Cynthia Nashandi
The Namibia Estate Agents Board frequently insists on the further education and practical training of property practitioners beyond the preliminary training offered by the Board.
In addition to the Real Estate Agents Qualifying Examination and furnished course material, the Board conducts annual workshops and seminars to promote credibility and professional capacity amongst real estate agents.
In emphasising that objective, the Bill intends to institute a prerequisite to practice as a property practitioner.
The Bill states that persons must undergo tutelage [for a prescribed period], overseen by a registered property practitioner to be bestowed with the certification of a property practitioner.
The following restrictions apply to intern property practitioners:
1. An intern may not purport him/herself to be a property practitioner.
2. Interns shall not draft or complete any document or clause in a document –
2.1 conferring a mandate to perform an act ordinarily performed by a property
practitioner, or
2.2 relating to the sale or lease of immovable property.
Property practitioners who negligently or intentionally allow interns to perform such prohibited actions shall not be entitled to remuneration or damages in respect of any document so drafted or for bringing about the transaction embodied in such document.
Franchising
Franchisee property practitioners operate in terms of a franchise license or agreement adopted from a trademarked brand (international or domestic).
The Bill mandates franchisee property practitioners to categorically state such a fact in all communications, advertising, and marketing materials and specifically indicate the franchisor’s name.
Notwithstanding the franchisor holding a Fidelity Fund Certificate, the franchisee must obtain an FFC for the respective franchise.
The Estate Agents Code of Conduct provides for a similar directive; however, the implication for the contravention of an Act is heightened in contrast to the class of misconduct.
Mandatory disclosure form
Disclosure is significant for the buyer or lessee’s decision-making and ultimate assessment of the property on offer.
The burden of disclosure is binary.
In principle and by standard practice, buyers ought to take the necessary steps to inspect a property for defects and establish its physical status before binding themselves to a transaction.
Equally, a seller is expected to be transparent and engage in good faith by disclosing the true condition of the product.
However, to date, legislation has not imposed legal implications for the failure to disclose nor provided for the mandatory duty to disclose as set out in the Bill.
The Bill intends to revise the status quo.
Section 62 prohibits property practitioners from accepting a mandate from a seller or lessor without a completed and signed disclosure form (as prescribed).
Consequently, a mandate shall be incomplete and of no effect without an attached disclosure form.
A prospective purchaser or lessee intending to make an offer must be furnished with such a form.
Disclosure forms shall constitute an integral component of a sale or lease agreement.
Failure to comply with the aforestated is tantamount to non-disclosure on the part of the seller or lessor.
Accordingly, the applicable consequences of the law shall follow.
Complaints procedure
At present, as guided by the prevailing Act, the Board attends to the investigation, adjudication and resolution of complaints received.
The Bill intends to establish internal complaints and dispute resolution mechanisms that will allow aggrieved members of the public to find recourse.
In respect of monitoring compliance and investigating possible contraventions of the Act, the Board appoints an inspector.
The inspector is mandated upon his/her discretion or upon receipt of a complaint to conduct searches for collection of evidence and detection of wrongdoing.
Where on face value, evidence indicates a criminal contravention of the provisions of the Bill, the inspector shall be required to refer the matter to the office of the prosecutor general.
The following measures of resolution are provided for in the Bill:
1. The inspector may issue a compliance notice call, upon the alleged non-compliant property practitioner to comply with the provisions of the Bill within a given period. A fine may be payable for any contraventions.
2. Where deemed appropriate for the specific dispute, the inspector may refer the matter for mediation. The Bill grants the parties 30 days to resolve the matter. The parties must reduce the resolution to a written agreement observed as settlement.
3. Complaints of a serious nature or that fail to conclude terms of the former remedies are referred to adjudication. An independent legal practitioner (“Adjudicator”) shall be appointed to preside over the matter. The Adjudicator must make a ruling to uphold or dismiss the complaint and deliver an order as he/she deems appropriate. Such order shall have the status of an order of the Magistrate’s Court and must be executed accordingly.
The remedies listed above do not preclude complainants from instituting civil or criminal action against a property practitioner, where the law and context allow. However, in respect of the theft of trust money, persons must firstly lay a criminal charge against the property practitioner before approaching the Board to claim compensation for the loss.
The disciplinary procedure relating to improper conduct, as listed in the Act and the Bill, remains in effect according to the Estate Agents regulations (Published under GN R1263 of 22 June 1984 – how a charge of Improper Conduct against any Estate Agent shall be brought and investigated) and shall be adjudicated by a disciplinary committee, established in terms of section 15 of the Bill.
Complainants who succeed in their claims for monetary loss, occasioned by the conduct of a property practitioner, may claim the funds awarded in terms of a court order or the Board’s dispute resolution framework from the Property Practitioners Fidelity Fund.
*The Property Practitioners Bill is available for perusal on the Excellist Real Estate Facebook page: @ExcellistProperty and on the Namibia Estate Agents Board website: www.neab.com.na. Members of the public are encouraged to submit their written comments and suggestions to the Namibia Estate Agents Board.
*Cynthia Nashandi is a real estate professional.