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Is it legal to exclude my agent from operating in my estate?

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Q

Hi, I tasked an agent with finding me a suitable home to buy in a security estate in Pretoria. The agent did her job by finding me the perfect home, but we hit a snag when I wanted to use her to sell my current home in a different estate.

Apparently, she and her agency are not allowed to operate in my estate as she doesn’t have accreditation here. I could go with a different agent but I feel more comfortable using her to sell my home.

My question is: Is it even legal to prohibit an agent from marketing and selling in a certain estate because there is no accreditation agreement in place? – Sinhle

A

Hi Sinhle, we are often asked whether accreditation agreements as prescribed by estate managers are valid and enforceable. Our answer is that until the courts decide on the matter it will be difficult to prove otherwise.

Soon we will have more clarity on the matter as on 20 July, an urgent application for an interdict against the Val de Vie Homeowners’ Association was filed by Harcourts Wineland in the Western Cape High Court. The legal dispute between the agency and the management of the luxury estate just outside Paarl turns on an accreditation agreement between the parties. The agency’s accreditation was cancelled in early July after one of the agents refused to share a portion of its commission with the homeowners’ association.

One of the issues that will come before the court is the legality of the accreditation that allows only certain agents to work in a security estate. The Estate Agency Affairs Board issued a notice in 2014 addressed to homeowners’ associations that prohibits this practice. The Estate Agency Affairs Act also makes it illegal for estate agents to share their commission with parties who are not in possession of a Fidelity Fund Certificate. Furthermore, the prescription to use only certain agents can be seen as an infringement of a seller’s right to choose his suppliers as set out in the Consumer Protection Act.


MC van der Berg, of MC van der Berg Incorporated.

MC van der Berg, of MC van der Berg Incorporated.

Answered by Tiaan van der Berg, founding director of M.C. van der Berg Incorporated, a legal practice specialising in property law. He is also the co-director of Mcademy Training Institute.

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david.steynberg@gmail.com

David A Steynberg, managing editor and director of HomeTimes, has more than 10 years of experience as both a journalist and editor, having headed up Business Day’s HomeFront supplement, SAPOA’s range of four printed titles, digimags Asset in Africa and the South African Planning Institute’s official title, Planning Africa, as well as B2B titles, Building Africa and Water, Sewage & Effluent magazines. He began his career at Farmer’s Weekly magazine before moving on to People Magazine where he was awarded two Excellence Awards for Best Real Life feature as well as Writer of the Year runner-up. He is also a past fellow of the International Women’s Media Foundation.

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