Notices Section
This is the provision in the OREA standard form Agreement of Purchase and Sale concerning “Notices”:
3. NOTICES: The Seller hereby appoints the Listing Brokerage as agent for the Seller for the purpose of giving and receiving notices pursuant to this Agreement. Where a Brokerage (Buyer’s Brokerage) has entered into a representation agreement with the Buyer, the Buyer hereby appoints the Buyer’s Brokerage as agent for the purpose of giving and receiving notices pursuant to this Agreement. The Brokerage shall not be appointed or authorized to be agent for either the Buyer or the Seller for the purpose of giving and receiving notices where the Brokerage represents both the Seller and the Buyer (multiple representation) or where the Buyer or the Seller is a self represented party. Any notice relating hereto or provided for herein shall be in writing. In addition to any provision contained herein and in any Schedule hereto, this offer, any counter-offer, notice of acceptance thereof or any notice to be given or received pursuant to this Agreement or any Schedule hereto (any of them, “Document”) shall be deemed given and received when delivered personally or hand delivered to the Address for Service provided in the Acknowledgement below, or where a facsimile number or email address is provided herein, when transmitted electronically to that facsimile number or email address, respectively, in which case, the signature(s) of the party (parties) shall be deemed to be original.”
Paragraph Reviewed
That was a rather intense paragraph, and some might have drifted somewhat in their thoughts before digesting it all. So, let’s pull it apart and read it again (bullets added by me):
3. NOTICES:
The Seller hereby appoints the Listing Brokerage as agent for the Seller
for the purpose of giving and receiving notices pursuant to this Agreement.
Where a Brokerage (Buyer’s Brokerage) has entered into a representation agreement with the Buyer,
the Buyer hereby appoints the Buyer’s Brokerage as agent for the purpose of giving and receiving notices pursuant to this Agreement.
The Brokerage shall not be appointed or authorized to be agent
for either the Buyer or the Seller
for the purpose of giving and receiving notices
where the Brokerage represents both the Seller and the Buyer (multiple representation) or
where the Buyer or the Seller is a self represented party.
Any notice relating hereto or provided for herein shall be in writing.
In addition to any provision contained herein and in any Schedule hereto,
- this offer,
- any counter-offer,
- notice of acceptance thereof
- or any notice to be given or received pursuant to this Agreement
- or any Schedule hereto (any of them, “Document”)
shall be deemed given and received when
- delivered personally or
- hand delivered to the Address for Service provided in the Acknowledgement below, or
where a facsimile number or email address is provided herein,
- when transmitted electronically to that facsimile number or email address,
respectively, in which case, the signature(s) of the party (parties) shall be deemed to be original.
COMMENTS upon the Paragraph
The comments made here, appear in Italics.
Appointments
3. NOTICES:
The Seller hereby appoints the Listing Brokerage as agent for the Seller
for the purpose of giving and receiving notices pursuant to this Agreement.
This is fine. It was up to date as of 30 November 2023, but now we have the new TRESA legislation. As a result, this just covers Brokerage representation under Form 200. What about Designated Representation under Form 271?
Form 200: Listing Agreement Seller Representation Agreement Authority to Offer for Sale
Form 271: Listing Agreement Seller Designated Representation Agreement Authority to Offer for Sale
Under 200, the Brokerage is appointed as the “agent”. Under 271, the Designated Representative is appointed as the agent.
Now that 90% of appointments involve 271, we do have to make an amendment to the APS document in order to account for this fact.
Where a Brokerage (Buyer’s Brokerage) has entered into a representation agreement with the Buyer,
the Buyer hereby appoints the Buyer’s Brokerage as agent for the purpose of giving and receiving notices pursuant to this Agreement.
Again, this says nothing about the Buyer’s Designated Representative under Form 371.
Restrictions upon Appointments
The Brokerage shall not be appointed or authorized to be agent
for either the Buyer or the Seller
for the purpose of giving and receiving notices
where the Brokerage represents both the Seller and the Buyer (multiple representation) or
where the Buyer or the Seller is a self represented party.
This means, of course, no multiple representation when it comes to the Brokerage. This is fine, but it says nothing about using 271 and 371. That’s a clear multiple representation situation as well, and would be contrary to the Act, the appointments are OK, but the delegation concerning notices would not be.
Also, the Brokerage would be prevented to give or accept notices on behalf of a self-represented party. Again, what about the Designated Representative? It doesn’t say anything about them. It should indicate the same warning.
Any notice relating hereto or provided for herein shall be in writing.
All notices in respect to real estate transactions must be in writing in accordance with the Statute of Frauds.
What Documents
In addition to any provision contained herein and in any Schedule hereto,
- this offer,
- any counter-offer,
- notice of acceptance thereof
- or any notice to be given or received pursuant to this Agreement
- or any Schedule hereto (any of them, “Document”)
Kindly note that you must have an acceptance in writing DELIVERED to the other side in the transaction as set out below.
When and How is the actual Delivery
shall be deemed given and received when
- delivered personally or
this means to the actual person!
- hand delivered to the Address for Service provided in the Acknowledgement below, or
this is a simple delivery to the address. It does not get any easier than this. Is there such an address? There better be, or this provision doesn’t work. So, fill out the address in the Acknowledgment section right from the outset, so that this is covered. However, you don’t actually sign that section until you have your final copy. There should be a provision to initial at the outset, followed by signature at the end. Unfortunately, that’s not the way it’s set up.
where a facsimile number or email address is provided herein,
- when transmitted electronically to that facsimile number or email address,
This means fax or email. That’s the easiest method by far. Right now, that is only authorized if both the Seller and the Buyer have executed Forms 200 and 300, which would be less than 10% of the time.
How would be know? It’s covered off in the Confirmation of Cooperation and Representation. Remember the “representation” part!
respectively, in which case, the signature(s) of the party (parties) shall be deemed to be original.
This says adopted or copied signatures are real signatures for the purposes of the contract.
Going forward, we do have a problem using emails to accept Offers in this way,
Was the appointment authorized? “Yes”, if it was Form 200 or 300. But, “no” if it was Form 271.
This means that you have to make some changes! It’s only been a year since TRESA came into effect on 1 December 2023.
If you need to squirm out of a deal that you signed, maybe it was never accepted at all. That means no deal, no contract, no liability. You can get your deposit back.
Brian Madigan LL.B., Broker