The Property Professionals Act came into force in February 2022, bringing many changes to the way you buy or sell a home in South Africa.
According to law firm Cliff Decker Hoffmeyer, one of the key changes to Section 67 of the Act requires estate agents to obtain a ‘disclosure form’ from a seller or landlord and provide it to a buyer or buyer before a representation is completed. Rent before you offer.
Part One states that a property practitioner must:
- Refusal to accept an order unless the seller or lessor of the property has submitted a fully completed and signed declaration of obligation in the prescribed form;
- Provide a copy of the completed mandatory disclosure form to a buyer or tenant who wishes to make a property purchase or lease offer.
- A completed mandatory disclosure form, signed by all parties involved, must be attached to any agreement for the sale or lease of property and form an integral part of the agreement, but if the disclosure form is not completed, signed or attached, the agreement must be construed as not disclosing any defects or defects in the property to the buyer.
- A malpractice attorney may be held liable by an injured consumer.
A disclosure form is a standard model document prescribed by law and must be signed by all parties and attached to the sale or lease agreement.
In addition, a real estate professional must keep all mandatory disclosure forms related to the financing, sale, purchase or rental of property for five years.
What if no disclosure form is attached to the sale or lease?
“Section 67(2) is clear as to the effect on property agreements,” said Cliff Decker Hofmeier.
“If a disclosure form is not signed and attached, the statute provides that the agreement must be construed as not disclosing any defects or defects.”
What if no official form is attached to the order?
Circumstances may arise when a seller or lessor lives abroad, and accordingly, because the condition of the property is not within their knowledge, they may refuse to fill out this form.
“The language of Section 67(1)(a) is clear. Cliff Decker Hoffmeyer says the estate agent should not accept representation until they receive a properly completed and signed disclosure form.
“Regulation 38 provides that a contravention of section 67(1) is a simple contravention which carries a fine of R15,000. The biggest issue, however, is the realtor’s personal risk of liability for defects in the property.
The most important risk is related to the sale of property. If no disclosure document is attached to the order and the realtor accepts the order from the selling brokers, the sale agreement will be read as not disclosing any defects or defects in the property, the firm said.
“The risk is that if there are such defects or defects known to the seller but not included in the contract of sale, the realtor may be asked by the buyer.”
- Commentary by Justine Krige and Mohamed Ziad Gatto or Cliff Decker Hofmeyr.
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