There is a specific provision in the Agreement of Purchase and Sale for Notices.
Here it is:
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.”
FAX No.: __________________FAX No:____________________
(For delivery of Documents to Seller) (For delivery of Documents to Buyer)
Email Address: ___________ Email Address: ________________
(For delivery of Documents to Seller) (For delivery of Documents to Buyer)
Review of the Notices Provision
Appointments
Both the Seller and the Buyer make appointments.
“The Seller hereby appoints the Listing Brokerage as agent for the Seller for the purpose of giving and receiving notices pursuant to this Agreement.”
So, this provision is “in force” whether or not we have a Designated Representative (DR) under TRESA.
The Brokerage has certain agency obligations under this agency appointment. This doesn’t really change even if the email address of the Designated Representative is specified.
This is the Buyer appointment:
“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.”
All agreements now include “representation”. This wording was included to deal with “customer service” which is no longer permitted, save and except for such arrangements which continued under TRESA, for example, an Agreement of Purchase and Sale and a Customer Service Agreement both of which predated TRESA (1 December 2023) and still continue since we have not reached the closing date.
Restriction for Multiple Representation
The Brokerage cannot be the agent for BOTH parties at the same time.
“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.”
Restriction for Self Representation
The Brokerage cannot be the agent for BOTH parties at the same time.
“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.”
Ability to act as a “Courier”
The restriction above deals with the agency relationship in terms of giving and receiving notices. It does not affect the role of actually executing the delivery process. So, can a real estate agent pick up an envelope and transport it between one party and the other? Yes, of course, they can do that. But, the receipt or delivery took place when the actual party was involved (either transmission or reception). So, party to party with the real agent in the middle as a courier; that’s OK. There’s just no actual legal consequence associated with the real estate agent’s involvement. Yes, it could have been them, or it could have been Fed Ex.
One of the programs that would have arisen would have been the time of possession and delivery of an actual Notice. The Buyer gives it to the agent at 1:00 pm. The agent then delivers it to the Seller at 7:00 pm. For six hours the agent had it in their own possession. At what time did the Seller receive it, 1:00 pm or 7:00pm? To avoid the possibility of confusion, the agent did not pick it up at 1:00 pm on behalf of the Seller. They simply picked it up as a courier at 1:00 pm and delivered it to the Seller at 7:00 pm. So, 7:00 pm will be the time of receipt for the Seller.
Documents in Writing
There is a provision:
“Any notice relating hereto or provided for herein shall be in writing.”
What Documents?
This is the provision:
“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”)…”
Here’s the Document list:
- this offer,
- any counter-offer,
- notice of acceptance thereof
- any notice to be given or received pursuant to this Agreement
- any notice to be given or received pursuant to any Schedule hereto
Timing and Method of Delivery
Here is the provision:
“….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.”
When and How?
When and how does the delivery actually take place?
Specifically, 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.
Personal Service
By personal service that means actually upon the party to the Agreement. But, that could present a problem if you don’t really know who the other party is, or where they live or work or how you might find them. And, they could be out of the country.
Hand delivered to the Address for Service
This would be relatively straightforward. However, the actual address must be set out the Acknowledgement section. If it’s not, then, this service opportunity is not available. Also note that it said “hand delivered”, that did not say sent by regular mail.
Many times, there’s no address. That simply means that this opportunity has not been enabled. So, you might know that the Vendor resides at 123 Main Street, but unless that address has been set out in the Acknowledgement section, then this service method is not available.
Sometimes, the Vendor does not live there.
We have a much more significant situation when it comes to the Purchaser. Who are they and where do they live? And just which “John Smith” out the 4 million on the face of the earth is the “John Smith” who bought the property?
Fax
This was a good method years ago, but technology has advanced and we now have few people who still have operating fax machines or numbers.
In fact, be very reluctant to offer a fax number if your machine is not hooked up, filled with paper and ink. You might receive a fax but, your own machine never processed it.
This is one of the best methods available. Everyone has an email address and they keep up to date with the emails they send an receive. However, the caution here is don’t use an old email address that you never ever check. That doesn’t make any sense.
Acknowledgement Provision
There is an Acknowledgement provision on Page 5. It seems to have two purposes:
- Acknowledgement, and
- Appointment.
If it’s not filled out, then it can’t be used for either purpose.
Brian Madigan LL.B., Broker