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Estate Agents

An ‘agent’ is someone who does something for someone else, and ‘real estate’ is immovable property. So, an ‘estate agent’ is someone who sells land, houses, flats, etc. on behalf of the owner. Because this is an important task, it is carefully controlled.

The Estate Agency Affairs Act 19761 regulates this profession. It falls under the authority of the Minister of Trade and Industry, but for all practical intents and purposes the administration of the Act is effected by the Estate Agency Affairs Board.2

The Act does not criminalise specific conduct, but makes it an offence to contravene any provision of the Act.3 The following summarises the more relevant provisions.

A. Estate agents

  1. Every estate agent (except one employed by an attorney) must apply to the Board for a Fidelity Fund certificate. It is an offence to act as an estate agent unless a valid Fidelity Fund Certificate has been issued to him.4

  2. It is also an offence if you employ someone as an estate agent who does not have a valid Fidelity Fund Certificate.5

  3. Any person in possession of a Fidelity Fund Certificate which has lapsed must immediately return the certificate to the Board,6 and commits an offence by failing to do so.7

  4. No person whose Fidelity Fund Certificate has been withdrawn, or has lapsed may, directly or indirectly, participate in the management of, or be employed by an estate agency – unless the Board gives written consent.8

  5. No estate agent may, directly or indirectly, employ such a person or allow him to participate in the management of an estate agency, unless the Board gives written consent.9

  6. Every estate agent shall keep accounting records necessary to reflect and explain:
    • all moneys received or expended by him;10
    • his assets and liabilities;11
    • all his financial transactions;12 and
    • the financial position of his business.13
  7. Such records must be audited by a public auditor within four months of the estate agent’s financial year end.14

  8. No estate agent may change his financial year end without prior written approval of the Board.15

B. Trust accounts

  1. Every estate agent shall keep one or more trust account with a bank.16

  2. The Board must be notified of the name of the Bank and the account number of each such trust account.17

  3. All trust money received by the estate agent shall be deposited into a trust account.18

  4. All interest on trust accounts must be paid to the Fidelity Fund unless the client on whose behalf the money is held expressly mandates otherwise.19

  5. Every estate agent shall:
    • keep separate accounting records of all trust money;20 and
    • balance his books and have them audited with four months of the financial year end.21
  6. When an inspector authorised by the Board conducts an inspection, it is an offence to:
    • fail to place at the inspector’s disposal anything he requires which relates to the inspection;22 or
    • hinder or obstruct the inspector.23
  7. It is an offence falsely to pretend to be an inspector of the Board.24

C. The Board

  1. The Board must keep accounting records necessary to reflect and explain:
    • all moneys received and expended by it;25
    • all its assets and liabilities;26
    • all its financial transactions;27
    • the financial position of its business.28
  2. The Board must have annual financial statements prepared not later than six months after the end of each financial year.29

  3. The records and financial statements must be audited by a public auditor appointed by the Board.30

  4. The Board must submit an annual report, with the audited financial statements, to the Minister.31

  5. The Board must control the Estate Agents Fidelity Fund and all moneys received for the Fund shall be paid into the Estate Agents Fidelity Fund Account.32
  1. As amended. The latest amendment was effected by Act 90 of 1998, which came into force on 1 January 1999. 

  2. The Board has its Head Office at 63 Weirda Road East, Sandton, Gauteng (tel: 087 285 3222). 

  3. Section 34 of the Act. 

  4. Section 26(1). 

  5. Section 26(1). 

  6. Section 28(6). 

  7. Section 34. 

  8. Section 28(7). 

  9. Section 28(8). 

  10. Section 29(1)(a)(1). 

  11. Section 29(1)(a)(ii). 

  12. Section 29(1)(a)(iii). 

  13. Section 29(1)(a)(iii). 

  14. Section 29(1)(b). 

  15. Section 29(1)(b). 

  16. Section 32(1). 

  17. Section 32(1). 

  18. Section 32(1). 

  19. Section 32(2)(c). 

  20. Section 32(3)(a). 

  21. Section 32(3)(b). 

  22. Section 32A(2)(a). 

  23. Section 32A(2)(b). 

  24. Section 32(a)(2)(c). 

  25. Section 10(2)(a)(i). 

  26. Section 10(2)(a)(ii). 

  27. Section 10(2)(a)(iii). 

  28. Section 10(2)(a)(iii). 

  29. Section 10(2)(b). 

  30. Section 10(3). 

  31. Section 11(1). 

  32. Section 12(2) and section 12(3).