A recently-published Registrar’s Bulletin addressed the proper use of lockboxes on listed properties, the permissions required from sellers, the expectations for protection of the seller’s property when a lockbox is in use and the importance of keeping up to date on technological advances and best practices when using lockboxes.
Be sure you are complying with the rules – read the full Registrar’s Bulletinhere
RAHB’s also has rules and policies on the use of lockboxes and seller’s keys. They are found in the Rules & Regulations, Section 2 MLS® Listings, Subsection 2.17; Section 12 Trading Procedures, Subsection 12.07, and in MLS® Policies – Miscellaneous #16, as follows:
Section 2 MLS® Listings
2.17 Members shall ensure that lock boxes provided for the purposes of access to the property which is the subject of an MLS® Listing are set with a unique code for the security of their Seller’s property. Further, Members shall change the lock box combinations, as required during the course of the Listing to maintain reasonable security, and not use any preset manufacturers’ codes.
Section 12 Trading Procedures
12.07 With the knowledge and authority of the Listing Brokerage, keys or other entry systems may only be used by Members for the purpose of inspecting properties or showing properties. The making of duplicate keys from the one obtained, the action of failing to return the key to the Listing Brokerage within a reasonable time, or the turning over of the key or information on the entry system to any Person not authorized by the Listing Brokerage, is an unauthorized use. The member conducting the showing or inspection will remain on the premises during the entire period of access unless permission in writing has been obtained from the Listing Brokerage and will ensure that all security precautions are taken.
12.07a) Keys shall be re-deposited in a lockbox immediately upon exiting the property and the lockbox shall be properly secured.
12.07b) The member conducting the showing or inspection is solely responsible to ensure that all security precautions are taken prior to departing the property.
MLS® Policies – Miscellaneous
16. Any member found to be in breach of Rules and Regulations, Section 2 – MLS® Listings sub-section 2.17 (lock box code) will be fined $50 for the first offence, and $200 for the second and any subsequent offence.
RECO is performing a review of its Mandatory Continuing Education (MCE) program, and part of the review is a survey that has now been sent to all registrants. The survey is asking for your opinions about the MCE program.
Check your inbox (or spam folder) for a message from CamProf Inc., the consultant engaged by RECO to lead the MCE program review. Be sure to take this opportunity to have your say, and help maintain high professional and educational standards in your profession. The survey period is from May 14-28, 2018, so don’t delay!
The Real Estate Council of Ontario (RECO) has issued a call for nominations for the RECO Board of Directors. RECO is looking for candidates who are passionate about the profession and how it is regulated, with a commitment to consumer protection.
This year, three Industry Directors will be elected to serve on RECO’s Board of Directors until May 2021, one for each region.
Who should run for RECO’s Board of Directors?
RECO is seeking candidates who possess the skills, experience and expertise necessary to perform the Board’s strategic leadership and oversight responsibilities. In order to accomplish this work, Directors are expected to use their best efforts to help RECO achieve its goals and fulfill its mandate. That means being informed about key issues, participating in key discussions, and showing commitment to the Director role.
What should you expect as a Director?
The Board of Directors meets approximately six times a year. In addition to Board meetings, Directors normally chair or serve as a member of at least two committees, and may be asked to attend conferences and other events as a representative of RECO. A potential Director should take these time commitments into consideration.
Question: I just saw a listing where the Co-operating Brokerage commission has a condition reducing the commission paid if a buyer is shown the listing by the listing salesperson, but an offer is brought by another REALTOR®. Is this ok?
Answer: Yes, this is perfectly acceptable, provided the condition in the Remarks section of the listing is the same as the commission on the Listing Agreement, which are both signed by the Seller.
Conditions to the Co-operating Brokerage commission can’t be added to the Remarks section of the Property Information Form, or to an additional Schedule, if they are different than what is on the Listing Agreement. By ensuring that the commission to the Co-Operating Brokerage is the same on the Listing Agreement, Property Information Form, any Schedule to the Listing Agreement and in the Remarks section, you will be complying with Sections 38 and 39 of the RECO Code of Ethics.
This article was originally published by RECO on January 27, 2017
Multiple representation is garnering media attention, and a disciplinary decision from last year emphasizes the consequences of mishandling the disclosure process.
All registrants should know that full disclosure is required when a brokerage represents two parties for the same trade in real estate (including when two different salespeople from the same brokerage are involved), and that disclosure is also required for any commission reduction agreement.
In an April 2015 hearing considering the conduct of Zahra Shaker-Shariat-Panahi (also known as Farah Shaker-Shariat-Panahi at that time, now registered as Zahra Panahi, also known as Farah Panahi), the discipline panel focused heavily on the close relationship between non-disclosure of multiple representation and non-disclosure of a reduced commission agreement.
“The disclosure of multiple representation on the part of a listing salesperson could easily raise the issue of a collateral commission agreement, something which other registrants and would-be buyers would have a clear interest in understanding and considering in making any offers,” it noted.
In the hearing it was revealed that:
Panahi failed to inform all the participants to the trade that she was the salesperson representing both a potential buyer and the seller.
She failed to disclose the terms of the reduced commission agreement to not only other buyers and their brokerages, but her own brokerage as well.
This is important to note because registrants can only trade on behalf of the brokerage that employs them. For this reason, registrants must do their part to ensure the brokerage conducts its affairs ethically on all levels. Panahi should have informed her brokerage of the details of the commission agreement to ensure it could comply with its own disclosure requirements.
The discipline panel described Panahi’s conduct as “disgraceful, dishonourable, and unprofessional”. Failure to disclose multiple representation and her commission agreement created an “effective monopoly over information,” which led to an “uneven playing field” over the trade of the property. As a result, Panahi was ordered to pay a $15,000 fine, and to complete an educational course on Ethics and Business Practice.
The panel concluded that Panahi breached the following sections of the Code of Ethics:
Brokers and salespersons
2. (1) A broker or salesperson shall not do or omit to do anything that causes the brokerage that employs the broker or salesperson to contravene this Regulation (With reference in this case to s.25 of the Code of Ethics set out below).
Agreements relating to commission
25. (1) If a brokerage has a seller as a client and an agreement between the brokerage and the seller contains terms that relate to a commission or other remuneration and that may affect whether an offer to buy is accepted, the brokerage shall disclose the existence of and the details of those terms to any person who makes a written offer to buy, at the earliest practicable opportunity and before any offer is accepted.
(2) Subsection (1) applies, with necessary modifications, to a brokerage that has a seller as a customer, if the brokerage and the seller have an agreement that provides for the brokerage to receive written offers to buy.
Fairness, honesty, etc.
3. A registrant shall treat every person the registrant deals with in the course of a trade in real estate fairly, honestly and with integrity.
4. A registrant shall promote and protect the best interests of the registrant’s clients.
Conscientious and competent service, etc.
5. A registrant shall provide conscientious service to the registrant’s clients and customers and shall demonstrate reasonable knowledge, skill, judgment and competence in providing those services.
Nature of relationship
17. If a registrant represents or provides services to more than one buyer or seller in respect of the same trade in real estate, the registrant shall, in writing, at the earliest practicable opportunity and before any offer is made, inform all buyers and sellers involved in that trade of the nature of the registrant’s relationship to each buyer and seller.
37. (1) A registrant shall not knowingly make an inaccurate representation in respect of a trade in real estate.
Error, misrepresentation, fraud, etc.
38. A registrant shall use the registrant’s best efforts to prevent error, misrepresentation, fraud or any unethical practice in respect of a trade in real estate.
Unprofessional conduct, etc.
39. A registrant shall not, in the course of trading in real estate, engage in any act or omission that, having regard to all of the circumstances, would reasonably be regarded as disgraceful, dishonourable, unprofessional or unbecoming a registrant.
This article was reprinted with the permission of RECO.
RECO often gets complaints from consumers about advertisements for the home they have bought or sold. Here are four advertising issues that often upset buyers and sellers. Each one could be a breach of the Code of Ethics if you don’t take proper steps and obtain the necessary consent.
Their listing shows up where they didn’t expect it
When brokerages share data, listings often end up captured and advertised by another brokerage through a shared advertising agreement. This can catch consumers by surprise if this isn’t how they thought the brokerage would market their home. If the listing will appear across multiple sites, make sure the seller is aware and they’re okay with it. Fully explain the implications of advertising or promotional clauses in listing agreements, and keep in mind sections 3, 4, and 5 of the Code of Ethics.
Ads that include images of the home they just bought
Before the transaction is completed, you only need the seller’s written consent to advertise the property. However, after the deal has closed, the buyer’s consent in writing is also required, even if you’re only placing a simple ad that shows the property as sold. See section 36 (8) of the Code of Ethics.
Ads that contain info about the buyer or seller
Even if the owner of the property has consented to advertising their property, they may not want any information about themselves to be included. If you want to include any information about either party of the transaction, you must get written consent from that party. See section 36 (7) of the Code of Ethics.
Ads that contain info about the transaction
If your ad will include pricing information, or any other aspects of the deal, you need to obtain written consent from both parties. Even if you’re only advertising that the property sold for over asking, that’s private information that requires their permission. See section 36 (9) of the Code of Ethics.
REMEMBER TO DEAL WITH THE OTHER PARTY VIA THEIR REPRESENTATIVE
When obtaining consent from the other party, it’s important to communicate with them via their representative. For example, if you are representing the seller, you must obtain consent from the buyer via their representative, unless the buyer’s brokerage has given you written permission to talk to the buyer directly. See section 7 (1) of the Code of Ethics.
This article was originally published by RECO on February 28, 2017. Reprinted with the permission of RECO.
RECO has issued a new Registrar’s Bulletin that outlines the steps you need to take before you receive any written direction from your client about “no offers until” and then how to deal with pre-emptive (or “bully”) offers.
The main takeaways for members:
You must act in strict accordance with the instructions you are given by your client, so it is very important that the written direction from the seller is detailed and very clear. As well, you must make sure the seller understands the implications of holding offers.
After giving instructions to hold offers until a particular date, your seller may change his or her mind and wish to view one or more offers. If this happens, you will require new written directions from the seller to override the previous instructions.
For what happens next, the Registrar’s instructions are very clear:
“First, you must change the notes to any listing for the property, to accurately reflect the new offer process.
“Second, you are expected to notify, in writing, anyone who has expressed an interest in the property of the change to the offer process. An expression of interest includes parties that have booked viewing appointments, have viewed the property, have informed the brokerage or the listing representative that they will be submitting an offer on the property, or have submitted an offer or an offer summary sheet on the property. In addition to traditional forms of written notice, text message and email are also acceptable.” (excerpt from Registrar’s Bulletin #2017-1, February 21, 2017)
Do you understand the real estate forms you are using?
OREA has developed a library of video tutorials to help you understand and use OREA’s standard forms.
The tutorials are short, easy-to-follow guides designed to provide crucial information when you need it. You can find OREA’s growing list of tutorials at any time via the webinar and tutorial archive on OREA’s website (orea.com – log in as a member, then choose “Standard Forms” from the menu on the left). As well, OREA staff are on hand to help you navigate the tutorials – you can reach them at firstname.lastname@example.org.
The following article was written by RECO and published in a Registrar’s Bulletin dated April 17, 2015. This article is reprinted with permission.
After months of searching for the perfect home, Anna and Mark† finally found it. They were delighted with their new home and with the service of their real estate salesperson. A few weeks later, Anna and Mark learned that their new home had been highlighted in a large advertisement published in a national newspaper. The advertisement contained private information from their agreement of purchase and sale including the price they paid, terms, address and other particulars of their new property.
At no time had Anna and Mark provided their consent to advertise any information about the purchase of their new home with the public. Furthermore, during their search for a home, they had been assured on a number of occasions about privacy laws that protect their privacy. Anna filed a complaint with RECO.
Upon learning about the complaint, the salesperson who represented the seller, and who had placed the advertisement in question, contacted Anna to apologize and took full responsibility.
RECO conducted a thorough investigation. A Discipline Panel determined that the seller’s real estate salesperson was in violation of several sections of the Code of Ethics under REBBA 2002 including:
36.(8) A registrant shall not include anything in an advertisement that could reasonably be used to identify specific real estate unless the owner of the real estate has consented in writing.
36.(9) A registrant shall not include anything in an advertisement that could reasonably be used to determine any of the contents of an agreement that deals with the conveyance of an interest in real estate, including any provision of the agreement relating to the price, unless the parties to the agreement have consented in writing.
The salesperson was ordered to pay a penalty of $8,000.
When advertising that a property is sold, you may not include anything (such as an image or text) that could reasonably be used to:
Identify any party to the transaction, unless they have consented in writing S.36.(7)
Identify the specific property, unless the owner of the real estate has consented in writing S.36.(8)
Determine any of the contents of an agreement relating to the transaction including any provision that relates to the price (e.g., % of list price) or terms, unless the parties to the agreement have consented in writing S.36.(9)
Determining whose written consent to seek ‐ the buyer, seller or both ‐ depends on:
When the advertisement is distributed (before versus after the transaction has completed).
Who is placing the advertisement (the buyer’s brokerage or the seller’s brokerage).
Remember, if you need to contact a party that was represented by another brokerage, communication must go through that other brokerage, unless you first obtain that brokerage’s written consent to contact the party directly. S.7. Code
If the advertising will appear before the transaction is completed:
If the advertising will appear after the transaction is completed:
Please see RECO’s Advertising Guidelines and Advertising Checklist for more information.
† The information provided in this article is based on an actual discipline hearing that was dealt with by RECO. Anna and Mark are fictitious names used to protect the identity of the complainants. You can review this and other RECO discipline decisions by visiting the Complaints and Enforcement section of RECO’s website.
Members have been asking about how to deal with pre-emptive, or bully, offers. You asked, we answer.
Q. When a Seller says “No offers until …”, can I present an offer that comes in before the date specified?
A. The short answer is No. When a seller provides written instructions, via OREA Form 244 “Seller’s Direction re Property/Offers”, that offers will be held until a particular date, those instructions must be followed to the letter.
Q. What if the buyer insists on having the offer presented?
A. The buyer will have to wait with everyone else or walk away … the instructions from the Seller are that no offers will be presented until a specified date in the future.
Q. What if the Seller changes his or her mind and wants to see an offer?
A. In this case, and you are the listing salesperson, you must do two things:
Change the remarks section of your listing to remove the “no offers until” notation
Contact all the Co-operating Salespeople who showed an interest in presenting offers or who registered offers and arrange for a time for offer presentation of all offers
These two steps should be performed with all reasonable speed. Now that offers are being presented to your Seller, you want to make sure the Seller has the opportunity to review all offers to they can get the best outcome on the sale of their home.
(Note: as good practice, you should also contact all Co-operating Salespeople who showed the property and let them know offers are being presented – they may have clients or customers who were holding off making a decision about making an offer until closer to the date specified for offer presentations.)
Q. What about “No offers until (specified date), but the Seller will review offers prior to this date”?
A. This is a bit of an odd instruction, because it’s really saying the Seller will look at offers whenever they come in. However, if you have a Seller who mostly wants to wait for offers but will look at something that comes in before the specified date, here’s what you do:
Have your Seller complete Form 244 “Seller’s Direction re: Property/Offers” and make a note of the full instructions in the Remarks section of the listing.
If you get an offer before the specified date and the Seller wants to review the offer, contact all Co-Operating Salespeople who registered offers to let them know they can present their offers as well.
Again, to be sure you are being fair to everyone and you are working in the best interests of your Seller, you should also contact the Co-operating Salespeople who showed the property to let them know that offers are being presented, just in case their buyers are interested in putting in an offer.
You should be contacting the Co-operating Salespeople with reasonable speed so your Seller has the chance to review all offers and get the best outcome on the sale of their home.
Q. What do you do if someone isn’t following the rules?
A. If you find yourself in a situation where the listing brokerage didn’t let you know that offers were being presented before the time noted on the listing, you should file a formal complaint with either RAHB’s Professional Standards Committee or RECO. For more information about how to file a complaint, contact Angela at email@example.com or 905.529.8101.
There continues to be some misunderstandings about how to use OREA Form 801 – Offer Summary Document.
This form was created by OREA to give members a document to assist them to comply with Bill 55, which requires that a listing brokerage retain copies of all written offers to purchase or copies of a “prescribed document” (Form 801) for each of those offers.
Here are three things you should know about the completion of Form 801:
In practice, the buyer’s representative can choose whether to provide the summary document and is not obligated to do so. The listing brokerage may have to complete Form 801 if that’s the document they intend to keep (instead of the offer).
The listing brokerage must present all offers, regardless of whether a cooperating brokerage has provided an offer summary document or not. Form 801 is not part of the offer, so it is not required before an offer can be presented.
An email or fax from the cooperating brokerage that there is an offer to present is sufficient for a listing broker to arrange for the offer presentation.
You can find this, and much more, information on RECO’s Q & A Fact Sheet . Check it out!