Notices Wording in the Agreement of Purchase and Sale

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.

Where a Brokerage represents both the Seller and the Buyer (multiple representation), 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.

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.

Notices For “Customers”

Question:

Can brokerage receive notices for seller Customer, or only for seller Clients?

Answer:

The delegation of authority is set out in the standard form Agreement of Purchase and Sale. The Listing agent will have authority to give and receive Notices on behalf of the Seller, and the Buyer agent will have authority to give and receive Notices on behalf of the Buyer.

For Multiple Representation situations, this is precluded, since it would be very difficult to determine precisely when the agent holds a particular piece of information for either the Seller or the Buyer. Critically, the precise time is often very important, so this risk is simply eliminated completely.

In neither case, is the delegation of authority set out in either the Listing Agreement or the Buyer Representation Agreement.

Similarly, the Seller Customer Service Agreement and the Buyer Customer Service Agreement make no reference to the giving and receiving of notices. That’s a fairly perfunctory duty and really doesn’t involve fiduciary duties.

You will notice that fax, email, and delivery to a specified address are all quite appropriate, so this need not necessarily involve the parties personally, their respective “registrants”, or their lawyers. It simply depends upon “who”, “what” or “where” the parties pick.

Essentially, this means that there is nothing to prevent the delegation of this authority to a registrant providing “customer service” to a consumer. However, for the same reasons as above, if the registrant was providing services to both the Buyer and the Seller, then, this would not be allowed. It’s not actually “illegal”; it’s simply “unwise”.

There could be many reasons why a party would prefer their own “registrant” providing merely “customer services” to be able to step into this role, ie. they may be planning to be out of the country for several months.

The Agreement of Purchase and Sale would have to be amended accordingly. This provision should be set out in Schedule “A”.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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