PUBLISHED 20 SEP 2018
Sellers have the following options when conferring a mandate upon an an Estate Agent to market the property on the sellers' behalf:
1. Open Mandate
The seller appoints as many estate agents as he wishes and may also market his property privately.
2. Multi Listing System
A number of agencies work together as part of the Multi Listing System, to market a property. Not all agencies are members of MLS. Commission is split between the MLS Listing Agent and MLS Selling Agent. When an MLS mandate is signed, the seller may not market or sell his property privately and agencies that are not members of MLS may not accept a mandate to market such property during the MLS mandate period.
3. Sole and Exclusive Mandates
Sole and Exclusive Mandates confer upon an estate agent the sole and/or exclusive right to market a property on behalf of the seller. The sole and exclusive mandate must be in writing and should contain the timeframe during which the mandate will be valid. The obligations assumed by the estate agent in terms of the mandate, must be clearly stated in writing.
The seller may retain his right to sell the property privately, in which case, a Sole Mandate will be signed. Should the Seller choose not to market his property privately, he may enter into an Exclusive Mandate with the estate agent, conferring on that estate agent the sole and exclusive right to market the property for sale.
Termination of a mandate
The mandate terminates when any of the following occurs:
1. Upon the successful negotiation of a binding sale agreement.
2. Upon expiration of the agreed fixed term of the mandate.
3. If the mandate is revoked, i.e. for failure of performing the agreed upon estate agency service satisfactorily or if the owner decides not to sell the property.
4. If the estate agent renounces the mandate, e.g. if she is unable to fulfill the demands of the mandate or decides not to proceed with the mandate.
It is unethical for estate agents to market a property without a mandate to do so, from the registered owner of that property. A mandate or instruction to market a property, can be given by way of a request, an order or granting of permission to market a property.
Mandates need not be in writing, unless the seller confers upon an Estate Agent a Sole and/or Exclusive Mandate to market the property. It is however, sound business practice to conclude all mandates in writing. The estate agent must without undue delay, provide a copy of the signed mandate to the seller. A mandate is a legally binding agreement. It is therefore important that the terms of the mandate must be clear. The estate agent must, prior to signing of the mandate by the seller, explain the meaning and consequences of the material provisions of the mandate to his/her client.