Let’s look at the clause in the Standard Listing Agreement:
9. INDEMNIFICATION AND INSURANCE: The Seller will not hold the Listing Brokerage and representatives of the Listing Brokerage responsible for any loss or damage to the Property or contents occurring during the term of this Agreement caused by the Listing Brokerage or anyone else by any means, including theft, fire or vandalism, other than by the Listing Brokerage’s gross negligence or wilful act. The Seller agrees to indemnify and save harmless the Listing Brokerage and representatives of the Listing Brokerage and any co-operating brokerage from any liability, claim, loss, cost, damage or injury, including but not limited to loss of the Commission payable under this Agreement, caused or contributed to by the breach of any warranty or representation made by the Seller in this Agreement and, if attached, the accompanying data form. The Seller warrants the Property is insured, including personal liability insurance against any claims or lawsuits resulting from bodily injury or property damage to others caused in any way on or at the Property and the Seller indemnifies the Listing Brokerage and all of its employees, representatives, salespersons and brokers (Listing Brokerage) and any co-operating brokerage and all of its employees, representatives, salespersons and brokers (co-operating brokerage) for and against any claims against the Listing Brokerage or co-operating brokerage made by anyone who attends or visits the Property.
That was somewhat difficult to read. So, let’s pull it apart:
9. INDEMNIFICATION AND INSURANCE:
The Seller will not hold the Listing Brokerage and representatives of the Listing Brokerage responsible for any loss or damage to the Property or contents occurring during the term of this Agreement
caused by the Listing Brokerage or anyone else by any means, including
theft, fire or vandalism, other than by the Listing Brokerage’s gross negligence or wilful act.
The Seller agrees to indemnify and save harmless the Listing Brokerage and representatives of the Listing Brokerage and any co-operating brokerage from any liability, claim, loss, cost, damage or injury,
including but not limited to loss of the Commission payable under this Agreement, caused or contributed to by the breach of any warranty or representation made by the Seller in this Agreement and, if attached, the accompanying data form.
The Seller warrants the Property is insured, including personal liability insurance against any claims or lawsuits resulting from bodily injury or property damage to others caused in any way on or at the Property and
the Seller indemnifies the Listing Brokerage and all of its employees, representatives, salespersons and brokers (Listing Brokerage) and any co-operating brokerage and all of its employees, representatives, salespersons and brokers (co-operating brokerage) for and against any claims against the Listing Brokerage or co-operating brokerage made by anyone who attends or visits the Property.
Review
The clause says that the Seller warrants that they have insurance but there are no specifics. Then, the remedy is “indemnification”.
The indemnification clause is somewhat awkward:
the Seller indemnifies the Listing Brokerage
- and all of its employees, representatives, salespersons and brokers (Listing Brokerage)
- and any co-operating brokerage and all of its employees, representatives, salespersons and brokers (co-operating brokerage)
for and against any claims against the Listing Brokerage or co-operating brokerage made by anyone who attends or visits the Property.
You would think that the lawsuit would also provide protection to “all of its employees, representatives, salespersons and brokers” of BOTH Brokerages. But, it doesn’t. The Brokerages are covered in the lawsuit but not the “employees, representatives, salespersons and brokers”.
In fact, there is going to have to be a real person who is actually there! Why are they not covered?
Brian Madigan LL.B., Broker