Agency and Representation
Providing High Professional Standards Before receiving a real estate licence, candidates must successfully complete and extensive course of study developed by OREA on behalf of the Government of Ontario. And that is only the beginning: in the two years after receiving their licence, the new professionals are required to successfully complete three additional courses as part of their articling with an experienced broker. There are also courses designed to upgrade agents skills and knowledge that need to be completed on an annual basis.
Realtors are governed by the legal concept of agency. It is important as a Buyer that you understand the two options available and what they entail. There are 2 different forms that may be offered to a Buyer. One is the relationship of a Buyer client and the other is that of the Buyer customer.
Under this type of representation the sales representative is representing you and your interests during the home buying process under a Buyer Representation Agreement. The representative has a fiduciary responsibility to obtain the best possible price and negotiate a deal that is favorable to the Buyer.
Under the Buyer/Client relationship the representative is able to prepare an offer that is in the best interest of the buyer. Provide to the buyer information pertaining to conditions and terms to include in the offer. Provide to the buyer information on homes sold in that particular neighborhood (or any neighborhood) that is relevant to the transaction. Recommend the price that the buyer should offer based on comparable properties. Represent and protect the buyer’s interests throughout the process including multiple offer situations.
One major difference between a client and customer relationship is that a client is owed fiduciary duties and a customer is not. These duties include:
Obedience – acting under instruction from your client in a lawful manner. Full Disclosure – disclosing to the client all information that is pertinent to the property/transaction that is in the client’s best interest.
Confidentiality – the agent must keep all key personal information confidential – it may not be conveyed to the Seller.
Accountability – the agent will safeguard all money and or property held on behalf of the client. Will report to the client all money and property paid out and if requested render an accounting. Reasonable
Care and Diligence – requires the agent to protect the client from risk and harm and when the area of expertise is not in the scope of the agent recommend someone who can advise and who is an expert in his/her field.
Undivided Loyalty – the agent must act solely in the best interest of his/her client. Must not do anything that would give an advantage to anyone other than the client that he/she is representing. As a Buyer client being represented under a Buyer Agency contract you can expect your agent to represent your best interest and to negotiate the offer on your behalf and to your advantage.
The basic idea of customer representation is that you will be provided with all the information to make your own decisions but your decisions are just that – yours. The sales representative can prepare an offer for you but will be unable to offer advice on pricing and negotiating. Anything you say to the sales representative is not said in confidence. Under this type of representation the sales representative must do what is best for the Seller.
One of the major differences between a client relationship and customer relationship is that those important fiduciary duties that we outlined above are NOT owed to a customer. As a customer you will be treated honestly, fairly and with integrity.
Fairness – explain the difference between client and customer service, proper agency disclosures that will enable customers to protect themselves. Honesty – the obligation to disclose material facts – cannot misrepresent facts or commit fraud. Integrity – conduct oneself accordingly and lawfully.
In some instances the Broker may represent both the Buyer and the Seller as clients. This is known as dual agency. In cases of dual agency it is required that both the seller and the Buyer give consent in the form of writing. The Listing Brokerage must be impartial and equally protect the interests of the Seller and the Buyer in this transaction. The Listing Broker has a duty of full disclosure to both the Seller and the Buyer, including a requirement to disclose all factual information about the property known to the Listing Brokerage.
The listing Brokerage shall not disclose:
That the Seller will or will not accept less than the listed price, unless otherwise instructed in writing by the Seller.
That the Buyer will or will not pay more than the offered price, unless otherwise instructed in writing by the Buyer.
The motivation of or personal information about the Seller or Buyer, unless otherwise instructed in writing by the party to which the information applies, or unless failure to disclose would constitute fraudulent, unlawful or unethical practice.
The price the Buyer should offer or the price the Seller should accept. The Listing Brokerage shall not disclose to the Buyer the terms of any other offer.
It is understood that fact that factual market information about comparable properties and information.