The provisions of the newly promulgated Act will commence on the 1st of February 2022.
The Act essentially repeals the existing Estate Agency Affairs Act 112 of 1976 and calls for stricter consumer protection measures.
This Act applies to the “marketing, promotion, managing, sale, letting, financing and purchase of immovable property, and to any rights, obligations, interests, duties or powers associated with or relevant to such property”.
The Act provides for the establishment of a new governing body known as the “Board of Authority”, which governing body will govern property practitioners rather than just Estate Agents.
The definition of a property practitioner is extremely wide and includes everyone involved, for gain, in the purchasing, selling, renting, letting, marketing, and financing of property, but is not limited to:
- Estate agents & letting agents.
- Property developers.
- Property management agents.
- Commercial property brokers.
- Home inspectors.
- Homeowners Associations.
- Bridging finance companies.
- Bond brokers (with the exclusion of financial institutions);
- Directors, Members, Trustees, Partners and/or employees of property practitioners (certain provisions only).
The Act makes provision for the appointment of inspectors, who may at any reasonable time, and without prior notice, conduct an inspection at the business premises of a property practitioner to ascertain whether the provisions of the Act have been complied with. An inspector may without having a search warrant, enter and inspect the business premises and request the property practitioner’s Fidelity Fund Certificate and any book, record, or document pertaining to the inspection. The Act further stipulates that an inspector may uplift extracts or make copies of any documents, seize any data, and/or make attachments of items pertinent to the inspection whilst in possession of a search warrant.
Non-compliance with the provisions of the Act may lead to the issue of a fine, payable to the Property Practitioners Fidelity Fund, which Fund is maintained for the reimbursement of persons who have suffered pecuniary loss at the hands of a Property Practitioner who is in possession of a Fidelity Fund Certificate.
The Authority may order that a portion of the fine be paid as compensation to the person who has suffered pecuniary loss as a result of the conduct of a Fidelity Fund Certificate bearing Property Practitioner.
FIDELITY FUND CERTIFICATES:
No person or entity may act as a property practitioner without being in possession of a valid Fidelity Fund certificate. Further, no person or entity may employ another person without such person having been issued with a valid Fidelity Fund certificate.
Every director, member, trustee, or partner must be issued with a Fidelity Fund certificate, which is issued annually upon application.
The Act has included further requirements for the successful application and issue of a Fidelity Fund Certificate, namely that the applicant must be in possession of a valid tax clearance certificate, and a valid BEE certificate.
Should a property practitioner not be in possession of a valid Fidelity Fund certificate, he or she may not render services or receive fees in lieu of such services. Conveyancers are especially cautioned to request copies of the property practitioner’s valid Fidelity Fund certificate prior to transferring any monies due to the said property practitioner.
The Act has implemented the display of property practitioners’ Fidelity Fund certificates. A property practitioner must visibly display his or her Fidelity Fund certificate in every place of business from which property transactions are conducted.
Further, a prescribed sentence must be indicated on all letterheads and marketing material, in which it is confirmed that the property practitioner holds a valid Fidelity Fund certificate.
Property practitioners must further include a guarantee of the validity of their Fidelity Fund certificate in all agreements relating to property transactions.
CONSUMER PROTECTION MECHANISMS:
A property practitioner must not accept a mandate unless the seller and/or lessor has provided a fully completed and signed mandatory disclosure, which has been set out in the prescribed form.
Once received, the property practitioner must provide the purchaser and/or lessor with a copy of the mandatory disclosure, which is to be signed by the purchaser and/or lessor.
The signed disclosure must be attached to the agreement of sale and/or lease, as it will now form an integral part of the agreement.
The disclosure must disclose any defects or deficiencies that have been noted on the property. Failure to attach the disclosure will result in the interpretation that there are no defects or deficiencies, which renders the property practitioner liable to affected consumers.
It is apparent that this new legislation is certainly more focussed on the consumer, with the added intention of ridding the industry of unscrupulous property practitioners.
It is always advised when dealing in any sort of property transaction, to verify the practitioner you may be dealing with, and confirming that the practitioner does hold a valid Fidelity Fund certificate.
Property practitioners are urged to acquaint themselves with this legislation to ensure that the provisions are complied with considering the hefty consequences that have been implemented for non-compliance.
Article by Tayla Moorley.