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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.
For enquiries Text, Call or email #yourhomegirl Justina Hamupembe
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