The role of the rental practitioner
Rental Property Law places the practitioner in a dynamic position.
A practitioner is an extension of their principal.
A practitioner can never represent both landlord and tenant in this transaction. As such, your duty lies with your landlord, so place a qualified tenant!
The relationship between landlord and practitioner is governed by:
- Case law.
- Legislation.
- Contract.
Case law
NB – only cases decided by the SCA and Constitutional Court create law in South Africa.
Cases in the High Court of various provinces create law in those provinces and, at best, have persuasive influence in other provinces.
General themes through case law are:
- A practitioner holds a fiduciary position with their principal (Landlord).
- The practitioner must act solely for the benefit of their principal and must disclose any conflict of interest (Mallinson v Tanner 1947).
- The practitioner cannot make a secret profit out of the mandate (Jones v East Rand Gold Mining Co).
Legislation
The Property Practitioners Act (Code of Conduct)
Section 2 of the CODE OF CONDUCT.
A practitioner must:
- Not do or omit to do any act which is or may be contrary to the integrity of property practitioners.
- Protect the interest of the client (the Landlord) at all times to the best of their ability, with due regard to the interests of all other parties concerned.
- Not willfully or negligently fail to perform any work or duties with such degree of care and skill as might reasonably be expected of a property practitioner.
- Convey to a prospective tenant all facts concerning the property that are, or should be, reasonable in the circumstances, within their personal knowledge and which are, or could be, material to the prospective tenant.
- Avoid conflicts of interest and disclose any potential conflict of interest to the tenant.
Section 5 of the CODE OF CONDUCT.
A practitioner must not:
- Claim to be an expert or to have specialised knowledge in respect of any property agency service if, in fact, they are not such an expert or do not have such special knowledge.
- Willfully or negligently make false statements as to any fact or make any harmful or misleading statements or use such marketing techniques.
The Consumer Protection Act
Section 40 of the CPA (PRACTITIONER TO TENANT).
A practitioner (on behalf of their landlord) must not:
- Use physical force against a tenant, coercion, undue influence, pressure, duress or harassment, unfair tactics, or any other similar conduct, in connection with:
- Demand for, or collection of, rental payment; or the repossession of the property from the tenant.
- Directly or indirectly express or imply a false, misleading or deceptive representation concerning a material fact to a tenant.
- Use exaggeration, innuendo or ambiguity as to a material fact, or fail to disclose a material fact if that failure amounts to a deception; or
- Fail to correct an apparent misapprehension on the part of the tenant, amounting to a false, misleading or deceptive representation.
Examples include falsely stating (advertising) the property:
- Has characteristics, accessories, uses, benefits, or qualities, or is of a particular standard or quality.
- Has or is proximate to any facilities, amenities, or natural features that are not available or proximate.
Section 54 of the CPA (PRACTITIONER TO LANDLORD).
54(1) When a supplier (rental practitioner) undertakes to perform any services for or on behalf of a consumer (Landlord), the consumer has a right to:
- The timely performance and completion of those services, and timely notice of any unavoidable delay in the performance of the services.
- The performance of the service in a manner and quality that persons are generally entitled to expect.
- The use, delivery or installation of goods that are free of defects and of a quality that persons are generally entitled to expect if any such goods are required for the performance of the services; and
- The return of any property or control over any property of the consumer is at least as good a condition as it was when the consumer made it available to the supplier for the purpose of performing such services, having regard to the circumstances of the supply, and any specific criteria or conditions agreed between the supplier and the consumer before or during the performance of the services (NOTE: this could also include restoring after an outgoing inspection!).
- If a supplier fails to perform a service to the standards contemplated in subsection (1), the consumer may require the supplier to either:
- Remedy any defects in the quality of the services performed or goods supplied; or
- Refund to the consumer a reasonable portion of the price paid for the services performed and goods supplied, having regard to the extent of the failure.