What the Property Practitioners’ Bill entails: Part 2

The Property Practitioners’ Bill is a new piece of legislation which will replace the Estate Agents Act 112 of 1976. Its primary purpose is to establish the Property Practitioners’ Regulatory Authority, which will replace the Namibia Estate Agents Board, to regulate the affairs of all property practitioners, and allow for transformation in the property sector and to provide consumer protection.

Here is a list of some of the changes from the bill.

Fidelity Fund Certificates (FFC)

An FFC is a certificate which is issued to every Property practitioner. Without a Fidelity Fund Certificate, a Property Practitioner may not trade or be paid for any work. FFCs are valid for 12 months, from 1 January to 31 December each year, meaning agents must renew them annually. However, once the Property Practitioners Act commences, they will be valid for 3 years. If the firm is a company, then all of its directors must also have one; if it is a Close Corporation, then all its members; if a partnership, its partners; and if a Trust, all the Trustees.

Limitation on relationships with other service providers

A Property Practitioner may not enter into any arrangement where a consumer is obliged or encouraged to use a particular service provider – including the services of an attorney. Although there is no definition of the word “arrangement”, it most likely means a “financial incentive”. This means that the Property Practitioner may not receive a commission from mortgage bond originators; bridging companies; compliance companies, or attorneys, in return for which the Property Practitioner recommends that person’s services to a seller, for example.
• Attorneys are forbidden from “buying work”, soliciting for business, or “touting”. Their profession requires that they obtain business through word of mouth and conservative marketing efforts – not through sharing professional fees or paying for support. This Act now mirrors this prohibition.
• In other words, if a Property Practitioner who sells a house recommends a conveyancer because the conveyancer pays the agent’s office rent; “desk fees”, or petrol money; or pays the Property Practitioner a percentage of the transfer fee, or anything similar, it will be a criminal offence.
• And furthermore, if a consumer finds out that the Property Practitioner was involved in such an arrangement, the Property Practitioner must repay any such remuneration, together with interest, within 30 days if requested, else that is also a criminal offence.

Mandatory Disclosure forms

The Act provides that Property Practitioners must only accept a mandate if the seller or lessor has provided a fully completed and signed mandatory disclosure in the prescribed form. (The form must still be published.)

This form must be presented to any potential buyer or tenant as part of the agreement. A Property Practitioner who fails to comply with this may be held liable by an affected consumer-it does not mean that a buyer can now hold you as the Property Practitioner liable for all defects discovered after transfer. All it means is that if you wish to argue that you did disclose a defect, but this was not contained in a report, the law will presume that you did not disclose it.

It means that a Property Practitioner has a legal duty to act with reasonable care, skill and diligence. This means that he/ she must always take reasonable steps to ensure that a consumer does not suffer damages due to an oversight on the Property Practitioner’s behalf, under the circumstances, when it was not only reasonably foreseeable that such conduct could result in damages, but where it was also reasonably avoidable.
• It also means that the Property Practitioner should restrict your opinions to what you know and not what you might presume and never express an opinion if you are not qualified to give one. For example, please do not attempt to interpret title deed conditions or value a unique property unless you have the experience to back it.
The Property Practitioners Bill is available on the Namibia Estate Agents Board website.

For enquiries Text, Call or email #yourhomegirl Justina Hamupembe