Agents are a vital go-between during property transactions

Property transfers are a crucial component in the economy of every country. Such transactions are also a very personal process for the buyers and sellers. Sellers could be selling a home that has been a safe haven for their family; one which holds many memories and sentiment. Buyers could be buying their first home, one which they hope to fill with just as many memories. So, conveyancing is more than just an economic process, it is in most instances a very personal transaction as well.

Choosing the right estate agent and conveyancer to manage the property transfer process is vital. It is usually smooth sailing when the agent, seller, buyer and conveyancer have clear and open communication amongst themselves.

An estate agent acts as the middle-man of the transaction, acting in the best interest of both parties. The Estate Agents Act 112 of 1976 defines an estate agent as “any person who for the acquisition of gain on his own account or in partnership, in any manner holds himself out as a person who, or directly or indirectly advertises that he, on the instructions of or on behalf of any other person;

• sells or purchases immovable property or any interest in immovable property or any business undertaking or negotiates in connection therewith or canvasses or undertakes or offers to canvass a seller or purchaser therefor; or
  
• lets or hires immovable property or any interest in immovable property or any business undertaking or negotiates in connection therewith or canvasses or undertakes or offers to canvass a lessee or lessor therefor; or
  
• collects or receives any moneys payable on account of a lease of immovable property or any business undertaking.

Act 112 of 1976 also makes provision for the estate agents board which maintains and promotes the integrity of the agents.

An estate agent has the duty to act in good faith. The agent is obliged to carry out the mandate, exercise care and diligence, impart information, advise, act in good faith, and lastly account to the client as well as the conveyancer.

It is important to note that an estate agent has to apply for a fidelity fund certificate – this certificate must be approved by the estate agents board, is renewed every year and may be revoked under certain instances as set out be the Act.

No person, without a valid fidelity fund certificate, may act as an estate agent.

Thus, when buying and selling a property, make sure that the agent is clear on the mandate, that there is open communication and that the fidelity fund certificate is valid. When these are not in place, there has been misrepresentation as an agent. Agents are a vital go-between during property transactions.