- What is a mandate?
An estate agent is said to have a mandate when he accepts an instruction or authority from a client to render a particular estate agency service for a client. On acceptance of the mandate, a legally binding contract is established between the estate agent and his client.
Essentially a mandate is an exclusive contract between a seller and an estate agent that allows the agent to market a specific property and to find the right buyer for the house at the highest price in the shortest amount of time. This agreement gives the agent the right to deal with all of the legalities that are involved in the sale of the property.
- How is a mandate given?
Generally, a mandate need not be in writing but can be verbal. The following two mandates must, however, be in writing:
- A sole mandate including a sole and exclusive mandate.
- A mandate, which embodies the power of attorney to include certain transactions on behalf of the client.
These written mandates must contain a description of the property, a description of the mandate period, state that it is a sole and /or exclusive mandate, and be signed by the owner or owners.
It is nevertheless always sound business practice to record all mandates in writing as this avoids disputes about the existing terms.
A seller is entitled to appoint as many estate agents as he wishes unless he has given a sole mandate to a specific estate agent.
- Validity of a mandate
A mandate stays in effect until it is withdrawn or until the expiry of a stipulated period.
A sole and/or exclusive mandate can be withdrawn at any stage unless it states clearly that it is irrevocable. A sole and/or exclusive mandate also only stays valid for the duration of the mandate period. When the mandate period lapses, so do the sole and/or exclusive mandate
For any mandate to be valid, whether an open, sole or exclusive mandate, there is a requirement that the mandate grantor must have intended to give that mandate.
- Legalities and wording
- Must contain a description of the property.
- State that it is a sole and/or exclusive mandate.
- In writing (clause 3.3.1 of the Code of Conduct).
- Expiry date as a calendar date (clause 3.3.2).
- Legal implications of the sale of property during the currency of mandate (and sometimes thereafter) by the seller or third party to the exclusion of the agent (clause 3.10.1) Font cannot be smaller than the balance of terms.
- Marketing obligations assumed by the agent in the performance of the mandate (clause 3.10.2). Font cannot be smaller than the balance of terms. The suggested wording is:
- The seller must confirm that he/she is the sole owner of the property and if he/she signs in a representative capacity he/she warrants that he/she is duly authorised to do so.
- The clause dealing with the effects of removing the property from the market during the mandate period.
- Recommended that incorporate listing of defects in the property to be filled in and signed by the seller.