This is a very serious offence.
In this case, a deal fell apart, and the Agent involved actually signed the Mutual Release on behalf of his Buyer client.
The Buyer had provided a $10,000.00 deposit. The Agent falsely prepared a Mutual Release which directed the deposit to be paid as follows:
- $6,000.00 to the Seller, and
- $4,000.00 to the Agent, personally.
The Agent prepared the mutual release, signed it on behalf of his client and submitted it to the listing brokerage.
This was all done without the client’s knowledge, direction or consent.
The listing brokerage thereafter disbursed the deposit according to the terms of the mutual release. The Agent did not provide the $4,000 he received to his client.
The Court concluded that actions of the Agent breached sections 34 and 35 of REBBA, which are as follows:
34 No registrant shall falsify, assist in falsifying or induce or counsel another person to falsify or assist in falsifying any information or document relating to a trade in real estate.
Furnishing false information
35 No registrant shall furnish, assist in furnishing or induce or counsel another person to furnish or assist in furnishing any false or deceptive information or documents relating to a trade in real estate.
The matter came on for trial before the Ontario Court of Justice, which:
- convicted the Agent on two counts of contravening REBBA,
- sentenced the Agent to pay $10,000 restitution to the Buyer and
- two years’ probation.
This Decision was made on August 8, 2018.
In ordinary circumstances, an agent would have no authority to execute such documentation on behalf of a client. A Power of Attorney delegating such authority would be required.
The Listing Brokerage really cannot be called upon to engage in handwriting analysis, but there may or may not be another issue here. The $4,000.00 went to the Agent. I would assume that it went to the Brokerage rather than the Agent directly. That would be fine from the Listing Brokerage’s perspective. Then, there were likely other documents which were falsified too, providing the payment to go to the Agent.
In any event, the Buyer client got his entire $10,000.00 deposit back, by way of an Order for Restitution by the Court. If this matter were simply handled as a disciplinary matter by RECO, this remedy would not be available.
Brian Madigan LL.B., Broker