Agent’s Disclosure of Material Facts to Seller under TRESA

Just like the obligation imposed under TRESA for Buyers, the same provision applies with respect to Sellers.

What Facts and To Whom

TRESA contains the following:

Material facts

22.1  (1)  A broker or salesperson who has a client in respect of the acquisition or disposition of a particular interest in real estate shall,

(a)      take reasonable steps to determine the material facts relating to the acquisition or disposition;

(b)     disclose the material facts to the client as soon as possible after the determination; and

(c)      advise the client to consider whether the material facts affect their decision to acquire or dispose of the interest.

This means:

• Determine
• Disclose
• Advise

the client to consider whether such material facts affect their decision to buy or sell.

Let’s consider a Seller’s decision. Maybe they back onto the 401 and it’s about to expand. Maybe they back onto open space and it’s about to be developed.

Possibly, they had the good fortune to buy when interest rates were 2% and now they are 7%. Their mortgage comes up for renewal in April 2024 and they won’t be able to afford the increase. They can cover the cost for two months and then that’s it.

The house will soon need a new roof. It’s not leaking now, but the replacement will cost $20,000.00. All the kitchen appliances are due for replacement, that’s another $10,000.00, and the kitchen itself is rather shabby. That’s another $30,000.00. So, this is a good time to move.

In these situations, the actual source of the information is likely the Seller, so, you would not be telling them anything they don’t know already.

You could for example, simply make a note that the sale is due to “financial reasons”. The Seller knows all about that, and in fact, that’s the reason they are selling.

If you did discover that the possible development behind them is now moving full steam ahead, this factor would be important in terms of affecting the sale price and the timing. You could make a note “development to the north”.

Now, where are you going to place those two notations? Under REBBA, you likely would not have done anything. Now, under TRESA, write it down, disclose it, ask them to consider the issue and ask them to sign an acknowledgement. These are the steps that need to take place. If they don’t take place, then you run the risk of both disciplinary penalties and civil lawsuits.

At the present time, OREA has not released any Forms which would deal with this type of disclosure.

Let’s consider, in the meantime, for a Seller using something along these lines:

                                      DISCLOSURE

                                      Material Facts

Re: 123 Main Street, Toronto, Ontario

Under the Trust in Real Estate Services Act, effective 1 December 2023, the Seller’s agent has made a determination that there are certain material facts to be disclosed to the Seller in accordance with s. 22. (1).

The following material facts have been identified for disclosure:

1. Real estate development taking place to the north.
2. Expansion of the 401 with increased noise.
3. ____________
4. ____________
5. ____________

The Seller’s Agent hereby advises the Seller to consider whether the above referenced material facts, or any ancillary material facts affect their decision to dispose of an interest in the real estate.

The Seller acknowledges that the Seller’s agent has recommended that legal advice be sought concerning such disclosure and consideration.

Dated at Toronto, this _____ day of December 2023

___________________                                       ___________________

Witness                                                       John Smith (Seller’s Agent)

ACKNOWLEDGEMENT

The undersigned prospective Seller hereby acknowledges receipt of a copy of this Disclosure document,

Dated at Toronto, this ____ day of December 2023

___________________                                       ___________________

Witness                                                       Robert Zimmerman (Seller)

A document along the lines of the one noted above would be suitable for such a disclosure, recommendation for consideration and acknowledgement.

RECORDS

Under REBBA, while material facts were to be disclosed, there was no requirement to document such disclosure in a file.

Under TRESA, that has changed. Written disclosure is required and the Acknowledgement is to be documented and recorded in the Agent’s file. This is on a “best efforts” basis only, because TRESA doesn’t apply to Sellers or Buyers or Consumers. They can do whatever they want. However, the registrant will still have to document the “refusal to sign” in the file in addition to the disclosure document that was tendered.

This means: maintain careful records!

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com