An issue which arises on occasion is the presentation of Offers to Sellers.
What is really happening here? The property is on the market, a buyer’s representative prepares and Offer and then they just can’t get it in front of the seller. In some way, they feel that they are being blocked out by the listing agent. Their Offer is just about ready to expire and they haven’t been able to get in front of the seller. Why? Perhaps the listing agent has someone they think will submit an Offer, and they wish to hold on until their own Offer is ready.
So, what are the rules?
The buyer’s representative, is entitled to register an Offer and present it. If registration is not permitted, the listing must be suspended according with the MLS Rules of the Toronto Real Estate Board. The MLS must contain an exclusion if the buyer’s representative is not allowed to present the offer personally. Also, upon request, the buyer’s representative is entitled to see the seller’s written direction to that effect.
The Code of Ethics under the Real Estate and Business Brokers Act, 2002 will prevent direct contact with the seller assuming agency. This would not apply in non-agency situations. Most of the time a property appearing on MLS will be subject to a listing agreement which is an agency appointment.
Potential Solution: Buyer/Seller Direct Contact
It is not possible for the agent to initiate any direct contact whatsoever with the seller. Naturally, permission would be an exception.
The potential solution here is to have the buyer contact the seller directly to inquire… are you interested in my Offer…. if not… then I’ll move on…..?
The buyer is not restricted by the MLS Rules or by the Code of Ethics. It may still be something of an end run, but it might work in difficult situations.
MLS Rules
R-345
MLS® Listings appearing on TREB’s MLS® System shall be immediately available (subject to applicable legislation, the rights of and reasonable accommodation to the occupancy) for showings, inspections and registration of Offers.
In the event an existing listing becomes unavailable for showings, inspections or registration of Offers, the listing shall be suspended.
While under suspension a record of all requests by Co-operating Brokerages for showings, inspections and registration of Offers shall be kept by the Listing Brokerage.
Upon the Seller rescinding the suspension the Listing Brokerage shall immediately notify all Cooperating Brokerages who have requested showings, inspections or registration of Offers.
R-375
If the Seller directs that the Co-operating Brokerage not be in attendance during an Offer presentation, the Listing Brokerage shall indicate such requirement as an exclusion on TREB’s MLS® System and provide written direction from the Seller upon request of the Co-operating Brokerage.
R-381
The Listing Brokerage shall update TREB’s MLS® System within two (2) TREB business days following Cancellation or suspension of an MLS® Listing Agreement.
Code of Ethics
Dealings with other registrants
7. (1) A registrant who knows or ought to know that a person is a client of another registrant shall communicate information to the person for the purpose of a trade in real estate only through the other registrant, unless the other registrant has consented in writing. O. Reg. 580/05, s. 7 (1).
Those are the basic rules that effect Offers and Presentations in “normal times”.
In addition, during Covid-19, almost all personal attendances have been suspended.
Brian Madigan LL.B., Broker