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Real Estate Management Act, 2024

Act 28 of 2024

Real Estate Management Act, 2024
Citation
Act 28 of 2024
Date
8 November 2024
Language
English
Type
Act
Publication
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Malawi

Real Estate Management Act, 2024

Act 28 of 2024

An Act to provide for the regulation of practice of real estate agents, real estate developers and real estate transactions, to provide for the establishment of the Real Estate Agency Council, and to provide for matters incidental thereto or connected therewith.ENACTED by the Parliament of Malawi as follows—

Part I – Preliminary

1. Short title and commencement

This Act may be cited as the Real Estate Management Act, 2024 and shall come into operation on such date as the Minister may appoint by notice published in the Gazette.

2. Interpretation

In this Act unless the context otherwise requires—“Chief Executive Officer” means the Chief Executive officer of the Council appointed under section 15;“Commissioner” means the Commissioner for Estate Management appointed under section 5;“connected contract”, in relation to any land, means any one of two or more contracts which provides for disposition of the land or for building thereon or for matters ancillary to such disposition or building on terms, either expressed or implied, whereby the completion of any such contract is conditional upon completion of any other such contract;“Council” means the Real Estate Agency Council established under section 8;“development” means the carrying out of building, engineering, or other operations in, on, over or under any land, or the making of any material change in its use or in the use of any buildings or other land, for the purpose of disposal of such land or any part thereof in a development scheme;“development scheme” means a scheme, or intended scheme, for the development of land, the subdivision or proposed subdivision of which is subject to the Physical Planning Act;[Cap. 23:01]“estate” means an estate or interest in land, and includes the improvement on the estate or interest in land;“Financial Intelligence Authority” means the Financial Intelligence Authority established under the Financial Crimes Act;[Cap. 7:07]“land” has the meaning ascribed to it under the Land Act;[Cap. 57:01]“Malawi Revenue Authority” means the body established under the Malawi Revenue Authority Act;[Cap. 39:07]“net listing” means an agreement to sell or lease real estate for a stated price that authorizes a licensed real estate agent to keep money in excess of the stated price received from the sale or lease;“the practice of real estate business” has the meaning ascribed to that expression in section 3.“prepayment contract” means any contract under which at the time of entering into the contract, or any connected contract, there are to be performed by one party for the benefit of the other party, or for the benefit of a party to a connected contract, obligations, expressed or implied, with regard to—(a)the building of roads, or the carrying out of engineering or other operations in on, over or under any land the subject of the contract or any connected contract; or(b)the carrying out of any building operations, including, the construction or completion of any house, townhouse, or apartment in a condominium building, and of the structures or works for the use in connection therewith upon any such land, and under which moneys are payable by the party to benefit from the performance and discharge of such obligations prior to the performance and discharge thereof;“real estate agent” means a person who performs any act or engages in any transaction which results or is intended to result in the sale, exchange, purchase, renting or leasing of real estate or in a loan secured or to be secured by mortgage or other encumbrance on real estate, and includes a real estate auctioneer;"real estate developer" means a person who carries on, whether in whole or in part, the business of real property development;“real estate manager” means a person who oversees the maintenance, security, facility management, rental income, payment of fees and taxes of real property; and“real property” means land or interest in land including any lease issued under the Land Act or the Customary Land Act.[Cap. 39:07; Cap. 59:01]

3. Practice of real estate business

Subject to section 4, for the purpose of this Act, a person engages in the practice of real estate business if, on behalf of another person, for compensation or valuable consideration directly or indirectly paid or expressly or impliedly promised, or with intent to collect or receive compensation or valuable consideration therefore, the person—
(a)appraises, auctions, sells, exchanges, buys, leases or rents or offers, attempts or agrees to appraise, auction or negotiate the sale, exchange, purchase, lease or rental of, any land, or otherwise acts as a broker in relation to any land;
(b)advertises or holds out to the public by any oral, printed or online representation that the person is engaged in the business of appraising, auctioning, buying, selling, exchanging, leasing or renting, land;
(c)manages land or engages in any other business concerned with the management of land, either in a consultative capacity or as an agent;
(d)takes any part in procuring of sellers, purchasers, lessors, lessees, landlords or tenants of land; or
(e)directs or assists in procuring of prospects, or the negotiation or closing of any real estate transaction which results in a sale, exchange, lease, lease or rental of land of another or is calculated to have that result.

4. Exempted real estate transactions

This Act does not apply to a real estate transaction in which a person—
(a)acts personally, or an employee acts on behalf of the employer in the regular course of employment, to acquire, lease or rent real estate for the use or investment of that person or employer;
(b)acts as an attorney for another under a valid power of attorney for the purposes of negotiating or executing contracts, transfers or conveyance in respect of interest in real estate;
(c)being a person practising as a legal practitioner, furnishes to any person legal advice and services ancillary thereto, in connection with real estate business within the scope of the profession of such person as such, or within such narrower limits as may be prescribed by regulations under this Act;
(d)negotiates a loan secured or to be secured by a mortgage or other encumbrance on real estate for that person or employer;
(e)acts as a licensed auctioneer of movable property;
(f)buys, sells or otherwise deals in any stock, mortgage or any other security, or certificate of beneficial interest in any trust;
(g)as a public officer or an employee, performs the official duties of that public office or employee;
(h)as a receiver, a trustee in bankruptcy, executor, administrator, guardian or conservator is performing the function of that person;
(i)sells real estate under an order of a court;
(j)as a trustee, acts under a written instrument of trust, or deed or declaration of trust, or will, or a regular employee of a trustee, acts in the course of the employment; and
(k)as a financial institution licensed under the Financial Services Act, lawfully engages in business, or a regular employee of such financial institution acts in the course of the employment, or acting in the capacity of a fiduciary, is—
(i)acting for itself in negotiating a loan secured or to be secured by a mortgage, or other encumbrance on real estate;
(ii)acting for itself with reference to real estate owned, mortgaged, leased or rented, by or to it or which it seeks to acquire, lease or rent for its own use; or
(iii)a credit union that operates under any written law and undertakes the transaction or the regular employees of that credit union act in the course of the employment.
[Cap. 7:07]

Part II – Administration

5. Commissioner for Estate Management

(1)There shall be a Commissioner for Estate Management (in this Act otherwise referred to as the “Commissioner”) who shall be a public officer, and shall be responsible for advising the Minister on all matters in relation to real estate management and activities.
(2)A person shall not be qualified to be appointed Commissioner under this Act unless that person—
(a)holds a minimum of a Bachelors’ degree in real estate or land management from a university or institution recognized or accredited by the National Council for Higher Education, or an equivalent qualification;
(b)is registered and licensed under this Act; and
(c)has practiced for not less than ten years’ as a registered licensed real estate manager.

6. Powers and functions of the Commissioner

(1)Subject to special and general written direction of the Minister, the Commissioner shall be responsible for—
(a)advising the Minister on real estate management and real estate agency matters;
(b)the development of land in terms of the provision of basic infrastructure, including access roads, electricity, water, street lights and fibre cables;
(c)the issuance of ground rent invoices and maintenance of ground rent database;
(d)preparing and maintaining a record of Government buildings;
(e)calling for bi-annual returns, in the prescribed form, from registered and licensed real estate agents and real estate managers on their work;
(f)preparing and submitting to the Minister quarterly reports on real estate activities;
(g)managing complaints arising out of real estate transactions; and
(h)performing any other functions as may be assigned by the Minister.
(2)In performing functions under subsection (1) the Commissioner shall have power to—
(a)appoint, recommend or approve authorized Government real estate managers for assignments as may be required;
(b)recommend to the Council disciplinary measures to be taken against any Government estate manager; and
(c)impose fees for accessing information from the data bank.
(3)The Commissioner shall perform functions and exercise powers under this Act in a manner which—
(a)promotes transparency and public confidence in real estate practice;
(b)does not allow any other interest to compromise or in any other way jeopardise the integrity of the real estate practice; and
(c)manifests fairness and impartiality without due regard to one’s social or economic status.

7. Appointment of Government real estate managers and authorized real estate managers

(1)There shall be such number of Government real estate managers appointed in the public service, who shall be subordinate to and assist the Commissioner in the performance of the functions of the Commissioner under this Act as shall be determined by the Minister.
(2)Government real estate managers shall undertake estate management of Government property in Government departments or entities as may be required from time to time.
(3)Government real estate managers shall undertake estate management under the supervision of the Commissioner.
(4)The Commissioner may appoint any registered and licensed real estate manager to be an authorized real estate manager to undertake real estate management functions, as may be directed by the Commissioner.
(5)A person shall not be qualified to be appointed a Government real estate manager under subsection (1), or an authorized real estate manager under subsection (4) unless that person—
(a)holds a minimum of a Bachelors’ degree in real estate or land management from a recognized institution or equivalent qualification; and
(b)is registered and licensed under this Act.
(6)The names of all Government real estate managers and authorized real estate managers appointed pursuant to this section shall be published in the Gazette.

Part III – Real Estate Management Council

8. Establishment of the Real Estate Management Council

(1)There is hereby established the Real Estate Management Council (in this Act otherwise referred to as the “Council”).
(2)The Council shall be a body corporate with perpetual succession, and a common seal, and shall be capable, by that name, of—
(a)doing and performing all acts as may be necessary or expedient for the furtherance of the provisions of this Act; and
(b)subject to this Act, doing and performing all such acts as a body corporate may, by law, do or perform, or such as are incidental or appertain to a body corporate.

9. Powers and functions of the Council

(1)The Council shall be responsible for promoting and facilitating the development and regulation of real estate agency practice, and the provision of real estate agency services in Malawi.
(2)Without derogation from the generality of subsection (1), the Council shall—
(a)regulate the practice of real estate business and real estate developers in Malawi;
(b)prescribe or approve courses of study for real estate business;
(c)conduct and set standards for qualifying examinations for registration as real estate agents;
(d)register and license real estate agents and real estate managers;
(e)register real estate developers;
(f)provide forms for real estate transactions;
(g)issue real estate transaction certificates;
(h)maintain and publish a register of real estate agents, real estate managers and real estate developers;
(i)set performance standards for real estate agency business and management practice;
(j)facilitate and promote education which is necessary for the development and growth of real estate agency business and management practice;
(k)establish programmes of continuing education for real estate agents and real estate managers;
(l)monitor and evaluate compliance with this Act and in furtherance of that, conduct inspections;
(m)establish and enforce a code of conduct and ethics for real estate agency business and management practice;
(n)monitor the performance of real estate agents and real estate managers;
(o)monitor real estate advertisements in the print and electronic media, including the world-wide web, to ensure compliance with this Act;
(p)maintain a national database of real estate transactions;
(q)prescribe the scale of fees for real estate transactions;
(r)establish structures and mechanisms for—
(i)resolving disputes between real estate agents or real estate developers and their clients;
(ii)settling complaints made against real estate agents or real estate developers by their clients; and
(iii)the discipline of real estate agents or real estate developers who violate the established standards or who breach the code of conduct and ethics;
(s)assisting relevant authorities in the enforcement of compliance with regulatory requirements on anti-money laundering and countering the financing of terrorism in the real estate agency business and real estate management practice; and
(t)performing any other function connected with the objects of the Council.
(3)The Council shall perform its functions and exercise its powers provided in this Act independent of the direction, influence or interference of any person, entity or authority.

10. Composition of the Council

(1)The Council shall consist of—
(a)five members representing real estate agents, real estate developers, and persons with knowledge and experience in real estate transactions, appointed by the Minister;
(b)a representative of Local Government Associations, appointed by the Minister; and
(c)the following ex-officio members—
(i)the Principal Secretary responsible for land matters or his or her designated representative;
(ii)the Director General of the Financial Intelligence Authority, or his or her designated representative; and
(iii)the Chief Executive of the National Construction Industry Council, or his or her designated representative.
(2)The Minister shall, in making appointments under subsection (1) (a)—
(a)take into account the provisions of the Gender Equality Act; and[Cap. 25:06]
(b)have regard to the need for continuity in the membership of the Council so that at least two members of the immediate past Council shall be retained.
(3)The Chairperson of the Council shall be appointed by the Minister from amongst the persons appointed under subsection 1 (a) and (b).
(4)The Vice-Chairperson of the Council shall be elected by members of the Council from among their number at the first meeting of the Council.

11. Tenure of office and vacancies

(1)A member of the Council, other than ex-officio member, shall hold office for a period of three years, and shall be eligible to be re-appointed for a further term of three years.
(2)A member of the Council, other than an ex officio member, may at any time resign from office in writing addressed to the Minister.
(3)A member of the Council, other than an ex-officio member, who is absent from three consecutive meetings without sufficient cause ceases to be a member of the Council.
(4)The Minister may by letter addressed to a member revoke the appointment of that member where the member is—
(a)unable for any reason to perform the functions of a member;
(b)adjudged to be of unsound mind;
(c)declared bankrupt;
(d)convicted of an offence, and sentenced without the option of a fine; or
(e)ceases to hold the qualifications for appointment as a member, or circumstances arise which would have disqualified the member to be appointed a member of the Council.
(5)Where a member of the Council is, for a sufficient reason, unable to act as a member, the Minister shall determine whether the inability would result in the declaration of a vacancy.
(6)Where a vacancy occurs in accordance with subsection (2), (3), (4) or (5), or by reason of the death of a member, the Minister shall appoint a person to fill the vacancy.
(7)The Council may, in its discretion, at any time and for any period, co-opt any person with specific knowledge, information or expertise, to attend any meeting of the Council or a committee of the Council, and to address the Council or a committee of the Council on any matter, but such person shall not be eligible to vote at the meeting on a decision of the Council or a committee, as the case may be.
(8)Section 19 shall apply, with necessary modifications, to a person attending a meeting of the Council or committee of the Council pursuant to subsection (7).

12. Meetings of the Council

(1)The Council shall meet at least once every three months for the dispatch of business at a time and place determined by the Chairperson.
(2)The Chairperson shall, at the request in writing of not less than one-third of the membership of the Council, convene an extra­ordinary meeting of the Council at a time and place determined by the chairperson.
(3)The quorum at a meeting of the Council is five members.
(4)The Chairperson shall preside at meetings of the Council, and in the absence of the Chairperson, the Vice-Chairperson shall preside, and, in the absence of both the Chairperson and Vice-Chairperson, a member of the Council elected by the members present from among their number shall preside.
(5)A decision of the Council on any question shall be by a majority of the members present and voting, and in the event of an equality of votes, the person presiding shall have a casting vote.
(6)The Chief Executive Officer shall be the secretary of the Council and shall record and keep minutes of meetings of the Council, and the minutes shall be confirmed at the subsequent meeting of the Council.

13. Commitees of the Council

(1)The Council may establish such number of committees as the Council determines necessary for the performance of its functions under this Act.
(2)A committee may consist of, either members of the Council only, or members of the Council, and such other suitably qualified persons as the Council may determine.
(3)The Council shall appoint a chairperson of each committee from among members of the Council appointed under section 10 (1) (a) and (5).
(4)Every committee shall act in accordance with any directions given in writing to the Committee by the Council.
(5)The Chief Executive Officer, shall act as secretary of committees of the Council, or may, with the approval of the Chairperson, delegate senior members of staff of the Council to act as secretaries to committees.

14. Allowances and expenses

(1)Members of the Council and members of a committee of the Council shall be paid such allowances as the Minister may determine, after consultation with the Minister responsible for finance.
(2)The Council may reimburse any reasonable expenses incurred by a member of the Council, a member of a committee of the Council or a person invited to attend a meeting pursuant to section 11 (7).

15. Appointment of Chief Executive Officer

(1)The Council shall appoint a Chief Executive Officer for the Council who shall be the chief executive officer of the Council, and shall, subject to the general direction of the Council, be responsible for the day-to-day operations of the Council.
(2)The Chief Execute Officer shall be appointed through a competitive process, and on such terms and conditions as the Council may determine.
(3)A person shall not be appointed as Chief Executive Officer unless the person—
(a)possesses a minimum qualification of a Master’s degree in a relevant field obtained from a reputable university or institution recognized or accredited by the National Council for Higher Education;
(b)has proven and demonstrable expertise in the management and regulation of real estate, or any field relevant to the functions of the Council;
(c)has not less than ten years’ experience in real estate transactions;
(d)has not less than ten years’ experience in executive management; and
(e)is registered and licensed to practice under this Act.
(4)The Chief Executive Officer may delegate a function to an officer of the Council, but shall not be relieved of the ultimate responsibility for the performance of the delegated function.

16. Removal of Chief Executive Officer

(1)The Council may terminate the appointment of the Chief Executive Officer on the following grounds—
(a)incompetence in the execution of functions of the office;
(b)incapacity to perform functions of the office by reason of physical or mental infirmity;
(c)failure to declare a conflict of interest relating to any matter under consideration by the office or the Council;
(d)being found guilty of misconduct punishable by dismissal under the contract of employment;
(e)being convicted of an offence and sentenced to a term of imprisonment; and
(f)being declared or adjudged bankrupt by a competent court of law.
(2)The Council shall not terminate the appointment of the Chief Executive Officer, unless the Chief Executive Officer is given an opportunity to be heard.

17. Appointment of other staff

(1)The Council shall employ such other members of staff, and may engage the services of such short-term advisors, subordinate to the Chief Executive Officer, as may be required or may be necessary for the proper and efficient discharge of the functions of the Council.
(2)The Council may delegate to the Chief Executive Officer the appointment, discipline and dismissal of members of staff in specified junior ranks, and the Chief Executive Officer shall report to the Council, at its next sitting, every appointment, disciplinary decision or dismissal made pursuant to this subsection.
(3)The members of staff of the Council appointed under subsection (1) shall be appointed on such terms and conditions as the Council may determine.
(4)Section 19 shall apply, with necessary modifications, to the dismissal of members of staff employed under this section.

18. Oath of office

Every—
(a)member of the Council;
(b)member of a committee of the Council;
(c)member of staff of the Council; and
(d)person co-opted to attend a meeting of the Council pursuant section 11 (7),
shall upon assumption of office, or before attending a meeting of the Council, take an oath of secrecy in the form set out in the Schedule.

19. Disclosure of interest

(1)A member of the Council or a committee of the Council, or a person invited to attend a meeting of the Council or a committee of the Council pursuant to section 11 (7), or any member of staff of the Council, who has a direct or indirect interest in any matter before the Council or a committee of the Council, as the case may be, shall disclose the interest as soon as is practical before or soon after the commencement of the meeting, and shall not take part in any consideration or discussion of, or vote on, any question on such matter at that meeting or any subsequent meeting.
(2)A disclosure of interest under subsection (1) shall be recorded in the minutes of the meeting at which it was made.
(3)Where a person fails to disclose an interest in accordance with subsection (1) and the Council or committee of the Council makes a decision which benefits that person, a close relative, or professional or business partner, of that person, the decision shall to the extent that it benefits that person, the close relative, or professional or business partner, as the case may be, be null and void.
(4)Where a member contravenes subsection (1), the chairperson shall notify the Minister who shall revoke the appointment of the member.
(5)Without limiting any further cause of action that may be instituted against the member, the Council shall recover the benefit derived by a member who contravenes subsection (1) in addition to the revocation of the appointment of the member.
(6)For purposes of this section, “close relative"’ includes a spouse, child and any person related by blood or marriage to a person mentioned in subsection (1).

20. Protection from liability

No action or proceeding shall be brought personally against any member of the Council or committee of the Council, or a member of staff of the Council, in respect of any act or omission done in good faith in the course of carrying out the provisions of this Act.

21. Common seal

(1)Subject to this section, the common seal of the Council shall be kept by the Chief Executive Officer, and shall not be used except in the manner authorized.
(2)All deeds, instruments, contracts and other documents shall be considered duly executed by, or on behalf of, the Council—
(a)where they are required to be under seal, if sealed with the common seal and authenticated by the Chairperson, or other member nominated in that behalf by the Council, and the Chief Executive Officer, or any other officer authorized by the Council for that purpose; or
(b)where they are not required to be under seal, if executed in that behalf by a member authorized by the Council for that purpose.
(3)A deed, instrument, contract or any other document executed in accordance with subsection (2) shall, in law, bind the Council, its assignees and its successors, and may be varied or discharged in the same manner that it was executed.
(4)All courts and other persons acting in a judicial capacity shall take judicial notice of the common seal of the Council affixed to any document and shall presume, unless otherwise proven, that it was duly affixed.

22. Annual report

(1)The Council shall cause to be prepared and submitted to the Minister, within three months after the end of each financial year, an annual report on the general conduct of the affairs of the Council and the activities carried out during that financial year.
(2)The report submitted under subsection (1) shall be in the prescribed form, and there shall be appended to the report—
(a)an audited statement of the financial position of the Council;
(b)an audited statement of the income and expenditure of the Council; and
(c)such other information as the Minister responsible for finance may require, in accordance with the provisions of the Public Finance Management Act.[4 of 2022]
(3)The Minister shall, as soon as practical, but not later than six months after the end of the financial year, lay before the National Assembly a copy of the annual report.

Part IV – Funds and property of the Council

23. Funds and property of the Council

(1)The funds and property of the Council shall consist of—
(a)such sums as may, from time to time, be payable to the Council from moneys appropriated by Parliament;
(b)moneys from fees charged by the Council in the performance of functions of the Council under this Act;
(c)levies the Council may charge on real property transactions;
(d)subscriptions from real estate agents and real estate developers; and
(e)such sums of money or other property, real or personal, as may be acquired, purchased or received by or transferred to the Council, whether by way of donation, devise, bequest, purchase or otherwise.
(2)The funds and property of the Council shall be exclusively under the control of the Council, and shall be utilized solely for the purposes of this Act in accordance with the written directions of the Council, and for no other purpose.
(3)The Council shall, at all times, comply with the provisions of the Public Audit Act, the Public Finance Management Act, and the Public Procurement and Disposal of Assets Act.[Cap. 37:01; 4 of 2022; Cap. 37:03]

24. Accounting and audit

(1)The Council shall cause to be kept all proper books of account and records of accounts of income, expenditure and assets of the Council in accordance with the provisions of the Public Finance Management Act.[4 of 2022]
(2)The accounts of the Council shall be audited at the end of each financial year in accordance with the Public Audit Act.[Cap. 37:01]
(3)The financial year of the Council shall be a period of twelve months in line with the financial year of the Government.
(4)The first financial year of the Council may be such shorter or longer period than twelve months as the Council may determine, but being not less than six months nor more than eighteen months.

Part V – Registration and licensing of real estate agency and real estate management practice, and registration of real estate development practice

25. Requirement for registration and licence to practice as a real estate agent or real estate manager

(1)No person shall engage in the practice of real estate agency business or real estate management, unless that person is registered and licensed under this Part.
(2)Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable—
(a)in case of an individual, to a fine of K5,000,000, and to imprisonment of two years; or
(b)in the case of body corporate, to a fine of K10,000,000.

26. Qualifications for registration as a real estate agent or real estate manager

(1)A person is eligible to register as a real estate agent under this Act if the person—
(a)holds a minimum qualification of a Diploma in real estate, or an equivalent qualification obtained from a university or institution recognized or accredited by the National Council for Higher Education; and
(b)has complied with such additional requirements, including the acquisition of practical experience in real estate agency business, as may be prescribed by the Council.
(2)A person shall be eligible to regisster a real estate manager under this Act if the person—
(a)holds a minimum qualification of a Bachelor’s degree in real estate, or an equivalent qualification obtained from a university or institution recognized or accredited by the National Council for Higher Education; and
(b)has complied with additional requirements, including the acquisition of practical experience in real estate management, as may be prescribed by the Council.
(3)A firm is eligible to register as a real estate agency firm, if the firm—
(a)is incorporated under the Companies Act or registered under the Business Registration Act; and[Cap. 46:03; Cap. 46:02]
(b)has at least one practitioner registered and licensed as real estate agent under this Act.
(4)A firm is eligible to register as a real estate management firm, if the firm—
(a)is incorporated under the Companies Act, or registered under the Business licencing Act; and
(b)has employed at least one practitioner registered and licensed as a real estate manager.
(5)Any person who qualifies to practice as a real estate agent or real estate manager, or to perform real estate services under this Act may make an application to the Council for registration.
(6)An application for registration shall—
(a)be in the prescribed form, accompanied with the prescribed fees;
(b)in the case of a company, society, association or partnership be accompanied with a declaration that officers of the company, society, association or partnership do not have any criminal record;
(c)where appropriate, be accompanied with the prescribed fee for examination; and
(d)be accompanied with evidence that the applicant is a citizen of Malawi or has permanent residence in Malawi.

27. Application for licence

(1)Any person who desires to practice as an estate agent, or a real estate manager, or a real estate agency firm, or a real estate management firm, or to perform estate agency services under this Act may make an application to the Council for grant of a licence.
(2)An application for a licence under subsection (1) shall—
(a)be in the prescribed form, accompanied with the prescribed fee;
(b)in the case of a company, society, association or partnership, be accompanied with a declaration that officers of the company, society, association or partnership do not have any criminal record; and
(c)be accompanied with evidence that the applicant is a citizen of Malawi or has permanent residence in Malawi.
(3)The Council may issue a licence to a person under this section, within ninety days after the receipt of an application, if the Council determines that the applicant—
(a)is a registered real estate agent or real estate manager under this Act;
(b)has—
(i)in the case of a real estate agent, a diploma; and
(ii)in the case of a real estate manager, a degree,
in valuation, real estate management, land economy, land management, land administration, property development and management from a university or institution recognized or accredited by the National Council for Higher Education in Malawi;
(c)has passed a qualifying examination conducted by the Council or an independent testing service designated by the Council;
(d)has not been convicted of an offence, and sentenced without the option of a fine;
(e)has a Tax Identification Number;
(f)has taken out a professional indemnity approved by the Council; and
(g)in the case of a company, society, association or partnership, has designated, as its representative for the purpose of obtaining the licence, an officer or partner who, as an individual, has a licence to practice as a real estate agent.
(4)A licence issued under subsection (3) shall—
(a)be in the prescribed form;
(b)bear the name and address of the licensee;
(c)in the case of a licence for a real estate agent issued to a company, society, association or partnership, bear the name of each designated officer or partner to whom, as an individual, a real estate agent’s licence has been issued;
(d)indicate the date of issue;
(e)subject to renewal, be valid for one year from the date of issue; and
(f)be subject to the terms and conditions determined by the Council.
(5)A person who is designated as an officer or a partner for the purpose of obtaining a real estate agent licence is entitled to perform the functions of a real estate agent or officer of the company, society, association or partnership to which that person is a designated officer or partner:Provided that a designated officer or partner shall not act as a real estate agent on that person’s own behalf for as long as that person remains a designated officer or partner of the company, society, association or partnership.
(6)A licence issued under this section shall not be transferrable.

28. Renewal of licence

(1)A licence granted under section 27 may be renewed after expiry by application to the Council.
(2)An application for a renewal of a licence under subsection (1) shall be—
(a)in the prescribed form, accompanied with the prescribed fee; and
(b)signed by the applicant;
(3)The Council may grant an application for a renewal of a licence under this section where the applicant—
(a)is not in breach of any of the terms and conditions of the licence or the code of conduct;
(b)satisfies the requirements for the grant of the licence;
(c)has a valid tax clearance certificate; and
(d)has paid the prescribed fee for the renewal of the licence.

29. Revocation and suspension of licence

(1)Except as otherwise provided in this Act, the Council shall revoke the real estate agent or real estate management licence of a company, society, association or partnership, if the company, society, association or partnership—
(a)ceases to have a registered and licensed real estate agent or real estate manager as the designated officer or partner of that company, society, association or partnership;
(b)is de-registered under the written law under which it was registered; or
(c)obtained the licence by fraud.
(2)Without limiting subsection (1), the Council may revoke the licence of a real estate agent or real estate manager, if—
(a)an agreement entered into by the real estate agent or real estate manager and the company, society, association or partnership in relation to the licence of the real estate agent or real estate manager ceases to be effective;
(b)the real estate agent or real estate manager is convicted by a court of competent jurisdiction of an offence, and sentenced without the option of a fine; or
(c)in the performance of a function authorized by the licence, the real estate agent or real estate manager—
(i)knowingly makes a fraudulent misrepresentation;
(ii)acts in the dual capacity of agent and undisclosed principal in the same transaction;
(iii)acts for more than one party in the same transaction without the knowledge and consent of the parties that the licensee represented in the transaction;
(iv)accepts, gives or charges an undisclosed commission, rebate or profit on expenditures from a principal;
(v)commingles the money or other property of a property owner with those of the licensee;
(vi)fails to disclose information on a property which is the subject matter of a transaction; or
(vii)accepts from a prospective seller a net listing.
(3)The Council may suspend the licence of a real estate agent or real estate manager, if the agent or manager, in the performance of a function authorized by the licence—
(a)fails to use the real estate forms required for that function, where the function is a real estate transaction;
(b)accepts cash in payment for the function, where the function is a real estate transaction;
(c)fails, within thirty days, to pay out money received into the client account, to the person entitled to that money;
(d)pays a commission or fees to, or shares a commission or fees with, a person who is not a registered and licensed real estate agent or manager; or
(e)fails to give a copy of the sale and purchase agreement to both the seller and purchaser of real property.
(4)The Council shall not suspend or revoke a licence, unless the Council—
(a)gives at least ten working days’ written notice to the person whose licence the Council intends to suspend or revoke, as the case may be;
(b)states in the notice mentioned in paragraph (a) the grounds of the suspension or revocation, as the case may be;
(c)serves on the affected licensee a copy of any complaint or charges which the Council proposes to consider; and
(d)gives the licensee affected, the opportunity to—
(i)appear personally for a hearing or be represented by a legal practitioner; and
(ii)examine and cross-examine witnesses and present documents and other evidence in support of the case of that affected licensee.

30. Requirement for registration as real estate developer

(1)No person shall engage in the practice of real estate development unless that person is registered under this Part.
(2)Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable—
(a)in case of an individual, to a fine of K5,000,000, and to imprisonment of two years; or
(b)in the case of body corporate or partnership, to a fine of K10,000,000.

31. Qualifications for registration as real estate developer

(1)A person is not eligible to register as a real estate developer unless the proposed development involves a development scheme in which—
(a)the number of lots into which the land is, or is intended to be, subdivided exceeds five;
(b)the number of strata lots comprising building units to be constructed exceeds five; or
(c)the person carrying out or proposing to carry out the building scheme is also carrying out or has carried out, within the preceding twenty-four months, another development scheme of whatever size.
(2)The Minister may prescribe rules for establishment of development schemes for real estate development.
(3)Without derogating from the generality of subsection (2), the Minister may make rules for—
(a)the nature and type of development schemes that may be established in accordance with any written law;
(b)the nature and form of prepayment contracts real estate developers may enter into with clients in respect of development schemes;
(c)advertisements of real estate development schemes;
(d)the requirements for trust accounts and the responsibilities of financial institutions in respect thereof;
(e)dealings with money in trust accounts; and
(f)such other matters as the Minister may deem necessary for the management of development schemes.

32. Registration for real estate developers

(1)Subject to section 31, a person who desires to carry out any real estate development shall, before commencing such development, apply to the Council, for registration as a real estate developer.
(2)An application under subsection (1) shall be in the prescribed form, and accompanied by the prescribed fee.
(3)The Council shall not register a person as a real estate developer unless the Council is satisfied that such person—
(a)has identified and acquired land for purposes of a development scheme as defined under section 31;
(b)has demonstrated financial capacity to carry out such development in such manner as the Council shall prescribe; and
(c)has not been convicted at any time of an offence, and sentenced without the option of a fine.
(4)Every real estate developer registered in accordance with this section shall, in every year, on or before the first day of April after the date of registration, pay to the Council a prescribed annual fee.

33. Suspension or cancellation of real estate developer registration

The Council may suspend or cancel the registration of a real estate developer where the Council is satisfied that—
(a)the registration was obtained by misrepresentation or fraud;
(b)[the real estate developer has contravened the Financial Crimes Act, or any written law relating to real estate; or[Cap. 7:07]
(c)circumstances have arisen which would have disqualified the real estate developer from registration under this Act.

34. Right of appeal against refusal to register or grant a licence

Where the Council refuses to grant an application for registration or a licence for a real estate agent or real estate manager, or registration for real estate developer, the Council shall notify the applicant in writing within ten days of its decision, giving reason for the decision, the Council shall inform the applicant of the right of appeal conferred by section 47.

35. Register of real estate agents, real estate managers and real estate developers

(1)The Council shall keep and maintain a register in which shall be recorded the personal and business details of registered and licensed real estate agents and real estate managers, and registered real estate developers.
(2)The register shall be open for inspection to the public during working hours, and a copy of, or an extract from, the register may be made by any interested person on the payment of the prescribed fee.
(3)The Council shall annually publish in the Gazette and a daily newspaper of nationwide circulation that the Council may determine, a list of registered and licensed real estate agents and real estate managers, and registered real estate developers who are in good standing.
(4)The Council shall establish and maintain a national database on real estate transactions which shall contain the transaction records of each licensed real estate agent.
(5)The Council shall keep the transaction records referred to in subsection (4) for a period of at least five years.
(6)The national database on real estate transactions referred to subsection (4) shall, on request made in writing to the Council, be made accessible to the Financial Intelligence Authority and the Malawi Revenue Authority.

36. Place of business of licensed real estate agents, real estate managers and real estate developers

(1)Every registered and licensed real estate agent and real estate manager, and every registered real estate developer, shall maintain a place of business in Malawi, and conspicuously display in that place of business—
(a)the registration and licence of the real estate agent or real estate manager, or registration certificate of real estate developer, or a certified true copy thereof, as the case may be; and
(b)in the case of a real estate agent or a real estate manager, the fees to be charged by the real estate agent or real estate manager, as the case may be.
(2)Every registered and licensed real estate agent or real estate manager, and every registered real estate developer shall give written notice of a change of business location to the Council before any change, and the Council shall effect the change in the register and in any subsequent publication of the list of real estate agents, real estate managers or real estate developers.
(3)The Council may suspend or cancel the registration and licence of any real estate agent or real estate manager, or suspend or cancel the registration of any real estate developer, that fails to comply with subsection (2).

37. Forms for real estate transactions

(1)All real estate transactions, including transactions otherwise exempted from the application of this Act, shall executed on prescribed real estate transaction forms issued by the Council.
(2)The application for a real estate transaction forms shall be made to the Council, and the Council shall, on the payment of the required fee—
(a)record the personal and business details of the applicant; and
(b)issue real estate transaction forms to the applicant.
(3)Any real estate transaction in which prescribed forms issued by the Council are not used is void.
(4)For the purpose of this section, real estate transaction forms include know your customer information forms, purchase agreement and sales agreement forms, and disclosure of defect or health hazard forms.

38. Sale and purchase agreements

Subject to any written law, a real estate agent, real estate manager, or real estate developer shall, in relation to each real estate transaction prepare as appropriate, a sales and purchase agreement or a lease agreement and give the seller and the buyer or the lessor and the lessee a copy each of the agreement.

39. Mode of payment for real estate transactions

(1)All payments for real estate transactions shall be by bank draft, cheque, bank transfer or electronic money transfer.
(2)No real estate agent, real estate manager or real estate developer shall accept cash in payment of any real estate transaction.
(3)Any person who contravenes this section commits an offence, and shall, on conviction, be liable—
(a)in case of an individual, to a fine of K5,000,000, and to imprisonment of two years; or
(b)in the case of body corporate, to a fine of K10,000,000.

40. Client accounts

(1)Every real estate agent, real estate manager and real estate developer shall separate their funds from those of the clients, and shall open and operate a separate clients’ or trust account into which moneys due in relation to real estate transactions shall be kept.
(2)Any person who contravenes this section commits an offence, and shall, on conviction, be liable—
(a)in case of an individual, to a fine of K5,000,000, and to imprisonment of two years; or
(b)in the case of body corporate, to a fine of K10,000,000.

41. Real estate transaction certificates

(1)A real estate transaction, including a transaction otherwise exempted from the application of this Act, shall not be complete until the parties to the transaction have been issued with a real estate transaction certificate by the Council.
(2)A person who engages in a real estate transaction shall apply for a real estate transaction certificate and accompany the application with the prescribed fee determined by the Council.
(3)The application under subsection (2) shall include—
(a)the personal details of the applicant;
(b)the particulars of the real estate transaction to which the real estate transaction certificate is intended to relate including—
(i)personal details of the parties to the transaction;
(ii)details of the property which is the subject of the transaction;
(iii)the nature of the transaction;
(iv)the valuation report, if any, on the property which is the subject of the transaction;
(v)the sums of money payable in the transaction;
(vi)details of the mode of payment used for payment of the transaction; and
(vii)details of receipts issued to cover payment of taxes payable for the transaction including receipts from the Malawi Revenue Authority; and
(c)copies of the purchase and sales agreement on the transaction.
(4)The Council shall issue the real estate transaction certificate to an applicant within thirty days after receipt of the application.
(5)Where the Council has reasonable grounds to believe that there has been any misrepresentation in respect of a real estate transaction or payments made in relation to the real estate transaction which is the subject of the application have been under­declared or far exceeds the value of the property, the Council may—
(a)conduct an investigation into the transaction;
(b)cause an independent valuation of the property to be made; or
(c)refer the transaction to the Financial Intelligence Authority and the Malawi Revenue Authority for investigation.
(6)Notwithstanding any provision in any written law, the Land Registrar shall not register any real property or interest in real property which has been the subject of real estate transaction, including a transaction otherwise exempted from the application of this Act under section 3 (1), if the application for registration is not accompanied with a real estate transaction certificate issued by the Council.
(7)Any registration of real property or interest in real property by the Land Registrar contrary to subsection (6) shall be void.

42. General rules of conduct

(1)A real estate agent, real estate manager or real estate developer shall not, in relation to real estate agency practice or a real estate transaction—
(a)make any misrepresentation for the purpose of obtaining a licence or registration, or in any report that the real estate agent, real estate manager or real estate developer submits to the Council;
(b)act in the dual capacity of real estate agent, real estate manager or real estate developer and an undisclosed principal in the same transaction;
(c)act for more than one party in the same transaction without the knowledge and consent of all the parties involved in the transaction;
(d)pay commission or fees to or share commission or fees with a person who is not a registered licensed real estate agent or real estate manager or registered real estate developer, as the case may be;
(e)accept, give or charge any undisclosed commission, rebate or profit on expenditures for a principal;
(f)commingle the money or property of a client or principal with the money or property of the real estate agent, real estate manager or real estate developer;
(g)fail to give the seller and the buyer a copy of the sales and purchase agreement; or
(h)accept from a prospective seller a net listing.
(2)A real estate agent, real estate manager or real estate developer shall disclose to the buyer any defect with the property that the real estate agent, manager or developer is dealing with.

43. Transaction reports

(1)Every real estate agent, real estate manager and real estate developer shall, in addition to the reporting obligation under the Financial Crimes Act, submit to the Council quarterly reports in hard copy and electronic format covering each real estate transaction undertaken by the real estate agent, real estate manager, or real estate developer within the quarter to which the report relates.[Cap. 7:07]
(2)The report mentioned in subsection (1) shall be in the prescribed form, and may contain matters, as may be prescribed.
(3)A real estate agent, real estate manager, or real estate developer who fails to comply with subsection (1) shall be liable to pay to the Council an administrative penalty of—
(a)in case of an individual, K1,000,000; or
(b)in the case of body corporate or partnership, K5,000,000.

44. Books of account and audit for real estate agents, real estate managers and real estate developers

(1)Every real estate agent, real estate manager and real estate developer shall keep books of account and proper records in relation to every real estate transaction.
(2)The books of account and the records referred to in subsection (1) shall be in conformity with the national accounting standards, and shall—
(a)on request by the Council, be open for inspection by the Council;
(b)among other things, contain the financial details of each real estate transaction undertaken by the real estate agent, real estate manager or real estate developer.
(3)A real estate agent, real estate manager and real estate developer shall, within one month after the end of the calendar year, appoint a qualified auditor to audit the accounts of the real estate agent or real estate developer, and the auditor shall submit the audit report to the real estate agent, real estate manager or real estate developer within one month after the appointment.
(4)A real estate agent, real estate manager and real estate developer shall keep the transaction records of real estate transaction referred to in this section for a period of at least seven years.

45. Other records to be kept

Every real estate agent, real estate manager and real estate developer shall keep records which contain, among others, details of—
(a)the parties to each real estate transaction;
(b)the date of the real estate transaction;
(c)each mode of payment issued for the payment of a real estate transaction;
(d)each property which is the subject of a real estate transaction;
(e)the nature of each transaction;
(f)the valuation report on each property which is the subject of a real estate transaction; and
(g)the sums of money payable in respect of each real estate transaction.

46. Annual reports of real estate agents and real estate managers

(1)Every real estate agent and real estate manager shall, within three months after the end of each calendar year, submit to the Council a report covering the real estate transactions undertaken by that real estate agent and real estate manager in the previous year.
(2)The report under subsection (1) shall include the audit report of that real estate agent or real estate manager, as the case maybe.

Part VI – Dispute resolution

47. Appeals Committee

(1)The Council shall establish, for the purpose of hearing grievances under this Act, an Appeals Committee (in this Act otherwise referred to as the “Appeals Committee”) which shall comprise of—
(a)one member of the Council, designated by the Chairperson;
(b)two real estate agents, and one real estate manager registered and licensed under this Act, appointed by the Minister; and
(c)a legal practitioner of not less than ten years’ experience, appointed by the Minister.
(2)A person aggrieved by the conduct of a real estate agent, real estate manager or a real estate developer, or by a decision of the Council relating to a registration or licence may make a complaint to the Council.
(3)The Council shall refer the complaint to the Appeals Committee for a hearing within fourteen days after receipt of the complaint.
(4)The decisions of the Appeals Committee shall be by simple majority, and shall—
(a)contain a statement of the reasons for the decision, including a determination of each issue of fact or law;
(b)be signed by each member of the Appeals Committee; and
(c)be submitted to the Council.

48. Powers of the Appeals Committee

(1)The Appeals Committee shall determine the time and place for hearings of the Appeals Committee.
(2)The Appeals Committee may by summons require the attendance and testimony of witnesses and the production of documents.

49. Submission of decision to the Council

(1)The Council shall approve the decision or refer the decision back to the Appeals Committee for reconsideration within fourteen days after receipt of the decision of the Appeals Committee in relation to a hearing.
(2)Where the Council refers the decision back to the Appeals Committee for reconsideration, the Council shall attach to the decision the reasons for the reference for reconsideration.
(3)Where the Council approves the decision of the Appeals Committee, the Council—
(a)shall within fourteen days after the approval serve on the affected party a copy of the decision, and the reasons for the decision;
(b)may suspend or revoke a licence of a real estate agent or real estate manager, or suspend or revoke the registration of a real estate developer; or
(c)take any other action as appropriate.
(4)The Council shall revoke the licence of a person who after being given notice fails to take the required remedial action within the specified time.

50. Alternative dispute resolution

(1)Parties to a transaction under this Act may agree to resolve a dispute that arises in relation to a transaction in accordance with the Arbitration Act;[Cap. 6:03]
(2)An agreement of the parties under subsection (1) shall not oust the jurisdiction of the Court.
(3)Where parties agree to resolve a dispute in accordance with subsection (1), the Arbitrator shall, within fourteen days after the referral of the dispute, initiate action to resolve the dispute.

51. Review of decision of Council

(1)A person who is not satisfied with a decision of the Council may within one month after being informed of the decision, apply to the High Court for a review of that decision.
(2)An application for a review of a decision shall not, unless otherwise determined by the court, operate as a stay of execution of the decision.
[Cap. 6:03]

52. Appointment of real estate inspectors

(1)The Council shall appoint real estate inspectors for the effective implementation of the functions of the Council under this Act.
(2)An inspector appointed under subsection (1) shall be issued with an identity card by the Council.
(3)An inspector shall produce the identity card whenever required in the discharge of the duties of the inspector under this Act.

53. Inspections

(1)An inspector may at a reasonable time during the day for the purpose of inspection, enter the premises of a real estate agent, real estate manager or real estate developer, or premises which the officer has reasonable grounds to believe relate to a real estate transaction, including a transaction otherwise exempted from the application of this Act.
(2)An inspector may only enter premises for inspection after that officer or authorized person has produced for the inspection of the occupier of the premises, the identification and authority of that officer or authorised person.
(3)The inspector may, in furtherance of an inspection, request, among others, for—
(a)copies of real estate agreements;
(b)information and records on real estate transactions; and
(c)the real estate transfer certificate for any completed real estate transaction.

Part VII – Miscellaneous

54. Code of Ethics

(1)The Council shall, develop and adopt a Code of Ethics for real estate agents, real estate managers and real estate developers to regulate the practice and conduct of real estate agents, real estate managers and real estate developers.
(2)The Code of Ethics shall, without derogating from the generality of subsection (1), stipulate the procedures and guidelines for the practice and professional conduct and discipline of real estate agents and real estate developers in accordance with this Act.
(3)The Code of Ethics shall be published in the Gazette.

55. Negligence

A real estate agent, real estate manager or real estate developer negligently misrepresents any data or information obtained in the course of a real estate transaction, shall be personally liable for professional negligence arising from such misrepresentation:Provided that no liability shall accrue against a real estate agent, real estate manager or a real estate developer acting in good faith and applying appropriate skills and knowledge.

56. Administrative sanctions

Any person who—
(a)fails to conspicuously display a licence issued in accordance with this Act contrary to section 36;
(b)fails to use forms issued by the Council for a real estate transaction contrary to section 37; or
(c)fails to submit an annual report to the Council contrary to section 46,
shall be liable to pay to the Council an administrative penalty of K1,000,000 and K100,000 for each day that the default or failure continues.

57. Offences and penalties

Any person who—
(a)advertises as a real estate agent or real estate manager without registration and a licence issued under this Act, or as a real estate developer without registration under this Act;
(b)engages in a real estate transaction without registration and a licence issued under this Act;
(c)falsifies a document under this Act;
(d)obstructs an authorized officer in the performance of the duties of that officer under this Act; or
(e)fails to submit transaction reports contrary to section 43,
commits an offence and shall, on conviction, be liable—
(i)in case of an individual, to a fine of K1,000,000, and to imprisonment for twelve months; and
(ii)in the case of body corporate, to a fine of K5,000,000.

58. Regulations

(1)The Minister may, on the advice of the Council, make regulations to prescribe for—
(a)facilities to be provided by real estate agents, real estate managers and real estate developers;
(b)the content and conduct of examinations for real estate agents, real estate managers and real estate developers;
(c)the establishment of real estate development schemes;
(d)the form and content of reports to be submitted by real estate agents, real estate managers or real estate developers to the Council;
(e)the effective monitoring, assessment and improvement of real estate agency, real estate management and real estate developer practice;
(f)fees for examination, grant or renewal of licence, processing and recording of transactions fees, and any other fees chargeable under this Act; and
(g)any other matters for the effective implementation of this Act.
(2)Notwithstanding the provisions of section 21 (e) of the General Interpretation Act, regulations made under subsection (1) may provide for offences the contravention of which may impose a penalty of—
(a)in the case of an individual, a fine of K 1,000,000 and imprisonment for twelve months; and
(b)in the case of a corporation, a fine of K5,000,000.
[Cap. 1:01]

59 Savings and transition

(1)Any subsidiary legislation made under the Land Economy Surveyors, Valuers, Estate Agents and Auctioneers Act, repealed by the Property Valuation Act, 2024, in force immediately before the commencement of this Act—
(a)shall remain in force, unless in conflict with Act;
(b)shall be deemed to be subsidiary legislation made under this Act; and
(c)may be replaced, amended or repealed by subsidiary legislation made under this Act.
[Cap. 53:08; 26 of 2024]
(2)A real estate agent or real estate manager who is registered under the Land Economy Surveyors, Valuers, Estate Agents and Auctioneers Act, repealed by the Property Valuation Act, 2024, shall continue to practice real estate agency as if registered under this Act.[Cap. 53:08]
(3)Any licence, permit or other authority granted under the Land Economy Surveyors, Valuers, Estate Agents and Auctioneers Act, repealed by the Property Valuation Act, 2024, shall continue, subject to the terms and conditions, to have effect as if it was granted under this Act.[Cap. 53:08]

Schedule (s. 18)

Oath of Secrecy

I, ________________________________________________, being a member of the Council/member of a committee of the Council/having been invited to attend a meeting of the Council/a meeting of a committee of the Council/a member of staff of the Council, do swear/affirm that I will freely without fear or favour, affection, or ill-will discharge the functions of a member of the Council/member of a committee of the Council/member of staff of the Council, and I will not, directly or indirectly, reveal any matter related to such functions to any unauthorized person or otherwise than in the course of duty. So help me God.________________________________________________Signature of the person making the oath or affirmationSworn [or affirmed] by the said ________________________________at ______________ this ________ day of ____________, 20__________Before me:________________________________________________Commissioner for Oaths
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History of this document

13 January 2025
08 November 2024 this version
04 November 2024
Assented to