Practitioners Act

Implications of the PROPERTY PRACTITIONERS ACT

On 1 February 2022, the Property Practitioners Act (No. 22 of 2019; PPA) came into operation, bringing with it a series of new requirements. For property owners, it’s important to understand how the new Act influences and forces them into compliance with other property-related Acts and the role that the land surveyor plays in the compliance process. By Altus Strydom, GPr LS*

The PPA replaces the Estate Agency Affairs Act of 1976. Its main purpose is to establish the Property Practitioners Regulatory Authority, which will supersede the Estate Agency Affairs Board. The purpose of this new authority is to regulate the affairs of all property practitioners, to allow for transformation in the property sector, and to provide consumer protection.

Few people realise the significance of certain clauses and how it will affect the sale of their property, because this Act places the responsibility on the seller/landlord and indemnifies the agent if negative information regarding the property is not disclosed.

RELEVANT CLAUSES AFFECTING THE CONSUMER

Parts of the PPA that affect property owners are there to protect the consumer and here there are two major and significant sections.

Section 67: Completed and signed disclosure form

The agent must not accept a mandate unless the seller or lessor of the property has provided them with a fully completed and signed mandatory disclosure in the prescribed form; and must provide a copy of the completed mandatory disclosure form to a prospective purchaser or lessee who intends to make an offer for the purchase or lease of a property.

The completed form must be signed by all parties and attached to the agreement of lease or sale. If such a form was not completed and attached, it is understood as if no defects or deficiencies of the property were disclosed to the purchaser.

Section 58: Limitation on relationships with other property market service providers

The PPA prohibits the practice in which a practitioner provides a consumer with an incentive to use a particular conveyancer or service provider.

Property practitioners who contravene this section of the PPA are not entitled to remuneration and must repay it to the consumer and may even be fined. The purpose of this section is to prohibit agents asking for, or service providers offering, payment for services rendered.

COMPLIANCE FORM

Most of the questions on the form relate to parts of the property that are quite obvious or where certificates need to be issued in any case. These include but are not exclusive to items such as the roof, structures, sewerage system, electrical and so forth.

There are, however, questions where compliance is more complex. Here, a professional land surveyor (GPr LS) is the only professional qualified to answer. The relevant questions in this respect are:

- I am aware of a boundary line dispute, encroachments, or encumbrances in connection with the property

Geomatics Profession Act (No. 19 of 2013; GPA) and Land Survey Act (No. 8 of 1997; LSA)

A proper understanding of the words ‘encroachments’ and ‘encumbrances’ is required and extends beyond only encroachments in respect of property boundaries. It includes encroachment upon encumbrances where encumbrances include servitudes, title deed restrictions, building lines, land use rights, height of building, coverage, and floor area ratio.

Only a registered professional land surveyor is qualified to answer not only the question regarding boundary disputes and encroachments, but also encroachments on encumbrances such as the height of building, position of building line, the extent of the building, position of servitudes, coverage, floor area ratio, and positional restrictive conditions in the title deed which affects the property.

National Building Regulations (NBR) and Building Standards Act (No. 103 of 1997; BSA)

Section 11A specifies clearly that if in doubt the municipality will request the owner to appoint a GPr LS to verify the boundary of a property and confirm that the above does not affect the property.

Land Use Management Scheme (LUMS)

From a zoning certificate and the LUMS, the GPr LS can also confirm adherences or address contraventions of encumbrances. These can include land use, coverage, floor area ratio, number of storeys, etc.

- I am aware that any additions or improvements made to or any erections made on the property have been done or were made only after the required consents, permissions and permits to do so were properly obtained

The Sectional Tiles Act (No. 95 of 1986; STA) and Sectional Titles Management Act (No. 8 of 2011; STMA)

This question is very relevant, especially where sectional titles are concerned and illegal additions to buildings can contravene some or all of the above.

Once more, the land surveyor is the only person that may sign the certificates that these were adhered to when lodging an extension of a sectional plan.

- I am prepared to provide approved building plans of all the structures on the property to the purchaser.

Under normal circumstances, the local municipality will have copies of the approved building plans but, during the past 20 years, many plans were lost and misplaced when municipalities merged or moved offices. Most land surveyors deal with the municipalities in their area of operation and know where to find these plans if they still exist.

What are the effects if the consumer withholds vital information?

There are numerous negative effects but the most significant are that the seller (not the agent) will be liable if the purchaser lays claims for non-disclosure at a later date.

Some of the things that can go wrong are: - The owner (and agent) might lose a sale if the bond holder finds out that there are no approved plans, encroachments, or any of the matters mentioned above. - In the situation of rental property, the landlord can be held liable if somebody is injured where there is an illegal structure. Examples would include where a child drowns in a pool that is not fenced in; or a fire demolishes a building where a thatch lapa catches fire and no fire certificate was issued. - If at a later date a buyer finds out about matters mentioned above, the seller can land up in expensive court actions and be held liable for rezoning, building line relaxation and other costs. - Insurance claims will not be successful if there are no approved building plans. It is therefore in the interest of the buyer to ask for copies of approved plans. - The municipality can instruct you to demolish the illegal extension or encroachment (see

Section A 25 of the NBR). - If a building encroaches over a property boundary, it can lead to expensive subdivision applications and rezoning applications.

What the land surveyor can do to help the seller comply

The land surveyor can issue a land audit certificate to certify in respect of encroachments, encumbrances, rights, and restrictions relating to the property. Such a certificate will include reference to property boundaries, encroachments, encumbrances, encroachments on encumbrances, building alterations erected contrary to building plans, title conditions, land use and zoning stipulations.

It would be prudent if owners and landlords obtain such a certificate prior to selling or letting a property to minimise subsequent complications. It would also be prudent if buyers and tenants are more aware and ask for a land audit report issued by a professional land surveyor for assurances prior to entering contracts.

The key point to reinforce is that the PPA places the responsibility on the seller and landlord to comply with the Acts mentioned above. Clarification and compliance should therefore take place prior to the sale or lease of a property.

Aerial survey and cadastral overlay *Chairperson: Northern Provinces, South African Geomatics Institute