Estate agents must familiarise themselves with the Consumer Protection Act and have their documents redrafted to avoid getting into trouble.
Broekmann says any statement, whether made verbally or in the course of direct marketing or in any marketing literature, has to be totally free of statements that could be deemed to be misleading. If it can be shown later that the buyer was misled in any way, or even that the agent made a statement without reasonable grounds for believing it to be true, then not only can the agent be held responsible, but also possibly the seller, and the penalties for breach of the act are severe.
Gunston Attorneys commercial director, Trudie Broekmann says in terms of the Act, the mandated estate agent supplies services and possibly, goods, to the principal, as well as to the potential purchaser, tenant or even seller, where the agent was mandated to find a property for a purchaser to buy.
The agent is consequently a ‘supplier’ as defined in the act, and in that role, needs to ensure that he or she complies with the many relevant provisions of the act when interacting with buyers, sellers and tenants.
The mandate deals with the relationship between the agent and the principal, and may not contravene the Act.
It can and should also be used to protect the agent against some of the most onerous legal risks in the act, she says.
She explains that the new Act is aimed primarily at protecting individuals and vulnerable consumers.
For this reason it will only apply fully to a transaction where the purchaser is a juristic person (defined to include a company, close corporation, trust, association, partnership and body corporate) which has assets and turnover below R2 million, or an individual or individuals.
The financial position of the purchaser entity at the time of concluding the agreement is relevant as well as the position at date of transfer.
A big question now is what estate agents can do to protect themselves under the new legal conditions?
This is necessary because the act contains several ‘radical’ provisions to protect consumers, which did not previously form part of South Africa’s body of legislation.
The first of these provisions is that, unless both seller and agent are juristic persons, the seller now has the right to cancel the mandate he has signed at any time (even one day after signing), provided he gives 20 business days’ written notice to the agent.
This right overrides any period signed for in the mandate document.
The agent can provide for a cancellation penalty in the mandate, but it must comply with the principles in the regulations to the Consumer Protection Act, she says.
Broekmann says the Act also appears to have the effect that a mandate is automatically renewed on its expiry, so that it runs on a month-to-month basis.
Redrafting of mandate agreements will therefore be necessary to resolve the uncertainties and ensure that mandates can effectively come to an end at the time agreed between the agent and the principal.
Equally radical is section 48 of the Act which stipulates that all prices and terms affecting the consumer have to be fair, reasonable and just.
This wording, says Broekmann, is obviously hard to interpret in a particular factual situation and it is still too early to know how the National Consumer Tribunal will interpret it.
As an example, she says until now estate agents have sometimes been able to claim commission on signed sales agreements negotiated by them where, through no fault of theirs, the sale did not materialise, e.g. if the buyer absconded.
This practice will now in all probability be deemed unfair to the consumer (the seller).
An unfair, unreasonable or unjust clause is void and in certain cases can mean the entire contract becomes void.
Similarly, when an agent even in these difficult times is able to sell a very high priced property in a very short space of time the Tribunal (if appealed to) might judge that the agreed commission was not fair, reasonable or just, as it was too easily earned and could authorise a reduction in it.
It has to be understood that the Act will supersede written agreements.
Yet another radical section in the act, notes Broekmann, imposes a duty on the supplier (the agent) to draw to the attention of the consumer (usually the seller) ‘in a conspicuous manner’ and before the agreement is signed any condition which limits the liability of the supplier or imposes a risk or liability on the consumer.
Furthermore, the consumer has to sign or initial the condition to show his or her assent.
The Act stipulates that the agent has to provide a written sales record (which complies with section 26 of the act) to every consumer to whom he or she has provided services or goods. This record would include such details as the agent’s full name, VAT registration number, if any, their address, the dates on which the agreement was concluded and the services were rendered or goods supplied and a description of the goods or services and the price.
Section 22 of the act stipulates that estate agents’ mandates (as well as all other relevant documents) must be written in ‘plain’ language so that a consumer with ‘average literacy skills’ and minimal experience in selling property can be expected to understand it ‘without undue effort’.
These provisions of the act necessitate careful redrafting and layout of agreements and the setting up of a watertight procedure to be followed by the agent before a consumer is asked to sign, she says.
Broekmann says any statement, whether made verbally or in the course of direct marketing or in any marketing literature, has to be totally free of statements that could be deemed to be misleading.
If it can be shown later that the buyer was misled in any way, or even that the agent made a statement without reasonable grounds for believing it to be true, then not only can the agent be held responsible, but also possibly the seller, and the penalties for breach of the act are severe.
Broekmann recommends that principals insist that an indemnity in their favour is included in the mandate, in case the agent contravenes the Act.
The Act stipulates that the agent has to provide a written sales record (which complies with section 26 of the act) to every consumer to whom he or she has provided services or goods.
This record would include such details as the agent’s full name, VAT registration number, if any, their address, the dates on which the agreement was concluded and the services were rendered or goods supplied and a description of the goods or services and the price.
The agent’s services will now also have to comply with certain ‘warranties of quality’.
Here the Act calls for the ‘timely performance and completion of services’ as well as ‘timely notice of any unavoidable delay in the performance of these services’.
It also stipulates that the manner and the quality of these services should be what the consumer is ‘entitled to expect’, she says.
An interesting aspect of this section, points out Broekmann, is that a demanding seller might read it as giving him the right to complain to the National Consumer Commission if a sale does not materialise or if the sale takes too long.
This would be a difficult proposition to defend - but it is a possibility.
Just how serious non-compliance with the act might be is shown by the penalties that the Tribunal is entitled to impose.
These can amount to 10 percent of the agency’s annual turnover in its previous financial year or R1 million, whichever is greater.
Furthermore, section 113 of the act provides that the principal is ‘jointly and severally’ liable for the misdemeanours of his estate agents.
Broekmann recommends that principals insist on an indemnity before signing a mandate.
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