This is Marketing paragraph:
“6. MARKETING: The Seller agrees to allow the Listing Brokerage to show and permit prospective buyers to fully inspect the Property during reasonable hours and the Seller gives the Listing Brokerage the sole and exclusive right to place “For Sale” and “Sold” sign(s) upon the Property. The Seller consents to the Listing Brokerage including information in advertising that may identify the Property. The Seller further agrees that the Listing Brokerage shall have sole and exclusive authority to make all advertising decisions relating to the marketing of the Property for sale during the Listing Period. The Seller agrees that the Listing Brokerage will not be held liable in any manner whatsoever for any acts or omissions with respect to advertising by the Listing Brokerage or any other party, other than by the Listing Brokerage’s gross negligence or wilful act. The Seller acknowledges the Brokerage in accordance with MLS® Rules and Regulations, and the Canadian Real Estate Association REALTOR® Code of Ethics, this Listing shall be, within three (3) days of Public Marketing, placed on an MLS® System for cooperation with other REALTORS®.”
Review
Set out below and marked in bold and italics are those words that are inserted by me to assist in the review. They are not set out in the clause itself. Let’s look at that paragraph in a little more detail:
6. MARKETING:
The Seller agrees to allow the Listing Brokerage
Showings by Listing Brokerage
to show and
Full Inspections by Buyers
permit prospective buyers to fully inspect the Property
during reasonable hours and the
Signage
Seller gives the Listing Brokerage the sole and exclusive right to place “For Sale” and “Sold” sign(s) upon the Property.
Advertising: Property Identification
The Seller consents to the Listing Brokerage including information in advertising that may identify the Property.
Advertising: Decisions
The Seller further agrees that the Listing Brokerage shall have sole and exclusive authority to make all advertising decisions relating to the marketing of the Property for sale during the Listing Period.
Advertising: No Liability
The Seller agrees that the Listing Brokerage will not be held liable
in any manner whatsoever for any acts or omissions with respect to advertising by
- the Listing Brokerage or any other party,
- other than by the Listing Brokerage’s gross negligence or wilful act.
Advertising: Public MLS within 3 Days
The Seller acknowledges the Brokerage
in accordance with MLS® Rules and Regulations, and
the Canadian Real Estate Association REALTOR® Code of Ethics,
this Listing shall be, within three (3) days of Public Marketing, placed on an MLS® System for cooperation with other REALTORS®.
COMMENT
This provision with respect to marketing seems very broad. It’s rather strange that it enables the Listing Brokerage to provide the Buyer with a full inspection opportunity. Possibly, in many cases, that’s not appropriate. Is this inspection: 1) prior to an Offer, 2) during a conditional period, or 3) only with an unconditional agreement? The document does not specify.
Signage is authorized, but, in every case, is this suitable? What about the sale of a business? What if a nearby property is still on the market?
All the advertising decisions will be made by the Listing Brokerage. This might deal with newspaper and social media advertising, as well as open houses. If the Seller wants to participate, then, additional matters should be addressed in Schedule “A”.
It seems peculiar that the Listing Brokerage takes no responsibility for the advertising. Why not! They are the ones who drafted and came up with the incorrect information, if that’s how it turns out. Naturally, on occasion, the Seller might be the source. However, why not leave the issue where it would be, and that is the Listing Brokerage’s negligence? Why step this up to “gross negligence”? In other words, the Listing Brokerage cannot be sued for negligence, only for “gross” negligence.
A new CREA rule deals with the issue of marketing. If a Brokerage is going to use the CREA affiliation to promote its role and publicly market the property, then, it must be posted on MLS within three days. The reason is that many Brokerages might seek to “double-end” the deal. They will post everything on social media and simply say “Coming soon” to MLS, but a month passes and the Listing Brokerage double-ends the deal. This is intended to discourage that practice. In fact, another Brokerage’s client may have a higher Offer. So, the person who really loses out is the Seller.
Brian Madigan LL.B., Broker