residential and commercial appointments was split into two forms: the new Form 6 for residential and Form 6A for commercial. The 90-day residential cap does not carry over to commercial appointments documented on Form 6A — those parties have more flexibility to negotiate the term. Agents working with mixed portfolios should not conflate the two regimes.
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. The cap is therefore irrelevant to open listings. An agent who lists a property on an open basis — accepting that they will only earn commission as the effective cause of sale — has no maximum term to worry about. The 90-day restriction is the price of exclusivity.
It is also worth noting the distinction between exclusive and sole agency, which the Act draws explicitly. Under an exclusive agency, 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 sale — meaning the agent can claim commission even if the seller sells the property themselves or it is sold through another agent. A sole agency is similar in that the agent can still potentially claim commission if another agent sells the property, but unlike an exclusive agency, the agent is not entitled to commission if the client sells it themselves. Both appointment types are subject to the 90-day cap.
The Disclosure Obligation Before Signing
The cap does not operate in isolation. Before a client signs a Form 6 for a sole or exclusive agency, the agent has specific pre-appointment disclosure obligations under s 103 of the PO Act.
Under s 103 of the PO Act, for an appointment for the sale of residential property other than a commercial scale appointment, the agent must discuss with the client their entitlement to negotiate a term of the appointment up to a maximum of 90 days, and the consequences for the client if the property is sold by someone other than the agent during the term of the appointment. These are not box-ticking formalities. The agent must actually have the conversation and document that they have done so.
Failing to comply with s 103 of the PO Act may result in fines of 200 penalty units. At the current penalty unit value in Queensland, that represents a substantial financial exposure. Beyond the fine, a failure to properly discharge the s 103 disclosure can undermine the validity of the entire appointment — which puts the commission at risk regardless of whether the agent ultimately sells the property.
The agent should obtain written acknowledgement from their client as to these matters discussed upfront, as a form of protection for the agent. The Form 6 itself includes a client acknowledgement that these matters have been discussed. Agents who rush past this section, or who have the client sign without a genuine conversation, are creating a vulnerability that could surface months later in a commission dispute.
What the 90 Days Actually Means: Three Agent Misconceptions
Misconception 1: “The appointment just keeps running”
The most common error is treating an expired exclusive appointment as though it continues to operate. It does not. 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. Alternatively, at the end of a sole or exclusive agency for the sale of residential property, an agent may be reappointed for a sole or exclusive agency for one or more terms of not more than 90 days.
This means there are two legitimate pathways when the 90-day term expires. First, the Form 6 can be structured at signing to convert automatically to an open listing on expiry. Second, the agent can formally reappoint. What the agent cannot do is simply keep operating as though the exclusive appointment is still on foot. If the Form 6 does not specify that it rolls to an open listing, and the agent has not completed a reappointment, the exclusive protection has lapsed. If a sole or exclusive agency is selected, the parties must also select whether the appointment will continue as an open listing at the expiry. This is a decision point that must be addressed at signing — not improvised when the 90 days runs out.
Misconception 2: “We can extend it whenever we want”
The second common error is attempting to extend the exclusive term too early. The parties can extend an exclusive or sole agency beyond 90 days, but this can only be done in the last 14 days of the agreement. An extension signed at day 30 or day 60 is not a valid extension of the exclusive period under the PO Act — it is a new appointment, which resets the clock. Agents who want continuous exclusive protection for longer than 90 days must manage the timing of their reappointment carefully. The reappointment window opens at day 76 of a 90-day term and closes at expiry.
Misconception 3: “The cap applies to all property types”
As discussed above, the residential cap does not apply to commercial appointments. It also does not apply to what the Act defines as a commercial scale appointment — which is an appointment for the sale of residential property under a sole or exclusive agency that meets certain threshold criteria (typically involving multiple properties or high aggregate value, as defined in Schedule 2 of the PO Act). The commercial scale carve-out is narrow and rarely applies to standard residential listings. Agents who assume a large-value residential property automatically qualifies should verify the specific criteria before relying on it.
Reappointment: The Correct Process
An agent can enter a single appointment for one-off services including selling houses. To renew a single appointment, the agent and client must fill out the reappointment section of the same appointment form they signed. This is an important practical point. Reappointment is not a matter of sending a letter or a text message confirming the seller still wants to list. It requires completion of the formal reappointment section of the Form 6, signed by both parties.
From 1 May 2024, a residential property agent and their client must fill out the correct Form 6 to have a valid appointment. Agents cannot represent clients unless they are properly appointed. This applies equally to original appointments and reappointments. An agent who informally “extends” an expired listing by a phone call or an email chain has no valid appointment in place during that period.
For appointments of 60 days or more, early termination by one party is subject to notice requirements. For appointments of 60 days or more, either party can end the appointment by giving 30 days written notice, but the appointment must run for at least 60 days unless both parties agree to an earlier end date. This has practical implications for sellers who want to switch agents before the 90-day term expires. An agent on a 90-day exclusive cannot simply be dismissed on day 45 without the agent’s agreement — they are entitled to the remainder of the minimum 60-day period.
The Open Listing Transition: Planning Ahead
The decision about what happens when the exclusive term expires is one agents often leave to chance. The Form 6 requires both parties to elect, at the time of signing, whether the appointment will transition to an open listing at the end of the exclusive or sole agency period. This is not optional — it is a decision that must be documented in the appointment.
Where the appointment is not a sole or exclusive agency — that is, an open listing — the appointment may be terminated by either party at any time by written notice, unless the parties agree in writing to an earlier day for the appointment to end. Once a property falls to an open listing, the client is free to appoint other agents. The original agent retains the ability to earn commission if they can demonstrate they were the effective cause of sale, but they no longer have exclusive protection. Agents who invest significant time and marketing spend in a listing have a legitimate interest in structuring the post-expiry terms carefully.
A seller who insists on a shorter initial exclusive term — say 45 days — may be willing to agree to a rollover to an open listing rather than allowing a reappointment. That is the seller’s right, and the agent cannot insist on anything beyond what the legislation permits. What the agent can do is have a clear, documented conversation at signing about expectations for what happens if the property has not sold by day 90.
Consequences of Getting It Wrong
The commission exposure from an invalid or expired appointment is not theoretical. As solicitors for the REIQ Professional Indemnity Scheme have noted, many claims arise due to incorrectly completed Form 6 Appointments. Common mistakes include listing commission as an amount which excludes GST — commission must be expressed inclusive of GST. Appointment defects of all kinds — including term-related defects — sit in this same category of Form 6 errors that have cost agents their commission entitlement in tribunal proceedings.
It is critical that the Form 6 is filled out correctly. An incomplete form may impact the real estate agent’s ability to claim commission for the sale of the property. “Incomplete” includes failing to specify the end date of an exclusive appointment, failing to elect what happens on expiry, and drafting a term that exceeds 90 days. Each of these errors can be fatal to a commission claim.
The principal of the agency bears ultimate responsibility for compliance. Individual salespersons operating under the principal’s licence should understand that a defective Form 6 — whether caused by rushing the client through signing or simply not knowing the rules — can unwind a commission on a property worth hundreds of thousands of dollars.
The Commercial Scale Exception in Practice
The commercial scale appointment carve-out is defined in Schedule 2 of the PO Act and deserves attention for agents working with high-volume or multi-property sellers. A commercial scale appointment is an appointment for the sale of residential property under a sole or exclusive agency that involves the sale of three or more lots under a single development or a similar qualifying threshold. In these circumstances, the 90-day cap does not apply in the same way as for standard residential listings.
This carve-out is relevant to agents working with property developers selling off-the-plan lots, project marketers, and similar operators. The commercial Form 6A rather than the residential Form 6 governs commercial appointments, and different term rules apply. Agents who service both residential listing clients and developer clients need to ensure they are using the correct form and applying the correct term rules for each engagement.
What This Means for Queensland Agents
The 90-day cap on exclusive appointments is a compliance obligation with direct financial consequences. Getting it right requires attention at three points: signing, management, and expiry.
At signing: Confirm the appointment term is 90 days or less. Have the s 103 disclosure conversation with the client and document it in the Form 6. Elect whether the appointment will convert to an open listing on expiry or be subject to reappointment. Specify the end date clearly.
During the listing: Track the expiry date on every exclusive or sole agency appointment. If the listing is approaching 90 days without a sale, the reappointment window opens at day 76. Do not wait until day 91. Prepare the reappointment section of the Form 6 and have both parties sign it before the original term expires.
At expiry: If the appointment has converted to an open listing, understand that the exclusive protection has gone. You remain entitled to claim commission as the effective cause of sale, but the client may now engage other agents. Manage that relationship accordingly.
For agents operating across both residential and commercial markets: apply the residential 90-day cap to Form 6 appointments and be clear about when the commercial Form 6A regime applies instead.
The rule is simple in principle. Its application — particularly around reappointment timing, the 14-day extension window, the mandatory disclosure obligations under s 103, and the consequences of a defective form — requires the kind of deliberate process that comes from genuinely understanding the legislation, not just having seen the Form 6 enough times to fill it in by habit.