Confirmation of Cooperation in a Multiple Representation

Need for Confidentiality

Question:

Since the Buyer’s agent is not technically signing the Confirmation of Cooperation (CCR) Form meaning that the commission section doesn’t get filled out, how would the Buyer know what their agent is getting paid? What if the Buyer Representation Agreement (BRA) is for an amount higher than the commission being paid to their agent?

Answer:

You raise an interesting point. The Buyer’s agent needs to disclose the amount of the commission that they will be receiving and the amount of any differential that they expect the Buyer to make up, in the deal.

There is room for that on the CCR Form in terms of extra space. Email is quite suitable for this purpose, but it could be easily added to the CCR.

This disclosure arises out of the fiduciary duties of disclosure and accounting, The BRA already contractually committed the Buyer if a deal were to be done. That means an “above board” deal with full disclosures and “informed consent”. Sleight of hand is not permissible.

While the disclosure needs to be made, the CCR might not be the right Form. It should be a communication made confidentially between the Buyer and the Buyer’s agent.

It could possibly be somewhat more complicated and require disclosure to the Seller as well. The Listing calls for a 5% commission with 2.5% being offered to the Co-operating Brokerage. In order to get the deal done, the Buyer’s agent rolls 4% of the total to the Buyer thereby, retaining only 1% commission, but, the Seller is paying 5%. This might be quite upsetting to the Seller who might now think that in the negotiations, their agent actually was favouring the Buyer all the time. This would compromise loyalty and would constitute a breach of fiduciary duties. So, in some cases, the Seller needs to know notwithstanding the confidentiality issue.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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