We have looked at the Attorney appointed under the Listing Agreement for the purposes of investigation and verification of information.
Is it actually enforceable?
In many situations, it would not be.
A Power of Attorney to be valid requires two witnesses subsequent to 1993. Prior to that, it only required one witness. That means that any recent Listing Agreements would likely only have one signature, or one person short.
If the Listing were to be executed electronically, that would present a problem because we really don’t have anyone who is the witness.
Subsequent to Covid-19, some changes were made and we can now have “audio-visual communication technology” meaning any electronic method of communication which allows participants to see, hear and communicate with one another in real time, and one of those witnesses must be a member of the Law Society. The execution of the document in counterparts would be sufficient.
So, most of the time we wouldn’t likely see a second witness available, let alone a member of the Law Society.
The next step is also somewhat problematic. You can’t serve as a witness and also be the recipient.
The specific wording is as follows:
“The Seller hereby appoints the Listing Brokerage or the Listing Brokerage’s authorized representative
as the Seller’s attorney”.
This naturally means that the Sales Representative or Broker getting the Listing signed, could not act as the “authorized representative of the Brokerage.
This means that most of the time the appointment of an Attorney even for limited or restricted purposes would be unenforceable:
- The document requires two witnesses,
- If executed electronically, one person must be licensed under the Law Society,
- The witness cannot also be a recipient.
But, other than that, it’s probably OK.
Brian Madigan LL.B., Broker