The duties of the estate agent in the sale of residential property and the influence of the Consumer Protection Act 68 of 2008

Abstract

The main purpose of this dissertation is to critically analyse the duties of an estate agent in the sale of residential property under the Consumer Protection Act 68 of 2008 (CPA). To present a comprehensive analysis of the research, one has to look further than the CPA, to also include the consumer protection measures which existed prior to the CPA in terms of the Estate Agency Affairs Act 112 of 1976 (EAAA) and the common law, as it is clear that the CPA aims to include the rights of consumers as provided for in industry-specific legislation (section 2(9) of the CPA) and the common law (section 2(10) of the CPA) within the ambit of the CPA. A structured modus operandi includes an analysis of the provisions of section 5 of the CPA which clarifies the circumstances under which the CPA will apply, an investigative summary of the statutory duties imposed on the estate agent under the EAAA, an analysis of the common law duties imposed on the estate agent, a critical analysis of the duties imposed on an estate agent under section 19 and section 54 of the CPA and a conclusion of the research to critically answer the question: What are the duties of the estate agent in the sale of residential property under the CPA? The research clearly illustrates that the intervention of the CPA brought about an important amendment of the common law, with the provisions of section 19(2)(a) and section 54(1) of the CPA importing terms to the agreement between the seller and the estate agent for the sale of the seller’s residential property that impose duties on the estate agent in the sale of residential property, which are not otherwise provided for under common law. In order to present a logical conclusion and recommendations, the problematic application of the seller’s remedies under section 19(6) and section 54(2) of the CPA are disseminated in the research. A critical discussion on this aspect, supports and emphasises the importance of developing the common law as provided for under section 4(2)(a) of the CPA, to include terms to the specific type of agreement between the seller and the estate agent for the sale of the seller’s residential property, which impose duties on the estate agent as provided for in the CPA. Not only will this bring certainty in respect of the duties imposed on the estate agent in the sale of residential property, but will ultimately also guarantee the seller’s common law rights, to cancel the agreement with the estate agent and to institute a claim for damages suffered as a result of the estate agent who sells the seller’s residential property in breach of the duties imposed on the estate agent under the CPA, which are preserved under section 2(10) of the CPA. It is also important to acknowledge that the Property Practitioners Act 22 of 2019 (PPA), which was signed into law by the President of the Republic of South Africa on 2 October 2019 replaces the EAAA. Although a comprehensive analysis of the duties imposed on the property practitioner under the PPA falls outside the scope of this research, mention must be made of the implications of including statutory regulation of property practitioners from a consumer protection perspective, outside the scope of the CPA.