Tag Archives: selling

The risk of EFT fraud when selling a car

B1Electronic Funds Transfers, better known as EFTs, have become a popular payment method in South Africa, accepted by many in lieu of cash or cheque payments. This allows buyers to reverse payments and essentially fraud sellers into thinking that they’ve been paid.

Many accept the printed EFT document as “proof” of a cash payment into the bank account, especially in the selling and buying of motor vehicles. They insist on the transfer to be made immediately there and then, after which the vehicle is transferred and registered to the buyer on the same day.

How do EFTs get abused?

The abuse of EFTs made to the seller’s bank account, especially between different financial entities, is yet another devious manner in which the original Natis documentation or registration of ownership of a motor vehicle can be obtained with no intention to honour the actual payment.

EFTs are governed by agreements between the various financial entities. Depending on the agreement, an EFT transaction can take up to two days to actually reflect as a deposit on the statement of the seller. The risk of accepting proof of an EFT as “proof” of actual payment as if it was a cash deposit, puts the seller at a real risk of being defrauded.

Most ordinary citizens do not know that an EFT can be reversed within a few hours after it has been made, depending on the individual financial institute at which the account is held. Devious fraudsters who are know the mechanics of the law and the financial systems in South Africa, use this knowledge to the detriment of others.

How to make payments more secure

In the sale of a motor vehicle, or any other object of which ownership is registered on the eNatis system, the Natis registration document is a very useful instrument to secure and verify payment prior to the transfer of registered ownership.

The easiest safeguard against any risk of loss because of non-payment, is the current, valid and original Natis document, reflecting the registered owner and titleholder of a vehicle.

For as long as the seller of the vehicle retains the possession of the original Natis document reflecting the seller as the registered owner, no fraudster or any other person can obtain registered ownership of the vehicle, unless the seller physically enables them to do so. Once payment actually reflects on the bank statement the necessary documentation should be handed over to effect transfer of registration to the purchaser or his nominee.

Should a seller hand the original Natis registration documents over prior to actual confirmation of payment, the vehicle can be traded and registered to any innocent third party, while the seller still waits for payment.

As no party to an agreement can transfer more rights than they are legally entitled to at that time, the seller will be able to claim the motor vehicle from any person who has such motor vehicle in his/her possession, even if the possessor at that stage has “purchased and paid” the vehicle.  As long as the motor vehicle has not been transferred and registered to a purchaser who has not paid for same, the seller can safeguard themselves in such a fraudulent transaction.

What happens if I’ve been defrauded?

In the event of the payment not coming through, your rights as seller can be enforced by means of a very simple but highly effective application to a court, which can be done with an interim relief order to return the vehicle by the Sheriff of the Court to the registered owner of the car at a date on which service is to be effected on the purchaser. After that, the normal motion procedure is followed. It is also recommended to issue a summons for the cancellation of the agreement, return of the vehicle, cost and interest simultaneously.

For as long as the seller retains and holds on to the original Natis documents on which he/she is reflected as the registered owner of the motor vehicle, the seller will have a definite right to be the entitled possessor of the motor vehicle.

A seller who has already caused registration of the vehicle to be transferred to the purchaser prior to having the payment secured, is left in a risky position. The seller has very little hope of success against such a buyer with the intention to defraud. A litigation process can be prolonged and costly with no guarantee of recovery of the loss.

For further reading, see Unitrans Automotive (Pty) Ltd vs Trustees of the Rally Motors Trust 2011 (4) SA 35, just one of the transactions during a shopping spree of fraudulent transactions using EFTs by a fraudulent purchaser, and other matters referred to in the judgement.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Estate agents commission

A3Selling a home is one of the biggest financial decisions a person can make and an estate agent, to whom commission will be payable, is usually involved in this process.

A problem that frequently occurs in practice and which is not easy to solve is whether an agent was in fact instrumental in bringing about the sale of the property.

It could happen that an agent introduces a prospective buyer, that negotiations for the sale do not succeed and that another agent succeeds in concluding the agreement. It is common practice for more than one agent to be instructed to find a purchaser. It could even happen that a seller is held responsible for paying commission to two agents.

An estate agent is not an agent in the strict sense of the word.  His “mandate” is normally to find a suitable purchaser for the seller’s property and not to sell on behalf of the seller. This is, however, not a contract in the usual sense where parties undertake reciprocal obligations. In fact, the agent is not obliged to perform his mandate. An estate agent will only be entitled to commission if he has a mandate from the seller; without the mandate he is not entitled to commission, even though he might have been the effective cause of the transaction.

An estate agent will be considered to be the effective cause of the transaction when:

  • he has introduced a willing and financially able buyer to the seller;
  • a binding contract has been concluded between the parties; and
  • the transaction takes place at the stipulated price or at a price acceptable to the seller.

When several estate agents are involved in introducing the buyer to the seller it might be difficult for the court to determine which agent was the effective cause. For instance, when estate agent A introduces the buyer to the seller but the buyer later purchases the property through estate agent B after B has persuaded the seller to drop the price. Or estate agent A may have a sole mandate, but estate agent B introduced a willing and able buyer. The seller could then be liable for both estate agents’ commission. A sole mandate usually stipulates that the agent is entitled to commission if the property is sold during the currency of the agreement, even if another agent introduced the buyer.

In another matter a prospective buyer was introduced and the house was inspected. The price was considered too high. A few months later the purchaser noticed that the house was still in the market. He then bought the property without intervention from the agent at a slightly lower price than the earlier rejected price. The estate agent was held to be entitled to his commission.

How much commission is an estate agent entitled to? The average commission ranges up to 7.5%, but there are no regulations as to how much commission an estate agent should be paid per sale. The commission should be discussed by the parties when negotiating the mandate.

Sole mandates that are given to estate agents are regulated by the Consumer Protection Act. The duration of the agreement may not exceed 24 months. The seller has the right to cancel the agreement by giving 20 business days’ notice in writing. If the mandate is not terminated by the seller on the expiry date it will automatically continue on a month-to-month basis.

Seller, be wary of these pitfalls when selling your property – they could be very costly.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.