The above legislation is a crucial new Bill that will replace the current Estate Agency Affairs Act of 1976.
“This bill is part of government’s response to the changing market conditions, and it seeks to create an enabling environment to enhance economic activity within the real estate sector. It will also help open up market opportunities for new entrants into the real estate sector, especially black people who were previously disadvantaged‚” Human Settlements Minister Lindiwe Sisulu.
- Who is a property practitioner (PP)?
PP is defined to include estate agents, rental agents, mortgage originators, property inspectors; valuators (in certain cases) property managers and more.
- A person who does not do so (operate as above) in the ordinary course of business;
- Persons who are natural persons and that person in the ordinary course of business sells his/her property in his/her personal capacity;
- an attorney/candidate attorney;
- the Sheriff of the Court when he performs his/her operational functions irrespective of whether ordered by Court or not to do so.
- When will the Act Apply?
To PP’s as defined in the Act and in 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.
A new regulatory body will be created and known as the Property Practitioners Regulatory Authority. This official body will regulate the conduct of the PP’s and ensure that the Act is complied with.
An Ombud will also be established to consider and deal with any complaints lodged in terms of the Act.
- Compliance Notices and inspectors
The Authority may appoint inspectors to inspect at any reasonable time, but without prior notice and without a warrant, to do the following:
3.1 Enter & inspect any business premises of a PP;
3.2 Require his/her fidelity fund certificate/book/record/other related document related to the inspection and under his/her control.
3.3 Examine or make copies of the above mentioned document;
3.4 Seize & Retain such document.
The Minister is obliged to publish notices regarding minor and more serious offences and prescribe fines.
- The Fidelity Fund Certificate:
Each PP must annually apply to the Authority for a Fidelity Fund Certificate and such application must be accompanied by payment of the prescribed fees. No one may act as a PP unless he/she/it is in possession of a FFC. This requirement extends to employees; directors of companies; members of a CC, every trustee of a trust and every partner in a partnership. Should the person not be in receipt of a FFC then such person must repay any amount received in respect of or as a result of any property transaction from any relevant party upon written request during such contravention period.
The PP’s FFC must be displayed at all times and must be referred to on all letterheads and marketing material. No commission may be paid to any PP by the Conveyancer attending to transfer unless he or she received a copy of the FFC.
The Department of Human Settlements (DHS) says the new bill will upgrade many of the practices of selling home property; including setting out provisions for the establishment of this new authority; re-emphasize and tighten up on certain aspects of industry governance; introduce regulation for property home inspectors/surveyors and regulate for their registration by the new authority before they can be part of any sale process.
Where the big change will come, it seems, is in the area of generalised consumer protection, which it is proposed will fall under the common jurisprudence of the new authority rather than relate to the Consumer Protection Act.
It is suspected that many more possible registered “home inspectors” than those who potentially exist at the moment will have to be trained and registered by the new authority before the current volume of sales can be processed. This may call for the Bill to be introduced in stages.
The wish of DHS, says the Minister, is to prioritise for new rules that will place a heavier onus on estate agents/realtors to provide a much deeper level of advice to prospective purchasers and to engage a properly trained and certified home inspector for the sale.Consequently, it is hoped that there be will a raised level of awareness on the part of sellers and their agents that more is required of them before a sale can take place. At the present moment, varying from province to province, just a gas, plumbing and electrical clearance is called for – and sometimes a “beetle certificate” for wood borers, anciently known as the deathwatch beetle, and non-existent in most parts of SA. The Consumer Protection Commission has stated that as things stand at present estate agents are responsible for all advice and a satisfactory outcome of a sale in terms of the Consumer Protection Act, yet the whole area is vague at law with many experts differing on expected outcomes. It is hoped that the new proposals will clarify much in this area which has been described by the EAAB itself as a “legal quagmire” and to make the sale of a home a “less stressful and time consuming process” for the buyer.