Conduct & Trade Practices FAQs

STEP ONE: If not already obtained, any additional documents required for buyers such as: Working with the Real Estate Industry form, Buyer (Designated) Brokerage Agreement, Customer Status Acknowledgements, etc. Subscribe Share Past Issues Translate would need to be completed with the new buyer.

STEP TWO: Complete an amendment to the APS, adding the new buyer. The following clauses for the amendment clearly outline the addition of the new buyer (insert the individual’s name where the clauses reference [new party]): “a. [New party] is entering into the amendment to become a party to the agreement of purchase and sale (“the Agreement”) dated* the [date] day of [month] between [name of originally listed buyer] as buyer and [name(s) of seller(s)] as seller. The Agreement and the existing parties to the Agreement are entering into this amendment to accept the [new party] being added to the Agreement as buyer; and” “b. [New party] confirms their acceptance of all of the terms of the Agreement. *Date refers to the date of acceptance.

STEP THREE: The added buyer and all of the original parties must all sign the amendment to the APS consenting to the additional buyer being added.

STEP FOUR: (Optional) Have the added buyer initial and date the bottom of each page of a copy of the original APS, the PDS, the Schedule of Leased/ Rented Equipment and any other relevant real estate documents, as evidence that the new buyer clearly read and understood all terms.

Read the full approved policy on 'Coming Soon' advertising. The approved policy for 'Coming Soon' advertising would be applicable to any advertisement for a property where:

• the property is not already subject to an effective brokerage agreement;
• the property is not entered into the MLS® system;
• the property is not available for general showings or open houses;
• the property is not otherwise given full exposure to the market; and
• the licensee anticipates a property will be listed for sale and advertises it on a limited basis as ‘coming soon’.
• Any agreement to offer ‘Coming Soon’ advertising does not constitute a brokerage agreement or service agreement.

The Commission does not have a mandatory form to offer 'Coming Soon' advertising to a seller, however Brokerages may create their own. Any agreement that is used for this purpose must include:

• the name of the brokerage;
• the name of the seller(s)
• the fee charged, if applicable; and
• an expiry date.
• The approved policy states that offering or agreeing to offer ‘Coming Soon’ advertising for a seller must be in writing, but does not obligate the seller to enter into a brokerage agreement or a service agreement with the brokerage.

All ‘Coming Soon’ advertisements, whether it is a social media post, a lawn sign or an online ad, must include the following:

• the full brokerage name; and
• the following qualifying statement identifying that the property is not currently on the market: “This is not an offering for sale”.

This number of pages line must amount to only the pages forming and attached to the agreement at the time it was written, which includes Part I, Part II and any attached schedules or addendums.

What isn’t included in this page number and does not form part of the Agreement of Purchase and Sale? Some examples are: a Counter Offer, Property Condition Disclosure Statement or a Transaction Brokerage Agreement.

Details must be documented clearly when a cash back to a buyer or an inducement is offered by the brokerage(s) to complete a transaction. When documenting cash backs, make sure you record not only the amount of the cash back, but also how and when the cash back will be provided to the buyer.

To offer a cash back, the purchase price could be reduced by the cash back amount and the seller could provide the buyer with a cheque or a money order, or any other arrangement agreed to in writing by the buyer and seller. Documentation of the cash back also must be provided to the buyer’s financial institution.

An inducement is a reward to a buyer or a seller on a specific transaction that results in the completion of that transaction. In this situation, a brokerage (or brokerages) offers an arrangement specific to the transaction to facilitate the closing of the transaction. For example, a brokerage may offer to provide new appliances to a buyer if they proceed with the purchase or offer a commission reduction to a seller. As with documenting cash backs, you need to have a written record of the inducement and how and when it will be delivered

Handeling competing offers is different depention on whether you are representing the seller or the buyer. For indepth information, read our full article.

The Signature of Brokerage Representative line at the end of brokerage and service aggrements is to be signed by the licensee working with the consumer; a typed in name is not sufficient.

When using WebForms, you may encounter instances where it automatically inserts industry members names into that line. In this instance, delete the inserted text and physically sign the line when filling out the form.

The remuneration clause has been modified to suit a variety of business models. No matter whether a brokerage charges a flat fee, a percentage, a range, or a combination of any of those options, two blank lines have been used for flexibility. It is important to note, however, that licensees’ fiduciary duties require that the amount the brokerage is to be paid be disclosed to the buyer.

If that amount is unclear at the time the brokerage agreement is completed, or if the remuneration changes prior to the facilitation of an offer (i.e. a range to a set fee), the brokerage agreement must be amended to reflect the accurate remuneration once that remuneration amount is known.

In real estate transactions…

• independently trade or attempt to trade in real estate (see definition of trading);
• review, interpret, discuss or explain listings, offers, contracts, service agreements or brokerage agreements with anyone outside the employ of the brokerage, including clients and customers of the brokerage;
• present and sign (outside of witnessing) any documents relating to a real estate transaction including service agreements and brokerage agreements on behalf of the brokerage;
• assist a consumer to negotiate any terms of a real estate transaction; or
• act in an agency capacity on behalf of a consumer.

In working with real estate licensees…

• host open houses on their own (all consumer inquiries must be directed to the licensee);
• attend property inspections in the place of a real estate licensee;
• advertise in conjunction with a real estate licensee without disclosing unlicensed status; or
• relay any information to clients or customers of the brokerage that could be considered a comparative market analysis (only factual, advertised listing information can be provided to consumers on a specific property).

If a date in a contract needs to be extended, whether it is financing, inspection, duration, etc. the extension must be done, in writing, before the original deadline passes.

The compliance inspectors, through the course of inspecting transaction files, have seen instances where brokerage agreements were amended to extend the length of the contract, but the amendments were created and signed after the original seller brokerage agreements expired. This is just plain wrong. When a contract expires, it ceases to exist. And, you cannot amend something that no longer exists.

Compensation must flow from the brokerage to the individual licensees or the individual approved sales corporations. Remuneration cannot be paid to a member of the team and then distributed to the team members because all service contracts are between the consumer and the brokerage.

The licensees with the brokerage are not parties to any contracts entered into between them on behalf of the brokerage and the consumers who have engaged the brokerage services. A review of applicable case law also demonstrated that licensees are only entitled to compensation from the brokerage with which they are licensed.

When buying real estate, the onus is on the buyer to ask questions if something is specifically important to them rather than relying on a licensee to anticipate their needs.

Buyers may have specific areas of concern that would cause them to avoid a property that does not include cosmetic or structural issues. These intangible attributes to a property may cause it to be considered “stigmatized,” meaning it has had a traumatic or horrific circumstance occur in or near it, but does not specifically effect the appearance or function of the property itself.

See our full article on how to deal with stigmatized properties here.

Real estate contracts remain with the brokerage unless the broker and clients of the brokerage (i.e. buyer/seller) agree in writing to change the representation to the brokerage you end up transferring your licence too. It’s important to note that you cannot interfere in real estate contracts your clients signed with the brokerage.

If the broker and clients agree in writing to transfer their representation to another brokerage that is fine, but you cannot approach clients and interfere in their current contract. If your current broker agrees to pay you for your services for the transaction you facilitated, payment must be issued to your new brokerage, not to you specifically.

For more information, see our full article here.

Software to secure an electronic signature may be used on any service contracts or purchase agreements; however, the Commission does not promote, prefer or otherwise endorse a particular brand of electronic signature software. The broker is directly responsible to verify that any electronic signature service used to produce signatures on agreements, in the eyes of the law, creates legally binding service agreements and legally binding agreements of purchase and sale for real estate. The Commission recommends that brokers seek independent legal advice as part of this verification process.

If the brokerage chooses to make an electronic signature service available to their clients, the brokerage must retain copies of all signed agreements and acknowledgements (i.e. Certificate of Authenticity) which includes the e-signature of a client or customer of the brokerage. These certificates can be retained in either hardcopy or saved electronically at the brokerage. It is not necessary for the brokerage to retain certificates from cooperating brokerages provided it is agreed that it represents a legal signature.

For more information, see our Common Errors when using Electronic Signatures

An excess trust deposit is when the deposit held in a brokerage’s trust account for a transaction is greater than the remuneration owed to the brokerage. When an excess trust deposit exists, the Seller or their lawyer will request the excess trust deposit to be released to the Seller’s Lawyer’s trust account prior to closing in order to facilitate the closing.

When using the Commission’s Agreement of Purchase and Sale, the Buyer and Seller consent to the early release of excess trust funds in clause 1.3 of the Agreement. Clause 1.3 states:

• “The Buyer and Seller agree that any deposit held in trust by the Brokerage per clause 1.1 that is in excess of the remuneration (including HST) owed to that Brokerage on closing of the transaction, shall be transferred to the Seller’s lawyer’s trust account once conditions unrelated to title have been met. These funds shall remain in the Seller’s lawyer’s trust account until closing.”

When NOT using the Commission’s Agreement of Purchase and Sale, and the Seller or their Lawyer requests excess trust funds prior to closing:

• The Brokerage holding the trust funds must have mutual written consent with bona fide signatures from ALL parties (Buyer and Seller or their respective lawyers) prior to disbursing the funds from their trust account. An Amendment to the Purchase and Sale Agreement or another written form (emails are not sufficient) that gives clear instruction all parties will satisfy this requirement.

Useful Information
When not using the Commission’s Agreement of Purchase and Sale and the broker holding the funds requires written mutual consent (an Amendment), refer to the clause book which includes a clause that can be used in excess trust deposit situations.