29 April 2022

Mandatory Disclosures in Property Sales

Submitted by SchoemanLaw Inc

Whether you are looking to purchase or rent a new property, the process of finding a new place to call home can be both exciting and quite terrifying at the same time. Although purchasing or renting a property is considered one of the most significant financial decisions a person can make, many South Africans may fail to spot issues with a particular property during their initial inspection. As a result, latent and patent defects and the voetstoots clauses tend to be at the centre of many property disuptes between buyers, sellers, tenants, and landlords.

Although property practitioners, previously known as estate agents,  ensure that they obtain as much information about the property’s condition from the sellers and landlords as possible to disclose this information to potential buyers and tenants, one or two issues may still be missed. 

What is the Property Practitioners Act (“PPA”)? 

The Property Practitioners Act 22 of 2019 (“PPA”) is newly enacted legislation which has come into effect on the 1st of February 2022 and repeals the Estate Agency Affairs Act 112 of 1976. As a result, property practitioners which act on behalf of sellers, buyers, tenants or landlords during the sale or lease of property receive more support through this Act. The Act is also aimed at regulating how the property practitioners handle their affairs by making significant changes to how they are to conduct their business. An example of a significant change and an important provision of the Act is the one relating to mandatory disclosures.

Mandatory Disclosure in terms of the PPA? 

The PPA is legislation that is consumer-focused and is intended to provide protection to consumers within the property industry. One of the ways in which the Act is designed to achieve this is through the provision of mandatory disclosures.

The PPA stipulates that property practitioners, unless provided with the prescribed mandatory disclosure form fully completed and signed by a landlord or seller, must not accept a mandate. Additionally, a copy of this form must be provided to the prospective tenant or purchaser.

The mandatory disclosure form needs to be signed by all the relevant stakeholders and attached to the agreement, whether it is for the sale or lease of a property. The form becomes an essential part of the agreement and provides additional protection for all the affected parties.

The mandatory disclosure form will contain all the defects of the property to the best knowledge of the seller or landlord. The form will not significantly affect the voetstoots clause; however, failure to complete the form will result in the defects being deemed as not disclosed and can leave a seller or landlord open to a claim being lodged against them relating to the defects.

Conclusion 

In conclusion, it is crucial to know how legislation should guide your decision making when searching for a property and how to avoid decisions that could result in financial loss or legal issues. Therefore, please consult with a legal professional before entering into any agreements relating to the sale or lease of a property to ensure it complies with the law and protects yourself and others.

Contact an attorney at SchoemanLaw at www.schoemanlaw.co.za for your legal needs!

SchoemanLaw Inc

SchoemanLaw Inc Attorneys, Conveyancers and Notaries Public is a boutique law firm offering its clients access to high quality online legal documents and agreements, together with a wide range of legal services. The firm has an innovative and entrepreneurial mindset that distinguishes it from other law firms. We apply our first-hand understanding of the challenges facing entrepreneurs (regardless of their business size) to develop proven, practical solutions incorporating legal compliance, risk aversion and business sense. We achieve this by offering clients tailored, yet holistic support comprising of legal gap analysis, the design of tailored legal solutions and the practical implementation thereof through training and automation. With your personal interests in mind, our ultimate aim is to implement measures that protect the results of your hard work as effectively as possible.