The Property Practitioner’s Act, no. 22 of 2019 (hereafter referred to as “the Act”) effectively repealed the outdated Estate Agency Affairs Act, no. 112 of 1976 (hereafter referred to as the “Estate Agency Affairs Act”). The Act explicitly seeks to redress issues concerning transformation within the property market. If the Act succeeds in achieving its key objectives, important operations surrounding the property sector in South Africa will effectively be governed by the Act.
For the sake of clarity, the Act will be discussed in four parts, briefly touching on the main objectives of the Act.
- WHO IS A “PROPERTY PRACTITIONER”?
The Act uses the phrase “property practitioner” which is much broader than an “estate agent” under the Estate Agency Affairs Act. A property practitioner is any natural or juristic person who, for the acquisition of gain, directly or indirectly, on the instructions or on behalf of another:
- by auction or otherwise sells, purchases, manages or publicly exhibits for sale any property or business undertaking;
- leases or hires or publicly exhibit for hire any property or business undertaking;
- collects or receives any monies payable on account of a lease;
- provides, procures, facilitates, secures or otherwise obtains or markets financing for or in connection with the management, sale or lease of a property or business undertaking, including a provider of bridging finance and a bond broker, but excluding any person contemplated in the definition of ‘‘financial institution’’ in section 1 of the Financial Services Board Act No. 97 of 1990; and/or
- renders services as an intermediary to affect the conclusion of an agreement to sell or let a property or business undertaking (except where this is not done in the ordinary course of the person’s business, or by a natural person in their personal capacity, or where the person is an attorney, candidate attorney or sheriff).
(Own Emphasis added)
It is clear that the application of the Act extends well beyond estate agents. The Act is wide and all-encompassing, ensuring that anyone remotely associated with property transactions will be regulated by the Act. Anyone who falls within the ambit of the definition of a “property practitioner” is required to be in possession of a valid Fidelity Fund Certificate, failing, shall result in such a property practitioner being unable to render services or receive payment of fees.
- COMPLIANCE AND ENFORCEMENT
The Estate Agency Affairs Board is replaced by the Property Practitioners Regulatory Authority (hereafter referred to as “the Authority”). The Authority is given far-reaching powers in ensuring compliance with the Act. The Authority is responsible for implementing measures to transform the property sector and is empowered to appoint inspectors, issue compliance notices and fines.
Unlike the Estate Agency Affairs Act, the Act seeks to establish an independent Property Practitioners Ombud. The issues that will be dealt with by the Property Practitioners Ombud will inter alia include the financing, marketing, managing, letting, hiring, sale and purchase of property. Consequently, if the Property Practitioners Ombud is implemented effectively the burden on the courts should be lightened.
The Act creates a Property Sector Transformation Fund as well as a Property Sector Research Centre. The Property Sector Transformation Fund must be utilised by the Authority to achieve transformation and successfully implement empowerment programmes.
By reading the relevant sections relating to transformation, it is clear that all property practitioners should endeavour to achieve an appropriate BEE level since a Fidelity Fund Certificate will not be issued without the production of a valid BEE certificate by a property practitioner. The Act further provides that the Government must use the services of property practitioners who comply with Broad-Based Black Economic Empowerment and employment equity legislation.
- CONSUMER PROTECTION
The Act is a consumer-based piece of legislation. In achieving one of its main objectives, i.e. consumer protection, the Authority is mandated to conduct campaigns in order to educate property practitioners and consumers.
The Act further places an obligation on a property practitioner to not accept a mandate unless the seller or lessor has provided both the property practitioner and the prospective purchaser with a fully signed mandatory disclosure form.
The disclosure form must be attached to the sale or lease agreement and will form a mandatory part of such agreement. The buyer or tenant of any property can further request the sale or lease agreement to be in any one of the official languages of South Africa, and the seller or landlord or managing agent must comply.
The Act is significantly stricter and more far-reaching than the Estate Agency Affairs Act. Any person convicted of an offence in terms of the Act is liable to pay a fine, or imprisonment for up to 10 years.
Even though the commencement date of the Act is still to be determined, all property practitioners are strongly advised to familiarise themselves with this piece of legislation, in light of the serious consequences of non-compliance.