THE PROPERTY PRACTITIONERS ACT 22 OF 2019
The Property Practitioners Act 22 of 2019 (“Property Practitioners Act“) was signed into law by our president Cyril Ramaphosa during September 2019. The date of commencement of the Act is still to be determined but the Act will govern all property practitioners and not only estate agents. The Act will be implemented through the Property Practitioners Regulatory Authority, which will replace the Estate Agency Affairs Board.
A property practitioner needs to be aware of the following clauses within the Property Practitioners Act:
The Act will be enforced by inspectors who will have a wide range of search and seizure powers, granted in terms of section 25. Inspectors will be able to enter business premises (not private residences) without a search warrant and demand access to records or documents. If an inspector wishes to have access to a private residence from which a business is being conducted, advance notice must be given.
In terms of Section 47(1) of the Property Practitioners Act, every property practitioner, must, within the prescribed period and in the prescribed manner, every three years apply to the Authority for a Fidelity Fund certificate.
In terms of Section 48(1) of the Property Practitioners Act, no person or entity may act as a property practitioner unless, in addition to any other requirements provided for in or under this Act, he or she or it has been issued with a Fidelity Fund certificate contemplated in Section 47 of the Property Practitioners Act.
Section 50(a)(x) of the Property Practitioners Act requires all property practitioners to be in possession of a valid black economic and empowerment certificate (“BEE certificate”) in order to renew their Fidelity Fund Certificate.
Therefore, a practitioner will not be able to practice in South Africa without Fidelity Fund Certificate and a practitioner may not be issued a Fidelity Fund certificate without a valid BEE certificate. It seems that a practitioner just needs only have a certificate and need not have a certain level of BEE compliance.
For many estate agencies, this will be a new requirement for them to comply with and it would be useful for them to become familiar with the BEE codes governing the property sector.
The property sector is governed by the Property Sector Transformation Charter Code and the Amended Property Sector BEE Code of 2017. The Amended Property Sector Code was published in the Government Gazette on 9 June 2017. This amended sector code applies in particular to all enterprises engaged in property ownership or the provision of property services. The Amended Codes determine the following categories for real estate agencies:
Exempted Micro-Enterprise (“EME”) are businesses falling below certain thresholds that allows them to be totally exempted from specific compliance with BEE requirements. Estate agencies are treated as EME’s, and exempt from the B-BBEE requirements, if their annual turnover is below R2.5 million. An EME is deemed to have a BEE Status of "Level Four Contributor" having a B-BBEE recognition level of 100% as per the Amended Codes of Good Practice recognition level. Subject to certain qualifications, a new business will be treated as an Exempted Micro Enterprise for the first year.
Qualifying small enterprises (“QSE”) is an estate agency having an annual turnover of over R2.5 million and below R35 million. A QSE must comply with all of the elements of B-BBEE for the purposes of measurement. A QSE which is 100% Black owned qualifies for an elevation to Level One contributor of B-BBEE recognition level and a QSE which is at least 51% Black owned qualifies for an elevation to level Two contributor of B-BBEE recognition level. In these circumstances of ownership, the company is only required to obtain a sworn affidavit or Certificate from the Companies and Intellectual Property Commission (“CIPC”) on an annual basis.
Estate agencies with an annual turnover of more than R35 million will fall into the Generic (unlimited) category. A generic company has to go through a full BEE audit.
The consequences of a practitioner not having a valid Fidelity Fund Certificate can be dire. If a practitioner was involved in a transaction and did not have a valid Fidelity Fund Certificate at the time of the transaction, then he/she may not claim commission. Should commission be paid and not returned on demand, the property practitioner may be found guilty of a criminal offence. Therefore, in order for a property practitioner to enforce the collection of remuneration (commission) without the likelihood of having to pay the seller back, a valid Fidelity Fund Certificate must be held for all property practitioners within the agency or business.
For further assistance/information, kindly email Phillip Silver Mathura at firstname.lastname@example.org