AGENTS, THEIR FIDELITY FUND CERTIFICATES AND THEIR IMPORTANCE IN THE CONVEYANCING PROCESS
Property transfers are a crucial component in the Economic sector of every country. And, in as much as this is true, it is also a very personal process for the buyers and sellers. Sellers could be selling a home that has been a safe haven for their family; one which holds many memories and sentiment. Buyers could be buying their first home, one which they wish to enrich with just as much memories. So, conveyancing is more than just an economic process, it is in most instances a very personal transaction as well.
This is why choosing the right Estate Agent and Conveyancer comes in. The property transfer process is smooth sailing when the agent, seller, buyer and conveyancer has a clear and open communication between each other.
An Estate Agent acts as the middle-man of the transaction, acting in the best interest of both parties. The Estate Agents Act 112 of 1976 defines an Estate Agent as “any person who for the acquisition of gain on his own account or in partnership, in any manner holds himself out as a person who, or directly or indirectly advertises that he, on the instructions of or on behalf of any other person;
- sells or purchases immovable property or any interest in immovable property or any business undertaking or negotiates in connection therewith or canvasses or undertakes or offers to canvass a seller or purchaser therefor; or
- lets or hires immovable property or any interest in immovable property or any business undertaking or negotiates in connection therewith or canvasses or undertakes or offers to canvass a lessee or lessor therefor; or
- collects or receives any moneys payable on account of a lease of immovable property or any business undertaking.
An Estate Agent is burdened with various common law duties- stemming from the duty to act in good faith. The agent has the following residual obligations in our law of agency. These are to carry out the mandate, exercise care and diligence, impart information, to advise, to act in good faith, and lastly to account to his or her client- as well as the conveyancer.
In Namibia, the Estate Agents Act 112 of 1976, regulates Estates Agents and makes provision for the Estate Agents Board; with the main object of maintaining and promoting the integrity of estate agents.
It is important to note that an Estate Agent has to apply for a fidelity fund certificate- this certificate must be approved by the Estate Agents boar, it is renewed every year and may be revoked under certain instances as set out be the Act. As conveyancers, it is important to have the certificate on file, as agents commission can only be paid out to an Estate Agent who has a VALID fidelity fund certificate. Section 26 of the Act stipulates that no person, without a valid fidelity fund certificate may act as an estate agent.
Thus, when buying and selling a property, make sure that the Estate Agent is clear as to what their mandate are, that there are clear communication and that they have a fidelity fund certificate; otherwise there has been misrepresentation regarding the fact that they portray themselves as an Estate Agent.