Latest Posts

New cannabis bill could see construction taking the high road

The proposed amendments to the Cannabis for Private Purposes bill that seeks to further decriminalise cannabis usage and legalise South…

Read More..

Luxury vs ultra-luxury – What’s the difference?

BESPOKE LIFESTYLE: There are a number of key factors that distinguish ultra-luxury homes form the rest, not least that they’re…

Read More..

Creating sustainable growth and reducing poverty through structural transformation

Urban development domains ACRC’s analytical framework uses the concept of urban development domains to transcend both sectoral and traditional systems-based…

Read More..

A root cause of flooding in Accra: developers clogging up the city’s wetlands

Christopher Gordon, University of Ghana Ghana has six designated Ramsar sites. These are wetlands designated under the criteria of the…

Read More..

Nigerian property crime could be reduced if neighbourhoods were better designed

Adewumi Badiora, Olabisi Onabanjo University Nigeria has a very high crime rate. The Global Peace Index ranked it the world’s…

Read More..

Inner cities are growth engines attracting young homebuyers

Inner city living is boosting the city residential property market and driving urban rejuvenation Inner cities. Love them or hate…

Read More..

Kenya’s push for affordable housing is creating opportunities despite barriers

Raphael M. Kieti, University of Nairobi; Robert W. Rukwaro, University of Nairobi, and Washington H.A. Olima, University of Nairobi In…

Read More..

Heron IVC: Walking the green talk

Waterfall is closing the loop on waste Waterfall prioritises sustainability and responsible environmental stewardship as a strategic imperative, keeping the…

Read More..

26th Aug 2022

Architect Africa Online

Africa's Leading Architecture Aggregator

Preparation for the new Act – is there such a thing as too much?

Picture: Marlon Shevelew, director Marlon Shevelew & Associates

Marlon Shevelew

An agency recently enquired about a landlord disclosure report provided to them by a certain property bureau. The disclosure report stated that it should be signed by the landlord at the same time as the mandate is signed and prior to signature of the lease by the landlord.

The agency, to its credit, did a preliminary investigation on whether the signature of such a disclosure report was required. The information which the agent found online was conflicting, with some sources stating that the disclosure form was a requirement as the Property Practitioners Act 22 of 2019 (PPA) required it. On the other hand, the agent couldn’t find the particular provisions which allegedly made the signature of the form a prerequisite to concluding the mandate and the lease. Herewith follows a discussion of the position currently.

The current position

Section 54 of the Consumer Protection Act 68 of 2008 (CPA) entitles consumers to the use of goods that are free from defects. So, the obligation is already there for landlords to ensure that a rental property is fit for purpose. And in terms of paragraph 4 of the code of conduct of the Estate Agency Affairs Act 112 of 1976 (EAAA) estate agents are obliged to inform prospective tenants of all facts concerning the rental property; the paragraph reads as follows:

4 Duty to disclose

4.1 An estate agent shall-

   4.1.1   convey to a purchaser or lessee or a prospective purchaser or lessee of immovable property in respect of which a mandate has been given him to sell, let, buy or hire, all facts concerning such property as are, or should reasonably in the circumstances be, within his personal knowledge and which are or could be material to a prospective purchaser or lessee thereof; [own emphasis]

But this does not oblige the landlord to sign a disclosure form such as the one that was presented to the agent. Having said that, the disclosure form which was provided is not in conflict with the existing duties on agencies and it may be useful in safeguarding an agency against complaints by tenants regarding the condition of a property.

The position under the PPA

What caused some of the confusion is the lag between the passing of the PPA as a law and its commencement. The first thing to note is that the PPA is not in operation yet. The date of commencement of the PPA has yet to be proclaimed. So, what follows is a discussion of the position as it will be once the PPA comes into operation. Once the PPA comes into operation, it will repeal the EAAA in its entirety. It will then regulate the real estate profession. Section 67 of the PPA states as follows:

67 Mandatory disclosure form

(1) 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. [own emphasis]

So, the form that has been provided has been provided in anticipation of the commencement of the PPA and is not required as yet.

The downsides of being overzealous

While preparation for an impending change is no doubt admirable, precipitous implementation of additional requirements on landlords can place an unnecessary burden on landlords and agents. To do so can increase costs for both aforementioned. And if a form such as the disclosure form is presented in a manner that does not make clear that it is not legally required, it can cause confusion, as it has in the present case.

And where resources such as the disclosure form are provided by a credit bureau who present themselves as experts in compliance, and it becomes apparent that said form is not in fact legally required, the result can be that there is a breakdown of trust in such compliance advice. And furthermore, if the agent had simply passed the report on to the landlord on the say-so of the credit bureau, the landlord could also become disillusioned with the guidance provided.

Accountability and transparency

What should be taken away from this instance is two-fold. Persons in all spheres (landlords, agents, tenants) need to hold those who advise them and provide services accountable for advice given and demand an accurate representation of the law as it stands. And secondly those providing services and guidance need to do so with transparency. Where a precaution is anticipatory it should be clearly presented as such. And where there is uncertainty regarding a position it should be pointed out.

About the author: Marlon Shevelew is the director of law firm Marlon Shevelew and Associates Inc. Shevelew is a well-known expert authority on residential property law in South Africa.

The post Preparation for the new Act – is there such a thing as too much? appeared first on Everything Property.

SOURCE: First Published on Everything Property


If you find this website useful please spread the word.

Follow by Email