The Act provides for certain instances where the liability of the fund to compensate is excluded. These instances are as follows:
Section 18(3): No person shall have a claim against the board for compensation from the fund unless:
The claimant has, within three months after having become aware of the theft of the trust money by an estate agent or the failure of the estate agent to pay the money into a trust account or should , by the exercise of reasonable care, have become aware of the theft or failure , given written notice of the claim to the Board; and
The claimant has, within six months after a written demand was sent to him/her by the Board, furnished to the Board whatever proof the Board may reasonably require to substantiate the claim.
The Board may, in its discretion, having regard to all relevant circumstances, condone non-compliance or extend the periods concerned.
Section 19(1): No person may, without the permission of the Board, commence any legal action against the Board for compensation from the fund unless and until the claimant has all relevant rights of action or other legal remedies available against the estate agent in respect of whom the claim arose and all other persons liable for the loss suffered by the claimant
Including, for example, an estate agent‘s employee as well as other persons not connected with the estate agent , such as an outsider who stole the claimant’s money before it was paid into the estate agent’s trust account.
Where a claimant has received full compensation for the loss from the estate agent or from other persons liable for the loss no further claim will lie against the fund.
The Board, in practice, requires the claimant to lay a criminal charge of theft against the offending estate agent but does not insist that the estate agent should be convicted before accepting liability of the fund to pay compensation. If the estate agent has been found guilty of the theft by a court this will constitute conclusive proof of the theft of the trust money. The circumstances of each individual case will, determine how far the criminal proceeding against an estate agent must proceed before the Board will accept liability for the payment of the claim.
Section 19(4): The following persons have no rights of action against the Board for compensation by the fund
The spouse of an estate agent by reason of any theft committed by such estate agent;
Any estate agent by reason of any theft committed by his/her partner or, if the estate agent is a company , by any director of the company or, if he/ she is a director of the company, by any co-director of the company or if the estate agent is a close corporation,by any member of the close corporation, or, if he/she is a member of a close corporation, by any co-member of the close corporation or by any person employed by him/her as estate agent.
Persons who suffer a loss as a result of acts by employees of an attorney who renders estate agency services since any claim in this respect will lie against the Attorney’s fidelity fund.
An estate agency business is not entitled to recover any loss from the fund if the business has been held liable to pay compensation to a member of the public because of the theft committed by an employee agent. Firms should, again, asses the risk and take out the necessary fidelity insurance policies to cover any such loss.
Section 20: The Board may, in any action against it in respect of the Fund, raise any defence which could have been raised by the person against whom the claim arose.If for example a claim against an estate agent has prescribed the Board, upon being sued, could raised the defence of prescription. Other defences that could be raised would include set- off and the right to deduct commission due to an agent.