NEW LEGISLATION IN THE PROPERTY INDUSTRY
Category October 2019
Two new property bills have been signed into legislation by our State President after much public debate, but it must be pointed out that they have not yet been promulgated and are not yet in force and effect.
The Property Practioners Act is set to replace the Estate Agency Affairs Act which has served the industry for the past forty three years and introduces some welcome provisions to enhance professionalism across the industry. The new definition of a Property Practioner shall include bond originators, business brokers and managing agents and anyone who "collects or receives any monies payable on account of a lease of property or a business undertaking". All such practioners shall be obliged to hold a Fidelity Fund Certificate and property practises with a turnover in excess of two million rand to be in possession of tax clearance and BEE certificates. In addition, property franchisors shall be liable for the conduct of their franchisees; this will have far-reaching implications possibly resulting in changes in the current franchise model.
The Act also places responsibility on both sellers and agents regarding property defects disclosures. It shall be compulsory for all sellers to provide a comprehensive list of all defects and no agent may accept a mandate from any seller without a full defect disclosure document. Further, all records relating to a property transaction shall be kept for a period of ten years although there is provision for electronic storage.
The Electronic Deeds Registration Systems Act would seem to be new legislation that is of little interest or concern to anyone other than property practioners impacted by the conveyancing process. But South Africa is one of very few jurisdictions in the world where our property registration system, which is a manual system, confirms secure ownership of property without the need for title or ownership insurance. This makes the process of transferring property on sale or inheritance much easier and quicker. It also enables a property owner to use that property as security for loans without the complication and expense of ownership insurance. Property is a useful tool in the economy.
But there are nearly a million owners of RDP homes who do not have title deeds to their properties. While this is not so much the fault of the Deeds Registry as it is the various provincial offices of Human Settlements, the Act proposes an electronic deeds registration system that will enable large scale handling of deeds. The RDP housing program is the biggest of its kind in the world delivering over three million homes in twenty years enabling people to participate more fully in the economy through their ownership of land by upgrading and improving, selling and accessing capital via mortgages.
This is very much reflected in former President Motlanthe's address to the Real Estate Industry summit this month; Motlanthe has led the High Level Panel on Land Reform since 2015 and he says Expropriation Without Compensation will not happen. "Property has got to be protected. Property has value" Land reform needs to be addressed primarily by giving title deeds in urban areas where the need for property is most acute. This can be done without expense and quickly enough to address the desperate land hunger of the broadest section of South Africans. The Electronic Deeds Registration Systems Act can address these very issues.
Author: Bronwen Woodward