The Property Charter

Property Charter


If you need any information on the property charter you may find the following site useful: www.propertycharter.co.za

This website gives detailed information about transformation within the property sector and, in particular, to the implementation of the property sector charter. It contains explanations of how the Charter works on a practical level.

There is in existence a Property Sector Charter Council, the composition of which is listed on the above website. There is also a copy of the Constitution of the Council on the website.

It must be kept in mind that the property sector charter has been gazetted in terms of section 12 of the BEE Act, and is thus an expression of commitment to transformation by the property sector. The property sector charter is not, however, a binding document.

Companies who are committed to complying with the goals set in the charter often call in an independent ratings agency to determine their extent of compliance. Once a ratings agency has rated the transformation in a company it will issue a certificate reflecting the extent of compliance. There is no formal reporting requirement for companies in the property sector at the moment. Listed companies may, however, publish information as to the extent of compliance on their websites and in their annual reports.

As stated above, because the property sector charter has been published in terms of section 12 it is not a set of binding requirements. However, whether the goals set out in the charter have been attained may be relevant, for example, where a tender is made for work from the state. The panel evaluating the tender will ask questions regarding transformation and the answers to these questions are relevant in determining who the tender will be awarded to.

(This text is adapted from an email received by Charl Heydenrych from Nikki Stein, a candidate attorney at Bowman Gilfillan, in Johannesburg - 17 April 2008)

Obtain your FETC:Real Estate!

Contact:
Charl Heydenrych
082 637 3710
011 672 9019
proplib@tiscali.co.za

Property, whose property? It has been expropriated!

Free Market Foundation director, Temba Nolutshungu, recently commented to Realestateweb on the Expropriation Bill that has now been introduced into Parliament. A report on his comments is reproduced below as well as links to view the full article and to download the Bill.

The Bill is available at http://www.info.gov.za/gazette/bills/2008/b3-08.pdf

It is no longer a draft Bill but a full-blown Bill that has been introduced into Parliament, that is why the info has to change.

Eustace Davie
Director
Free Market Foundation
Tel: 011 884 0270
Fax: 011 884 5672
Email: fmf@mweb.co.za
Website: www.freemarketfoundation.com




Property: ANC's land expropriation policy slammed

A leading former black consciousness activist has called the race-based policy and ANC resolutions on land policy 'utterly despicable' and 'repugnant' and says the country should focus attention on policies that will help fuel much-needed economic growth instead. As reported in Legalbrief Today last week, the SA Property Owners Association, Sapoa, issued a cautiously-worded statement in a tone of resignation around land expropriation. It said it was of the view that the adoption of the Bill would provide adequate protection for land and property owners in the event of expropriation'. The ruling party wants to see at least one in three farms 'redistributed' over the next five years, among its property-related plans. But according to a Realestateweb report, Temba Nolutshungu, respected Free Market Foundation director and a former black consciousness movement activist of the late 1960s and 1970s, said SA should forget about land expropriation. Land grabs should be 'scrapped alto
gether' and the political leaders
should instead apply their minds to developing policies to help get the economy growing at 8%. Farms that have been handed over on a restitution basis so far are lying fallow in many cases, he noted, which is 'evidence' you can't just hand over commercially productive agricultural land to the inexperienced and expect a positive result. Instead of expropriating land currently in the hands of white farmers, the government should hand over state land to emerging farmers, he suggested. Nolutshungu added that the fact that expropriation is to be conducted on a 'racial basis' was 'a very bad idea'. 'I find it so utterly despicable and repugnant that we can still issue racially discriminatory policies. It is something I feel strongly about. It is not right at all. I can't come to terms with the fact that our statutes reflect racially-oriented policies,' he said.

Full Realestateweb report


Draft expropriation policy paper (PDF file)

http://www.legalbrief.co.za/publication/archives.php?mode=archive&p_id=Legalbrief_Today&issueno=2000&format=html

Tough times ahead

Up to 15 000 estate agents could be out of business by the end of the year, the Business Day reported on Monday. 14/04/08
Herschel Jawitz, CEO of Jawitz Properties, said the market would find a "fairly significant fall off" in the number of registered estate agents this year.
"It could be as much as a 15% to 20% fall off, which translates into around 10 000-15 000 fewer estate agents," said Jawitz.
He said there were about 80 000 estate agents registered with the Estate Agency Affairs Board.
He said the challenge for estate agents at the moment was less a matter of property prices and much more the volume of home sales, which had also declined by as much as 20% year-on-year

The sign of the devil - Agent off the hook

Taljaard v Botha Properties (666/06) [2008] ZASCA 38 (28 March 2008)

CASE NO: 666/06

Some people may say this is the Sign of the Devil – if you look at the case number.

But, not to pay the agreed commission to an agent that does not have a fidelity fund certificate is not on – they had a deal the judge said.

The estate agency (Botha Properties) has won a court victory that will support estate agents who sell property without having a valid fidelity fund certificates.

The Supreme Court of Appeal of SA ruled that a seller does not have the right to have commission returned if it emerges that the estate agent was operating without a fidelity fund certificate.

The delay in issuing of Fidelity fund certificates by the EAAB are a sore point in real estate sales' circles right now - A war of words is taking place in the media between agents and Ms Mapetla of the Estate Agency Affairs Board (EAAB), after it emerged that many estate agents are not in possession of valid fidelity fund certificates.

According to the previous interpretation of the law, estate agents who do not have a valid certificate when they act as agents are not entitled to commissions earned. This seems to have been overturned by this case. As judge Nugent said:

“It seems to me that that misconstrues the purpose of the section. It was not enacted for the benefit of clients who have incurred a contractual obligation to pay remuneration to an estate agent who has performed his or her mandate – I have already held that the contract giving rise to the obligation remains valid notwithstanding the breach of s 26 – but rather to penalize estate agents who have breached the section. An estate agent who claims remuneration in conflict with s 34A might expose himself or herself to criminal sanction, and will be prevented from enforcing his or her claim, but I do not think it follows by necessary implication that a client who has settled his or her contractual obligation is accorded a right of action for its return.”

Nugent dismissed the client's appeal with costs.

Who's to blame?

The Estate Agency Affairs Board (EAAB) has denied accusations from the Institute of Estate Agents of South Africa that the board is incompetent. The issue is that estate agents are operating without certificates and they reckon that the board has failed to issue them.

It is law that agents must have a fidelity fund certificate to be able to practice legally. CEO of the EAAB, Nomonde Mapetla, said (according to an article on the SABC website) that the fault lies squarely at the door of the estate agents. “It is their duty in terms of the law to ensure that they get these certificates...that they make the necessary submissions even at the end of their financial year to ensure that they don't get blocked...those that are blocked have not submitted their audited trust accounts. Last year we did inspections for the first time in 30 years and were able to discover this and therefore started blocking people...”

The SABC site also mentions that the President of the Institute of Estate Agents of South Africa, Willie Marais, said the board was inefficient.

My focus is on the new Qualification requirements - Let us all work in a way that will ensure that we do not have a similar crisis when the deadline arrives!

Take action now and avoid the inevitable crunch that I predict will happen - thousands of agents not having the fidelity certificates because of ... Who will be to blame?!

To the point - what a fantastic response!

I received the following letter from an agency after receiving the "to the point" checklist.

"Thanks Charl - quite an interesting checklist - my agents have a weekly
training session.. on top of that they do a one month intensive course that
I have designed when they join my company (even if they are experienced).

We are currently very small, however my goal is to produce high income
earning agents - not one great performer and nine below average sales
people. They receive weekly goals and a daily allocation sheet of tasks
that need to be done. Already from this framework I have spotted a few
points that I have failed to address in my current program and training eg.
Money laundering - not much focus on this.

I will print it off and run through the checklist with each individual agent
and provide more feedback then.

Thanks again"
(reprinted with permission)

...and this is the whole purpose - to develop a living and practical tool, that will lead to agents easily being able to collect the evidence necessary to meet the requirements of the Further Education and Training Certificate: Real Estate. This together with the "paint by numbers" toolkit will save you time, money and agony. Talk to me - order your free "to the point" instrument and invest in the "paint by numbers" file; also ask about the free "palette" resource guide and "the outside of the box" all tools to make it easy to attain Recognition of Prior Learning and get your FETC: Real Estate (SAQA ID 59097) to be able to keep on selling property after December 2011!

Here is the "Outside of the Box"

This weekend (15-16 March 2008) I photographed the entire Portfolio of Evidence that one of my learners handed in to be RPLed on the Further Education and Training Certificate: Real Estate (SAQA ID 59097). I have not yet assessed it and the process has not been moderated but I thought it would be useful as is to my other learners that wish to see an example of a possible end product(and to you!).

I have blackened out some portions - a) to protect identities b) to protect some copyright material and c) to limit plagiarism (the copying of answers without wrapping your own mind round the subject matter). Still I think it will be a useful model to anybody wishing to compile his her own portfolio of evidence (POE) for RPL purposes of the FETC: Real Estate and to a person learning the job of an estate agent as a candidate.

If you wish to have a copy of this 180 image file - I will be selling it as soon as I have sorted out some issues (most probably around R 300 plus VAT).

8. Managing Agents are not excluded.

In terms of the act a person who collects rent or receives levies must also register as an Estate Agent with the EAAB (Estate Agency Affairs Board) and have a valid Fidelity Fund Certificate. This means, according to my interpretation, that they too have to meet the requirement of having completed the Further Education and Training Certificate: Real Estate by December 2011. Though the qualification is largely aimed at residential Real Estate practitioners, the evidence that manging agents need to produce to demonstrate their competency can be slanted towards the work that they perform.

Another interesting point must be noted when a member of the public wants to claim from the fideliy fund:
A. [i] A person must suffer pecuniary loss (loss of money)
[ii] The loss must be as a result of theft.
[iii] The monies stolen must be trust monies.
[iv] The theft must be committed by an estate agent.

Now here is the interesting point - the EAAB website says: "It does not matter whether or not the agent was registered with the Board or had been issued with a fidelity fund certificate. All that is required is that the claimant prove that the person he dealt with acted as an estate agent. [The definition of an estate agent is contained in the Act]."

Talk to me if you wish to obtain the qualification - there are many routes to get there. Add a cellphone number to the cellphone directory here.
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