In a letter titled Dear "[Real Estate Institute]", The Australian Securities and Investments Commission (ASIC) noted that it is aware some real estate agents are advising tenants who are unable to pay their rent to consider applying for early release of their superannuation.

Such an action is now possible thanks to a recent government stimulus measure allowing people affected by COVID-19 to withdraw up to $20,000 from their super balances. 

While there are pros and cons of withdrawing from superannuation to pay for emergency expenses during COVID-19 (more on this later), a real estate agent telling a tenant to do so constitutes personal financial advice - something they are not licensed to give. 

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In its open letter to "the Real Estate Institute", ASIC said such conduct by real estate agents is of significant concern. 

"ASIC is aware that some real estate agents are advising tenants who are unable to pay their rent, or who may find themselves in such a situation in future, to consider applying for early release of their superannuation," the regulator said. 

"We are concerned that the conduct by real estate agents referred to above may:

  • constitute unlicensed financial advice in contravention of section 911A of the Corporations Act; or
  • not be in the best interests of individuals in contravention of section 961B of the Corporations Act."

According to ASIC, financial advice must only be provided by "qualified and licensed financial advisers or counsellors", and not by real estate agents unless they hold the requisite licence. 

A breach of the corporations act imposes significant penalties, and agents found in violation could face a penalty of up to $126,000 and a maximum of five years in prison. 

Corporations meanwhile could be fined up to $1.26 billion dollars. 

"Tenants facing financial difficulty need sound financial guidance and potentially debt counselling," ASIC said. 

"Specifically pointing them to and recommending them to consider the specific possibility of accessing superannuation is, again, likely to amount to a breach of the Act."

"ASIC intends to monitor this situation closely, and if contraventions of the licensing requirements of the Corporations Act are found, ASIC will not hesitate to act swiftly to protect vulnerable consumers."

ASIC was initially tipped off to such actions from Shadow assistant treasurer Stephen Jones, who wrote to ASIC earlier in the week raising concerns about agents giving unqualified financial advice. 

According to Nine newspapers, Mr Jones said renters should be able to make decisions "based on financial advice that is in their own best interests and free from the conflicted interests of other agents".

"Financial advice should only be provided from qualified advisers and financial counsellors, not their real estate agent," Mr Jones said.

"We ask you to consider issuing a warning on this matter."

The Prime Minister announced a six-month moratorium on evictions earlier this week preventing landlords from evicting tenants if they are unable to pay rent due to financial distress as a result of the COVID-19 pandemic. 

The National Cabinet is also meeting again today to discuss the housing market, with renters likely on the agenda again. 

When should you withdraw from your super? 

When the announcement that Australians could withdraw from their super balances was announced, the government stressed how necessary such a measure could be for vulnerable Australians. 

“While superannuation helps people save for retirement, the Government recognises that for those significantly financially affected by the Coronavirus, accessing some of their superannuation today may outweigh the benefits of maintaining those savings until retirement,” the official Economic Response to the Coronavirus fact sheet says.
“This is the people’s money and will benefit the sole trader or casual whose work hours or income has reduced by 20%+ since Jan 1, the Treasurer Josh Fryndenberg said.
And while withdrawing from super balances could be life-saving for some, other groups who were more neutral of the measure urged restraint unless absolutely necessary. 

Labor Leader Anthony Albanese has warned of the consequences of withdrawing from your retirement fund at the bottom of the market.

“Selling your super at the bottom of the market will risk squandering people’s hard-earned retirement savings,” the opposition leader, Anthony Albanese, told parliament in response. 

“It is also the case if the superannuation industry is forced to sell assets at the bottom of the market. That also is not sensible economics.”

Spaceship Super CEO Andrew Moore also told there are dangers with withdrawing too much too early. 

"Most of Spaceship’s superannuation members are millennials, which means they typically have many years to ride out the ups and downs of investment markets before they reach retirement age.

"When on better footing, members might want to consider whether to make voluntary contributions to top up their super balance."

With the general consensus being that withdrawing from superannuation should be used as a last resort, it is perhaps understandable why ASIC is so concerned with real estate agents providing such advice. 

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