The Estate Agency Affairs Act, 1976 (No. 112 of 1976) is repealed & replaced by The Property Practitioners Act, 2019 (No. 22 of 2019). The work of the Estate Agency Affairs Board (EAAB) will now be taken over by the Property Practitioners Regulatory Authority (PPRA).
Snippets from the Act include mandatory Fidelity Fund Certificates (FFC’s) for all property Practitioners which are required to be displayed, FFC’s deemed to have been approved if practitioner have applied correctly, limitation on relationships with service providers where a consumer is encouraged to use a service provider, and mandatory disclosure forms required at mandate stage.
It now remains to be seen whether the new Act will bring about the much needed changes to the (dis)functioning of the old Board? And, will this see a new era begin in the Property Industry?
The first 7 Chapters of the Act set out definitions, establish the Authority, Board & Fund with enforcement and compliance provisions, and further provides for transformation of the Property sector. It starts getting meatier at Chapter 8 & 9 which relates to Property Practitioners and Chapter 10 which relates to Consumers.
The EAAB was notorious for letting Property Practitioners down, and this resulted in many not being in possession of their FFC’s. The Act sets specific terms for performance for the Authority as well as for Practitioners. Let’s see if performance in accordance with the Act and Regulations will follow…
I have only pulled a few of the sections of the Act into focus in this article, and I have listed those sections below should you wish to read them.
- Prohibition on rendering services without Fidelity Fund certificate
(1) No person or entity may act as a property practitioner unless, in addition to any other requirements provided for in or under this Act—
(a) he or she or it has been issued with a Fidelity Fund certificate contemplated in section 47; or
(b) if he or she or it employs any other person as a property practitioner, that person has also been issued with a Fidelity Fund certificate contemplated in section 47.
(2) If an entity is— (a) a company; (b) a close corporation; (c) a trust; or (d) a partnership,
every director of such a company, every member of such a close corporation, every trustee of such a trust and every partner of such a partnership, as the case may be, must have been issued with a Fidelity Fund certificate contemplated in section 47.
(3) Any person who contravenes or fails to comply with subsection (1) is guilty of an offence.
(4) A person who contravenes or fails to comply with subsection (1) must, immediately upon receipt of a request from any relevant party in writing, repay any amount received in respect of or as a result of any property transaction during such contravention.
(5) A person who fails to comply with a request contemplated in subsection (4) is guilty of an offence.
(6) The provisions of this section apply irrespective of—
(a) what appellation a person or entity is described by; or
(b) whether he, she or it is registered, certified or appointed or acts in terms of or under or for purposes of any other Act.
- Mandatory time periods for issuing certificates
(1) The Authority must, within 30 working days, consider any application submitted to it in terms of this Act, which fully meets the prescribed requirements, unless the Authority, on good grounds in writing, informs the applicant of the reasons why that period is to be extended, provided that such extension may not exceed 20 working days.
(2) The period of 30 working days contemplated in subsection (1) commences afresh if the Authority requests the applicant to submit additional information or to correct the said application.
(3) If the Authority has failed to comply with subsection (1), the application is deemed to have been approved and the Authority must, upon written request by the applicant within 10 working days, issue the applicant with the relevant certificate.
- Mandatory display of Fidelity Fund certificate
- A holder of a Fidelity Fund certificate must—
(a) prominently display his, her or its Fidelity Fund certificate in every place of business from where he, she or it conducts property transactions, to enable consumers to easily inspect it;
(b) ensure that the prescribed sentence regarding holding a Fidelity Fund certificate is reproduced in legible lettering on any letter head or marketing material relating to that property practitioner;
(c) in any agreement relating to property transactions entered into by him or her or by his, her or its company, close corporation, partnership, trust or other entity permitted to conduct the business of a property practitioner, include the prescribed clause which ensures that he, she or it guarantees the validity of the certificate.
(2) A person who contravenes subsection (1) is guilty of an offence.
- Limitation on relationships with other property market service providers
(1) A property practitioner may not—
(a) practise in association with any person which or who is prohibited by any law, any professional code of conduct, any code of ethics or protocol, report or charter on corporate governance, from doing so; or (b) enter into any arrangement, formally or informally, whereby a consumer is obliged or encouraged to use a particular service provider including an attorney to render any service or ancillary services in respect of any transaction of which that property practitioner was the effective cause.
(2) The Minister may by regulation prohibit any relationship which could harm the interests of consumers.
(3) A person who renders any service in contravention of this section is not entitled to any remuneration, payment or consideration in respect of such services rendered, and if the consumer has paid any remuneration, payment or consideration of the relevant service provider must immediately upon request in writing by any affected party repay any such remuneration, payment or consideration, together with interest.
(4) A person who, within one month of being requested to do so, fails to repay any such remuneration payment or consideration together with interest is guilty of an offence.
- Mandatory disclosure form
- A property practitioner must—
(a) not accept a mandate unless the seller or lessor of the property has provided him or her with a fully completed and signed mandatory disclosure in the prescribed form; and
(b) provide a copy of the completed mandatory disclosure form to a prospective purchaser or lessee who intends to make an offer for the purchase or lease of a property.
(2) The completed mandatory disclosure form signed by all relevant parties must be attached to any agreement for the sale or lease of a property, and forms an integral part of that agreement, but if such a disclosure form was not completed, signed or attached, the agreement must be interpreted as if no defects or deficiencies of the property were disclosed to the purchaser.
(3) A property practitioner who fails to comply with subsection (1) may be held liable by an affected consumer.
(4) Nothing in this section prevents the Authority from taking action against a property practitioner or imposing an appropriate sanction
(5) Nothing in this section prevents a consumer, for his or her own account, from undertaking a property inspection to confirm the state of the property before finalising the transaction.
Take a look at the Act and Regulations to get a more holistic view and please don’t hesitate to contact us if you wish to discuss anything further.
