DEPARTMENT OF HUMAN SETTLEMENTS
NOTICE 139 OF 2020 139 Property Practitioners Regulations, 2020: For public comment 430731
PROPERTY PRACTITIONERS REGULATIONS, 2020
The Minister for Human Settlements, Water and Sanitation, Lindiwe Nonceba Sisulu published the draft Property Practitioners Regulations for public comment on the 6th of March 2020. See below a breakdown of the Property Practitioners Regulations draft:
1.1 Unless the context indicates otherwise, words that are defined in the Act shall be
ascribed their meaning, and –
1.2 "Act" means the Property Practitioners Act, No 22 of 2019;
1.3 “appellant” means the person referred to in section 31 (1) of the Act;
1.4 "Authority" means the Property Practitioners Regulatory Authority established under
section 5 of the Act;
1.5 "candidate property practitioner" means a person referred to in section 1 of the Act;
1.6 “case presenter” means the person appointed or designated in terms of regulation 15.m);
1.7 “charge” means a charge of sanctionable conduct which shall be brought against any
1.8 "client" means a person who has given a property practitioner a mandate, provided that
should a property practitioner have conflicting mandates in respect of a particular
immovable property, the person whose mandate has first been accepted by the property
practitioner, is regarded as the client;
1.9 “code of conduct” means the code of conduct referred to in section 61 (1) of the Act;
“compensatory award” means the compensation referred to in section 30 (7) (b)) of the
1.10 “complainant” means any person who lodged a complaint against a property practitioner
in terms of section 28 (1) of the Act;
1.11 “complaint” means a complaint concerning the conduct deserving of sanction against any
property practitioner acting in his or her capacity as such;
1.12 "effective date" means the date upon which these regulations come into operation;
1.13 "Fidelity Fund" means the Property Practitioners Fidelity Fund contemplated in section 34
of the Act;
1.14 "franchise" means an agreement, arrangement or understanding between a franchisor
and a franchisee property practitioner in terms of which the latter is entitled or required to
operate under a trade name which is owned by, or which is associated with the business
of, the franchisor or any other person;
1.15 "immovable property" means property as defined in section 1 of the Act;
1.16 "mandate" means an instruction or an authority given to, and accepted by, a property
practitioner to render a service;
1.17 “mediator” means a mediator appointed in terms of section 29 (2) of the Act;
1.18 "Minister" means the Minister of Human Settlements and includes his or her successor in
1.19 “non-principal property practitioner” means any person referred to in paragraph (e) (ii) of
the definition of ‘property practitioner’ in section 1 of the Act;
1.20 “notice of appeal” means the notice referred to in section 31 (1) of the Act;
1.21 “NQF” means the National Qualifications Framework as defined in section 1 of the South
African Qualifications Authority Act, 1995 (Act No. 58 of 1995);
1.22 “principal property practitioner” means any person referred to in paragraph (a) or
paragraph (e) (i) of the definition of ‘property practitioner’ in section 1 of the Act;
1.23 “Professional Designation Examination” means an integrated test of knowledge for
property practitioners agents contemplated in regulation 33.i);
1.24 "property practitioner" means a person defined in section 1 of the Act, including a
candidate property practitioner;
1.25 “property practitioner charged” means the property practitioner as defined in the Property
1.26 “respondent” means a property practitioner against whom a complaint or a charge has
1.27 “record” means the record of the proceedings before the adjudication appeal committee;
1.28 "regulations" means these regulations, and "regulation" means a provision of these
1.29 "sanctionable conduct" means a sanctionable conduct as contemplated in the Act;
1.30 "service" means any service referred to in subparagraphs (i)-(vi) of paragraph (a) of the
definition of "property practitioner" in section 1 of the Act; and
1.31 "sole mandate" means a mandate incorporating an undertaking on the part of the person
giving the mandate, not to confer a similar mandate on another property practitioner
before the expiry of a determined or determinable period
TRAINING, CONDUCT AND CONSUMER PROTECTION MEASURES
STANDARD OF TRAINING
Candidate property practitioners
a) A person who, as from the effective date, intends to become a property practitioner must serve as a candidate property practitioner, under the supervision of a principal property practitioner or a qualified property practitioner of at least three years' experience, for a continuous period of 12 months from the date of the first issue to that person of a candidate fidelity fund certificate by the Authority.
b) In the event of a candidate property practitioner being absent from the service contemplated in regulation a), for any reason whatsoever, for a continuous period exceeding 30 days during the compulsory candidateship period -
i) the number of days of absence exceeding 30 days; and
ii) an additional number of days amounting to one half of the period of absence from service exceeding 30 days, will be added to the compulsory candidateship period.
c) In the case of a candidate property practitioner having failed to comply with the educational requirements contemplated in these regulations during the compulsory candidateship period contemplated in regulation a), the candidateship period must be extended for a further period until such time as the candidate property practitioner has duly complied with educational requirements, after which a full status fidelity fund certificate may be issued to the candidate property practitioner by the Authority.
d) A candidate property practitioner may not perform any act as a property practitioner unless the candidate property practitioner -
i) has duly disclosed as far as practically possible in relation to the candidate property practitioner's activities as a property practitioner, excluding authorized advertisements in the press, that the candidate property practitioner is a candidate property practitioner; and
ii) is acting under the active supervision and control of a principal property practitioner or of a full status property practitioner, which supervision and control may be exercised either in person or by means of any electronic medium or application allowing the property practitioner to maintain immediate contact with the candidate property practitioner.
e) A candidate property practitioner may not -
i) in any way, directly or indirectly, hold himself or herself out as someone who or advertise that he or she has complied with the educational requirements contemplated in these regulations;
ii) in any manner act or hold himself or herself out as a full status property practitioner; or
iii) in his or her capacity as a candidate property practitioner, complete or draft any documentation relating to any transaction negotiated by him or her in his or her capacity as a candidate property practitioner, otherwise than under the supervision of a principal property practitioner or a property practitioner contemplated in regulation (g)i)), and who certifies on the documentation in question that the said documentation has been completed under his or her supervision.
f) The principal property practitioner contemplated in regulation (d)ii)) shall be responsible for all acts of a candidate property practitioner done in his or her capacity as such, of which the principal property practitioner is aware.
g) No person may perform the functions and activities of -
i) a non-principal property practitioner, unless that person has completed the Further Education and Training Certificate: Real Estate (SAQA QUAL ID 59097); or
ii) a principal property practitioner unless that person has completed the National Certificate: Real Estate (SAQA QUAL ID 201 88).
h) The Further Education and Training Certificate: Real Estate and the National Certificate: Real Estate referred to in regulation (g)i)) will be a prerequisite for admission to the Professional Designation Examination for property practitioners.
i) No person may be registered by the Authority as a full status property practitioner unless that person has also successfully completed the Professional Designation Examination conducted by the Authority.
Continuing Professional Development
q) In addition to the educational qualifications referred in regulation g), the Authority may, at any time, prescribe any reasonable Continuing Professional Development requirements as contemplated in the NQF.
r) All property practitioners are required to do Continuing Professional Development, other than candidate property practitioners during the first two years of their candidacy.
CODE OF CONDUCT: RESIDENTIAL PROPERTY PRACTITIONERS
General duty to protect the public's interest
a) In terms of a property practitioners' general duty to members of the public and other persons or bodies, a property practitioner -
i) shall not in or pursuant to the conduct of his business do or omit to do any act which is or may be contrary to the integrity of property practitioners in general;
ii) shall protect the interests of his client at all times to the best of his ability, with due regard to the interests of all other parties concerned;
iii) shall not in his capacity as a property practitioner wilfully or negligently fail to perform any work or duties with such degree of care and skill as might reasonably be expected of a property practitioner;
iv) shall comply with both the Act and these regulations;
v) shall not through the medium of a company, close corporation or third party, or by using such company, close corporation or third party, or by using such company, close corporation or third party as a front or nominee do anything which would not be permissible for him to do if he were operating as a property practitioner;
vi) shall not have any interest, whether directly or indirectly in any legal practice that provides conveyancing services to the clients and customers of such property practitioner or any sole proprietorship, partnership, company, close corporation, business trust or similar entity in which that property practitioner holds a direct or indirect interest.
Duty not to make misrepresentations or false statements or to use harmful marketing techniques
e) No property practitioner shall -
i) in his capacity as a property practitioner publish or cause to be published any advertisement which could create the impression that it was published by the owner, seller or lessor of immovable property, or by a prospective purchase or lessee of immovable property;
ii) wilfully or negligently, in relation to his activities as a property practitioner, prepare, make or assist any other person to prepare or make any false statement, whether orally or in writing, or sign any false statement in relation thereto knowing it to be false, or knowingly or recklessly prepare or maintain any false books of account or other records;
iii) claim to be an expert or to have specialised knowledge in respect of any service if, in fact, he is not such an expert or does not have such special knowledge;
iv) advertise or otherwise market immovable property in respect of which he has been given a mandate to sell or let, at a price or rental other than that agreed upon with the seller or lessor of the property;
v) without derogating from the generality of the aforegoing –
1. wilfully or negligently mislead or misrepresent in regard to any matter pertaining to the immovable property in respect of which he has a mandate;
2. use any harmful or misleading marketing technique or method to influence any person to confer upon him a mandate to render any service or to sell, purchase, let or hire immovable property, having regard to the general experience which such person has concerning property transactions and the circumstances surrounding the transaction or proposed transaction;
vi) use any firm or trading name in respect of his business if such name may give rise to confusion on the part of the public in respect of the nature of the business carried on by him;
vii) inform a seller or purchaser, or prospective seller or purchaser, of immovable property in respect of which he has been given a mandate to sell or purchase, that he has obtained an offer in respect of the property from a purchaser or seller (as the case may be), unless such
1. is in writing;
2. has been signed by the offeror; and
3. is, to the knowledge of the property practitioner concerned, a
bona fide offer;
viii) affix any board or notice to immovable property indicating that such property is for sale or hire or has been sold or let, unless –
1. the seller or lessor (as the case may be) has given his written consent to do so; and
2. the property practitioner concerned in fact has a mandate to sell or let the property, or in fact has sold or let the property, as the case may be.
Duties in respect of offers and contracts
f) No property practitioner -
i) who has a mandate to sell or purchase immovable property shall wilfully fail to present or cause to be presented to the seller or purchaser concerned, any offer to purchase or sell such property, received prior to the conclusion of a contract of sale in respect of such property, unless the seller or purchaser (as the case may be) has instructed him expressly not to present such offer;
ii) who has a mandate to sell immovable property, may present competing offers to purchase the property in such a manner as to induce the seller to accept any particular offer without regard to the advantages and/or disadvantages of each offer for the seller;
iii) shall amend any provision of a signed offer, prior to rejection thereof, or a written mandate or any contract of sale or lease, without the knowledge and express consent of the offeror or the parties to the contract, as the case may be.
g) A property practitioner shall -
i) explain to every prospective party to any written offer or contract negotiated or procured by him in his capacity as a property practitioner, prior to signature thereof by such party, the meaning and consequences of the material provisions of such offer or contract, or, if he is unable to do so, refer such party to a person who can do so;
ii) if he knows that an offer submitted by him as a property practitioner to any party has been accepted, or has not been accepted by the expiry date thereof, forthwith notify the offeror of such fact; and
iii) without undue delay furnish every contracting party with a copy of an agreement of sale, lease, option or mandate with which he is concerned as a property practitioner, provided that the aforegoing shall also apply in respect of an offer to purchase or lease if the offeror specifically requests a copy thereof.
This gazette is also available free online at www.gpwonline.co.za for those who want to read the entire draft.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).