Question:
Can a Realtor sign paperwork related to listing and/or buying/selling real estate on behalf of their buyer or seller if the client asks/directs them to?
Answer:
I suppose it depends what “realtor” and what documents and whether you are buying or selling.
For a little further clarification, have a look at the paragraph dealing with “Verification” in the Listing Agreement. You will see that authorization is provided in favour of the Brokerage (as agent) not the Listing realtor. The authorization is not contained in a Buyer Representation Agreement (BRA). I suppose, there’s not that much to check on the “buy side”.. However, I would have thought that identity would be one of those (exclusive of any FINTRAC requirements.
Paragraph 10 in fact contains a “power of attorney”.
Let’s have a look:
“10. VERIFICATION OF INFORMATION: The Seller authorizes the Listing Brokerage to obtain any information affecting the Property from any regulatory authorities, governments, mortgagees or others and the Seller agrees to execute and deliver such further authorizations in this regard as may be reasonably required. The Seller hereby appoints the Listing Brokerage or the Listing Brokerage’s authorized representative as the Seller’s attorney to execute such documentation as may be necessary to effect obtaining any information as aforesaid. The Seller hereby authorizes, instructs and directs the above noted regulatory authorities, governments, mortgagees or others to release any and all information to the Listing Brokerage.”
So, we actually have a Power of Attorney appointment provision contained in the Listing Agreement.
The Power of Attorney is in favour of the Brokerage and the Brokerage is given the authority to appoint a delegate. Likely, that would be the real estate agent in charge of the Listing.
The role is restricted to obtaining information from:
- regulatory authorities,
- governments,
- mortgagees or
- others (presumably including mortgage brokers, surveyors and lawyers).
The only problem here is that powers of attorney in Ontario now require execution in the presence of two witnesses. It used to be one, and now it’s two.
See the Substitute Decisions Act (1992):
Execution
10 (1) A continuing power of attorney shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness. 1996, c. 2, s. 6 (1).
The Listing agreement falls short since 1992 (31 years ago), and “yes” there should have been a change. There certainly has been lots of time.
It’s possible that in some instances, there were two witnesses and Paragraph #10 and the Power of Attorney contained in it would be in effect.
One other thing, since Covid, witnesses can be “remote”:
See s. 3(1) (1):
“Remote witnessing of powers of attorney
3.1 (1) In this section,
“audio-visual communication technology” means any electronic method of communication which allows participants to see, hear and communicate with one another in real time. 2021, c. 4, Sched. 8, s. 1 (2).
Permitted use of audio-visual communication technology
(2) A requirement under this Act that a power of attorney be executed in the presence of witnesses may be satisfied through the use of audio-visual communication technology, if,
(a) at least one person who is acting as a witness is a licensee within the meaning of the Law Society Act at the time;
(b) the signatures required by this Act are contemporaneously made; and
(c) the prescribed requirements, if any, are met. 2021, c. 4, Sched. 8, s. 1 (2).”
Here, we need two people actually present, or if it’s remote, then one person must be a lawyer.
But, in all fairness, the real estate community seems to have fallen asleep over this matter for the last 31 years.
To address your question specifically:
“Can a Realtor sign paperwork related to listing and/or buying/selling real estate on behalf of their buyer or seller if the client asks/directs them to?”
Yes, if the Realtor:
- is delegated by the brokerage,
- with respect to a Listing,
- seeking information,
- and the Power of Attorney is properly executed.
Brian Madigan LL.B., Broker