A good friend and colleague of mine, Barry Lebow posed the following questions. It is interesting to see how different agents handle these various issues. Set out below are my answers.
“Assume that you are the Listing Agent in Ontario. You have sold a home. It has not closed. Buyer has 2-3 visits remaining before closing.
1) do you have to accompany the buyer each time?
2) does a licensed registrant have to be in attendance?
3) can anyone accompany the buyers, not licensed?
4) can the Seller and Buyer just do it without anyone being there?
Before you answer, here is a second part to that question, “only a licensed person in most provinces and states can trade in real estate.” So, if the deal is done but not closed, is it still in the status of a trade?
A trade in real estate is actually a defined term under the Real Estate and Business Brokers Act, 2002:
“trade” includes a disposition or acquisition of or transaction in real estate by sale, purchase, agreement for purchase and sale, exchange, option, lease, rental or otherwise and any offer or attempt to list real estate for the purpose of such a disposition, acquisition or transaction, and any act, advertisement, conduct or negotiation, directly or indirectly, in furtherance of any disposition, acquisition, transaction, offer or attempt, and the verb “trade” has a corresponding meaning;
You will notice that there is nothing in the language which would have you stop at the time the Agreement is negotiated.
Not only does the role of the real estate agent continue until closing, it would continue to apply following closing.
Consider, for example the following. The Listing Agent of a rural property sends a water sample to the lab for analysis. Everything is presumed to be fine and the deal closes. Then, the Listing Agent receives the lab report after closing. The water is contaminated. In fact, it’s toxic. Is this deal over, just because the closing took place? Even in the absence of any undertakings, conditions or agreement, this Listing Agent has a duty to let the Buyers know.
My responses: No, Yes, No, and Yes.
Let’s look at the reasons:
Here’s my response to question 1: “do you have to accompany the buyer each time?”
In this case, “you” are the Listing Agent. It might be “nice” if you were there, but you don’t have to be. You likely weren’t there for any of the showings, so why now?
RECO will insist that a registrant is present, so you would clarify that the Buyer’s agent will be present. For some Boards, the Buyer’s representative MUST be present. For TREB, this is Rule 520.
Question: 2) does a licensed registrant have to be in attendance?
There is no specific requirement in the Act or the Code. Attendance of at least one registrant is required from RECO’s perspective to protect the property etc. The local board may have rules. TREB has Rule 520. So, if the Buyer’s rep is there or someone from their office, then, you as the Seller’s agent would not have to be there.
However, the “no attendance” authorization should be documented in writing. Anytime that it is in the “best interests” of your client, then you HAVE to be there. This might include a situation where the Seller is apt to talk and ramble on incessantly. A simple caution won’t work, so you will have to show up and any and all questions are to be “taken under advisement”. You will check with the Seller and get back to them in writing. The reason for this is quite simple. You negotiated an “Entire Agreement Clause” into the APS. It runs right up to the time of acceptance. It doesn’t cover anything said afterwards. So, your Seller should not be present answering questions, UNLESS you are there (and even then…).
Let’s deal with question: 3) can anyone accompany the buyers, not licensed?
I suppose anyone “can”, the issue, of course, is whether or not the Seller could legitimately refuse their attendance under the Agreement. If they were specifically authorized to attend, for example, the wife, brother, and sister-in-law of the Buyer, then they are covered. Also, movers, planners, building contractors etc. would have to be specifically authorized.
And, by implication, can 10 registrants, all from the Buyer’s Brokerage attend? No, one person representing the Buyer, not 10! So, if there are two Team members, write them in. However, I have never heard of a problem here. But, a third contractor’s opinion, that’s a stretch if not authorized in the Agreement.
Let’s take on question 4: “can the Seller and Buyer just do it without anyone being there?”
It be would be rather cavalier to place the importance of the real estate profession in this beyond where it should be. This is a FREE county. People can do what they want. There are only two parties to this transaction and the Brokerage(s) is (are) not one of them. The Seller and the Buyer are under no obligation or constraint whatsoever dealing directly with each, dealing with each other through their respective lawyers, or contacting one another through a mutual friend.
However, under the Act and the Code, you had better be available, if you need to protect your client’s best interests. Any issues along those lines should be documented. Email would work well. Make sure that’s it’s clear whether you are to be there or not. If something goes wrong, and it’s not in an email, then someone might later say that you were a “no show”.
While there is no Act or Code requirement there might be a Board rule. TREB for example would require a Buyer’s rep to be in attendance for the Buyer’s 3 visits.
Brian Madigan LL.B., Broker
I often attend as listing broker. I stand off to the side and am there as a backup in case further information may be required. I observe water sample collection protocols and ensure that sealed wells are not tampered with.
I would have taken water samples myself but recommend that the buyer and their representative do another to corroborate my tests. Much the same if my client had had a home inspection.