The Consumer Protection Act and proper service
Both estate agents and conveyancers are suppliers of their services to the public in terms of the Consumer Protection Act. Consumers therefore have the right to proper service and the areas covered by the Act in this respect have been defined in it. John Gilchrist, director of Property Law Publications, explains further in this fourth and last article in his series on the Act.
Completing matters within specific time limits
There are no obligations in the Act to complete any service within a specific time but, once one has been inserted in an agreement drawn by an agent or conveyancer, this must be strictly complied with, otherwise the sale can be cancelled by the party affected (usually the buyer). This can be very unfortunate for the seller if the sale is delayed through circumstances beyond his control. No agent should ever state, in an offer to purchase, that the transfer will be given to the purchaser by a certain date. Some agencies have this clause in their printed contracts. If the conveyancer cannot transfer by this date through no fault of his own or either of the parties, the sale can still be cancelled.
Section 54 of the Act does, however, state that suppliers must perform their obligations in good time as consumers are entitled to ‘the timely performance and completion’ of the terms of any sale contract. They are also entitled to be notified of any cause of delay which must be given in writing to both parties.
Important provisions regarding sale contracts
Section 22 of the Act states that documents should be compiled in plain language so that consumers will not be misled or confused by terms they are not familiar with or complicated words that they cannot be expected to understand. Many contracts still being used today in the industry do need to be simplified so that buyers at the lower end of the market can fully understand what their rights and obligations are.
Many Latin expressions are still freely used in sale contracts used by both estate agents and conveyancers. It is not necessary to remove these (many of them express very emphatically what can often only be described in a full sentence in English), but the meaning of Latin or other language terms should be explained in brackets. For example, the Dutch expression voetstoots should be followed by an explanation like this: (as it stands with the seller being freed from responsibility for latent or patent defects). Likewise the expression domicilium citandi et executandi should be explained as follows: (the address for services of any documents, notices or legal processes).
Other Service Requirements in terms of the Act
Any agent or conveyancer calling on a client at his place of residence or business address must be prepared to provide proof of identification. The Act does not specify what the form of identification should be, but it will obviously include an identity document or driver’s licence. Even a normal business card should be sufficient. This requirement only needs to be fulfilled if the client expressly requests proof if identification which very rarely occurs, but it is wise for agents especially to carry some form of identification around with them.
It is also common practice for conveyancers and estate agents to explain the terms of any mandate, lease or sale agreement (or other written contract) to both parties, but it should be noted that this is a specific requirement in terms of the Act. They are also obliged to keep written records of all verbal transactions reached through their services and must be prepared to supply these written details to anyone with an interest in them who requests them. Estate agents often negotiate small ancillary agreements with parties to a transaction, such as agreeing verbally on an occupation date. Where these are not recorded in a written addendum, agents must nevertheless record the terms of the agreement and the obligations of each respective party.
This is the last article by John Gilchrist in a series of four on the Consumer Protection Act. In case you missed it, the others are: ‘Who are suppliers under the CPA?’, ‘Disclosure certificates and voetstoots clauses’ and ‘CPA: Direct marketing and allied issues‘.
If you have any questions for John Gilchrist, you are welcome to email firstname.lastname@example.org.
IMAGE SOURCE: capechamber.co.za