7 Bellfour Office Park, Cnr Edmar & Roger Street, Tygervalley
PO Box 5122, Tygervalley, 7536
Docex 8, Bellville
tel: +27 21 943 5111 • fax: +27 21 943 5100
[email protected] • www.esilaw.co.za
attorneys
Esterhuyse Samuels Inc.
Reg No: 1992/004266/21
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conveyancers
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notaries
BEE STATUS: Level 1
Procurement Recognition Level 135%
PROPERTY LAW UPDATE
NEW LEGISLATION IMPACTING ON PROPERTY
1.
GAS CERTIFICATES
New Pressure Equipment Regulations have been promulgated under the Occupation
Health and Safety Act, which bring gas appliances installed in property more or less in line
with electrical installations. In short, any person installing a liquid gas appliance onto a
property, from 1st October 2009, must have a certificate of conformity issued in respect
thereof.
The certificate is issued by an authorised person registered as such with the LIQUIFIED
PETROLEUM GAS SAFETY ASSOCIATION of SOUTHERN AFRICA (LPGAS), after he
has inspected the installation, and is satisfied that it is safe, and leak free.
Note further, that it does not matter that the installation of the gas appliance predated
October 2009. If an appliance is present, so is the need for a Certificate of Conformity on
the sale of the property.
Estate Agents should:a) Check for the existence of gas appliances in any of the properties they have a mandate
to sell;
b) Ascertain who, among the dealers in gas appliances in their area, are authorised
persons registered with the LPGAS, and are competent to issue Certificates of Conformity;
c) Advise all Sellers whose properties do have a gas installation, of the need to obtain
a Certificate of Conformity, and supply them with the names and contact details of
authorised persons in their area;
d) Make provision for the Seller to obtain the Certificate of Conformity in the eventual
Sale document, should a gas appliance have been installed in the property sold. The cost
of obtaining the Certificate, (and the cost of any work required to render the installation
safe and leak free) will be for the Seller's account.
ESI suggest that the following clause or addendum be added to the offer to purchase:
Directors:
Jacques Esterhuyse, Zayaan Samuels
Associates:
Anelda Lötter, Petula Samuels
CERTIFICATE OF CONFORMITY FOR GAS APPLIANCES
(a)
The Seller shall, prior to registration of transfer, furnish the Purchaser with a
valid Certificate of Conformity applicable to all gas appliances / system on the
property (i.e gas stove; gas geyser or built in gas braai etc) as prescribed in
Regulation 17(3) of the Occupational Health and Safety Act.
(b)
The certificate will be issued by an authorised person registered as such with the
Liquified Petroleum Gas Safety Association of Southern Africa (LPGAS).
(c)
All expenses incurred in meeting the criteria for the issue of such certificate,
including the certificate itself, shall be borne by the Seller. The Seller furthermore
warrants to the Purchaser that no addition or alteration to the gas installations on
the property has been effected since the issue of such certificate. Upon the Seller
furnishing the Purchaser with the said Certificate of Conformity, the Purchaser shall
have no claim whatsoever against the Seller and no further liability in this regard
shall rest upon the Seller.
Afrikaans clause:
SERTIFIKAAT VAN VOLDOENING / NAKOMING VIR GAS TOESTELLE
Die verkoper, sal voor registrasie van die oordrag, aan die koper 'n geldige Sertifikaat van
Nakoming lewer ten opsigte van alle gas toestelle / stelsel op die eiendom (i.e gas stoof;
gas geyser of ingeboude gas braai ens) soos voorgeskryf in Regulasie 17(3) van die Wet
op Beroepsgesondheid en Veiligheid.
Die sertifikaat sal uitgereik word deur 'n gemagtigde persoon en geregistreer by die
Vloeibare petroleumgas Veiligheids Vereniging van Suider-Afrika (Liquified Petroleum Gas
Safety Association of Southern Africa - LPGAS).
Die verkoper sal alle uitgawes dra wat voortvloei uit die verkryging van en nakoming van
die vereistes vir hierdie sertifikaat. Die verkoper waarborg dat daar geen toevoeging of
veranderings aan die gas installasie op die eiendom aangebring is na uitreiking van
hierdie sertifikaat. By lewering van hierdie sertifikaat aan die koper, sal die koper geen eis
teen die verkoper hê en sal die verkoper geen verdere aanspreeklikheid dra ten opsigte
van die gas stelsel op die eiendom nie.
2.
PLUMBING CERTIFICATES
The City of Cape Town passed a new water by-law which determines that, with effect from
18 February 2011 onwards, all sellers of properties within its jurisdiction must furnish a
Plumbing Certificate to the municipality before transfer.
Regarding the penalty issue, although the City has indicated that they are not allowed to
withhold rates clearances as a result of non-compliance with this requirement, the By-Law
states in Section 64 thereof that any person who contravenes or fails to comply with its
provisions (amongst other things) is guilty of an offence and is, on conviction liable for a
fine or imprisonment not exceeding five years or both such fine and term of imprisonment.
ESI suggests that the following clause or addendum be added to the offer to purchase:
PLUMBING CERTIFICATE FOR PROPERTIES WITHIN THE CITY OF CAPE TOWN
MUNICIPALITY
In terms of clause 14(1) of the City of Cape Town's Water By-law the Seller must, before
transfer, submit a certificate from an accredited plumber certifying that:
(a) the water installation conforms to the national Building Regulations and
this By-law;
(b) there are no defects which can cause water to run to waste;
(c) the water meter registers; and
(d) there is no discharge of stormwater into the sewer system.
The Seller undertakes to submit the said Certificate to the City of Cape Town via fax or
email, and to furnish proof of such submission to the transferring attorneys.
Insofar as the accredited plumber appointed by the Seller to provide such Certificate
requires corrective work to be carried as a precondition to the issue thereof, the Seller will
procure such work is carried out at his cost and expense.
Afrikaans clause:
NAKOMING SERTIFIKAAT VAN WATERINSTALLASIE VIR EIENDOMME IN DIE STAD
KAAPSTAD MUNISIPALITEIT
In terme van klousule 14(1) van die Stad Kaapstad se waterverordeninge moet die
Verkper, voor oordrag, 'n sertifikaat indien, uitgereik deur 'n geakrediteerde loodgieter wat
die volgende sertifiseer:
(a) dat die waterinstallasie in ooreenstemming met die nasionale bou regulasies en
die waterverordeninge is;
(b) dat daar geen foute is wat watervermorsing veroorsaak nie;
(c) dat die watermeter registreer; en
(d) dat daar geen uitvloei van stormwater in die rioolsisteem is nie.
Die verkoper onderneem om die sertifikaat aan die Stad Kaapstad te lewer via faks of
epos, en om bewys van afsending te lewer aan die oordrag prokureurs. Indien daar
herstelwerk uitgevoer moet word ten einde die sertifikaat te kan uitreik, sal die verkoper
verantwoordelik wees vir enige uitgawes ten opsigte daarvan.
3.
CONSUMER PROTECTION ACT (CPA)
The CPA is applicable to "ordinary course" transactions. The Act will not apply to sale /
lease agreements between persons who do not sell or let "in the ordinary course of their
business", such as individuals who occasionally sell or let properties. It neither applies to
transactions in terms of which the consumer is a juristic person whose asset value or
annual turnover, at the time of the transaction, equals or exceeds the threshold value
determined by the Minister (R3m proposed by draft regulations).
Prohibited tactics when canvassing for mandates and marketing properties
The following conduct is prohibited:
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Unfair discrimination
Misleading, false or deceptive statements
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Unfair, unreasonable or unjust techniques
Physical force, undue influence, pressure, harassment or unfair tactics to close deal
Use of exaggeration, innuendo or ambiguity
Failure to correct "apparent misapprehension" on consumer's part
The Minister may stipulate "prohibited periods" during which consumers may not be
canvassed at home unless they consent. The draft regulations propose the
following prohibited periods:
- Sundays and public holidays
- Saturdays before 09h00 or after 12h00
- Between 19h00 and 8h00 other days
Agents should therefore get consent in order not to delay negotiations during these
periods.
Mandates
The Act impacts on mandates as follows:
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A mandate arising from "direct marketing" is subject to a cooling off right
In terms of the Act transactions arising from direct marketing are subject to a
cooling off right. This means that mandates arising from direct marketing are
subject to a cooling off right. An estate agent must inform the client of the cooling
off right and the mandate may be terminated in writing within five business days
after date of obtaining the mandate.
Definition of direct marketing (taken from the Act):
‘‘direct marketing’’ means to approach a person, either in person or by mail or
electronic communication, for the direct or indirect purpose of (a) promoting or offering to supply, in the ordinary course of business, any goods
or services to the person; or
(b) requesting the person to make a donation of any kind for any reason;
ESI suggests the following clause to be added to the mandate agreement, where the
agreement arose through direct marketing:
Acknowledgement by seller of direct marketing cooling off right:
After being afforded an adequate period of time to understand and consider the matter the
Seller confirms that this mandate agreement WAS NOT / WAS concluded (delete
appropriately and initial) as a result of direct marketing on the part of the agent. In so
doing the Seller confirms the following;
(i) That the Seller has been informed of the fact that the Consumer Protection Act gives a
cooling off right to consumers (such as the Seller) who enter into agreements (including
mandate agreements such as this one) as result of direct marketing and that such
consumers may without consequence cancel such agreements in writing within five
working days of the date of signature thereof and;
(ii) That the Seller has confirmed that the Seller has entered into this agreement as a
result of direct marketing it is understood and accepted that it is policy of the agent to only
commence the rendering of its services after the five working day period has elapsed and;
(iii) That if the Seller has confirmed that the Seller has not entered into this agreement as a
result of direct marketing the agent will be lead to believe that the Seller does not have the
right to cool off and will by virtue of such confirmation depart from the above policy and
commence the rendering of the service immediately after signature hereof.
Afrikaans clause:
Erkenning deur die Verkoper van direkte bemarking afkoelreg:
Nadat die Verkoper voldoende tyd gegun is om die aangeleentheid te oorweeg, bevestig
die verkoper dat die mandaat IS / IS NIE (skrap waar nie van toepassing en parafeer)
gesluit as gevolg van direkte bemarking deur die agent.
Nou bevestig die Verkoper as volg;
(i) Dat die Verkoper in kennis gestel is van die feit dat die Wet op Verbruikersbeskerming
'n afkoelreg verleen aan verbruikers (soos die Verkoper) wat ooreenkomste aangaan
(insluitend mandaat ooreenkomste soos hierdie een) as gevolg van direkte bemarking, en
dat sodanige verbruikers sonder regsgevolge sodanige ooreenkomste skriftelik mag
kanselleer binne vyf werksdae na die datum van ondertekening daarvan en;
(ii) Dat die Verkoper bevestig dat hierdie ooreenkoms gesluit is as gevolg van direkte
bemarking en verstaan en aanvaar dat dit die beleid van die agent is om eers die lewering
van sy dienste na die vyf werksdag tydperk verstryk het te begin en;
(iii) Dat, indien die Verkoper bevestig het dat hy nie die ooreenkoms aangegaan het as
gevolg van direkte bemarking deur die agent nie sal die Verkoper geregtig wees op 'n
afkoelreg nie en sal die agent op grond van so 'n bevestiging deur verkoper onmiddelik
begin om die dienste te lewer soos waarop ooreengekom is by ondertekening hiervan.
Mandate terms to comply with the Act – may not be unfair, unreasonable, unjust, and/or
at a price that is manifestly unfair, unreasonable or unjust.
Voetstoots clauses
Voetstoots sales are not affected by the Act where the seller is an "ordinary" seller (not a
"supplier" – for instance a developer.
While it is currently a huge point of discussion and controversy, the agent’s involvement
should not elevate the agreement between the seller and the purchaser (which is not an
ordinary course transaction) to a transaction to which the Act is applicable. The voetstoots
clause should therefore still be allowed in these agreements. HOWEVER, it will be wise to
attach a schedule / fault list to the offer to purchase and to make the purchaser aware of
all latent and patent defects from the get go to avoid issues at a later stage.
Expiry and renewal of fixed-term agreements
In the property industry this section of the Act affects fixed term lease agreements. A
consumer may terminate a long-term contract on 20 business days notice. (Section 14 is
however not applicable to companies or CCs regardless of turn-over). The supplier in only
entitled to a reasonable cancellation fee in such an event. In the current draft Regulations
the cancellation fee is currently set as a maximum of 10% of the value of the remainder of
the contract.
4.
ESTATE AGENT TRAINING AND QUALIFICATIONS – RPL & PDE
EXAM
4.1
The benchmark rule is very simple:
Every agent/principal who had a FFC [Fidelity Fund Certificate] prior to 15 July 2008
needs to go through the RPL process.
This means:
Residential Sales Agents;
Commercial and/or Industrial Agents;
Business Brokers;
Rental Agents [Permanent and/or Holiday Letting];
Managing Agents/Property Admin Agents;
Time Share Consultants;
Auctioneers of immovable property;
Farm Sale Brokers
4.2
Why do you need this Qualification?
The Real Estate sector requires well-trained and knowledgeable professionals to meet
their clients’ demands. All agents are now required by law to achieve a Real Estate
Qualification at NQF level 4 (agents) and NQF level 5 (principals) by December 2011 if
they want to practice as real estate agents.
4.3
What is RPL?
Recognition of Prior Learning is what it says - a way in which agents can get recognition
for past experience, without having to start a course from scratch.
To get this recognition the agent has to provide evidence of what they have done and
learnt. The evidence will be compared to the requirements set by the qualification. If
enough evidence exists that you can do and know what is required in the qualification you
will be awarded the qualification, without having to do the full course.
The RPL option is much cheaper than going for training. Certain qualifications exempt
learners from these requirements. These are to be discussed on an individual level.
4.4
What qualification do you need?
INTERNS, formerly known as candidate estate agents:
- have to achieve the Further Education and Training Certificate (FETC); Real Estate
[NQF4]
- this is a 12 month programme
- has to be followed through accredited training providers
- need to purchase Study Guides from the EAAB
REGISTERED AGENTS with FFC prior to 15 July 2008
- have to achieve the NQF4 qualification through the RPL process
- consists of building a portfolio of evidence
- has to be followed through accredited training providers
PRINCIPALS
1.
Who held a FFC in the capacity as principals on 15 July 2008 are exempt from
NQF4
(a) need to acquire the NQF5 qualification through the RPL process
(b) 6 month programme
(c) consists of building a portfolio of evidence
(d) has to be followed through accredited training providers
2.
Entered as principals after 15 July 2008
(a) have to achieve the NQF4 qualification through the RPL process
(b) 4 month programme
(c) consists of building a portfolio of evidence
(d) process has to be followed through accredited training providers
AND
(e) need to acquire the NQF5 qualification through the RPL process
(f) 6 month programme
(g) consists of building a portfolio of evidence
(f) process has to be followed through accredited training providers
3.
Who wish to enter as principals in future: similar process as above however needs
to be discussed on an individual basis.
4.5
Where to start
iSeleSele Property Academy is accredited with both SSETA and the EAAB and the
Department of Education. You can contact them on [email protected] or
021 976 8848 or for online training you can visit www.rplmadeeasy.co.za or email
[email protected] or contact them on 0825331707.
Each agency is advised to also by buying the "Study Guide for the Professional Estate
Agent NQF level 4 Volume 1 and 2" as a start to the process.
4.6
PDE (Professional Designation Examination)
In terms of regulation 4(3) of the Education Regulations, promulgated under Government
Notice R.633 on 4 June 2008, no person may be registered by the EAAB as a full status
estate agent unless that person has also successfully completed the Professional
Designation Examination (PDE) conducted by the Board.
Every estate agent who continuously held a valid full status fidelity fund certificate issued
by the Board from at least 15 July 2003 to 15 July 2008 inclusive will be granted an
exemption from the PDE.
PDE exemption does not supersede the requirements for attending the NQF level 4 or 5
academic qualification. Persons registered as estate agents on 15 July 2008 are
reminded that they must be certificated against the appropriate NQF qualification by no
later than 31 December 2011
4.7
Impact
The Business Day reported on 14/02/2011 that the EAAB was liaising with banks, SARS
and the Deeds Office to ensure that it was impossible for unregistered agents to operate.
4.8
IEASA (Institute of Estate Agents South Africa)
What is the difference between the Estate Agency Affairs Board and the Institute of Estate
Agents?
The two organisations are often confused with each other. However, they're quite
different. The IEASA is a private organisation that promotes the interests of its members
and the profession (but still cares about the consumer) — the EAAB is a government body
which regulates the estate agency profession in the interests of the consumer.
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Membership of the IEASA is voluntary — but by law, all estate agents must register
with the EAAB.
The IEASA provides a variety of benefits to its members — the EAAB doesn't
provide any services to estate agents.
The IEASA provides a dispute resolution service to its members — the EAAB does
not intervene in disputes between estate agents.
The IEASA has no power to deal with consumer complaints against estate agents
— the EAAB has disciplinary powers and can fine or disbar estate agents for
unethical conduct.
Contact IEASA Western Cape on 021 531 3180 / [email protected] /
www.ieasawcape.org.za