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If you are dealing with a consumer accompanied by a real estate professional, you are not required to provide the Disclosure of Representation in Trading Services form.
If you are dealing with a consumer who is not accompanied by a real estate professional, you must make the Disclosure of Representation in Trading Services — even if that consumer is currently in a client relationship with a real estate professional.
Real estate professionals may host open houses or provide general factual responses to questions without providing the Disclosure of Representation in Trading Services form, unless they receive or solicit confidential information (such as the consumer’s motivations or financial qualifications) as part of these activities.
If a consumer approaches you at an open house and asks you general questions about the property, you can answer those questions.
However, if you find yourself getting into a discussion of a consumer’s motivations or financial qualifications at an open house, you should pause the discussion and provide the Disclosure of Representation in Trading Services form and, if appropriate, the Disclosure of Risks to Unrepresented Parties form, as required by the Rules.
The goal is to be as frank and up-front as possible with consumers, by proactively disclosing at the earliest opportunity that you are:
- acting for the seller, and
- obliged to share with the seller any confidential information provided to you by other consumers who are not your clients.
We’ve made wording changes on the forms, to eliminate the use of terms that were potentially confusing to some consumers. A good example is the term “unrepresented party”. Instead of using that term on the form, we’re using the term “non-client” to help consumers understand that they can receive some services from a real estate professional without being in an agency relationship, but that in that case, the real estate professional will not owe them the fiduciary duties that are owed to a client.
A QR code or Quick Response code is a machine readable bar code that contains information. You’ll note that the upper right corner of each form contains a QR code. Consumers can scan that code with their mobile phones and it will link them to the BCFSA website where they can access other consumer resources about real estate transactions.
On the second page of the form, licensees must indicate the name of their team, if any, as well as the names of all team members. This field was added in recognition of the fact that all team members share the same obligations to a client and should be disclosed. In cases where there isn’t room for all the team member’s names, licensees could choose to use the notes field, or to attach a separate page. Licensees will need to keep up to date with changes to team members, so that when new members join a team or members leave, the information they are disclosing here is accurate.
You should list all licensed team members in the appropriate form.
Acknowledging the receipt of the disclosure by initialing the form is optional. If the consumer chooses not to initial the form, you may use the notes section to document that the form was provided.
You can give factual responses to general questions posed by the unrepresented buyer about your seller client’s property without providing the Disclosure of Representation in Trading Services form and the Disclosure of Risks to Unrepresented Parties form.
If you find yourself getting into a discussion of the consumer’s motivations or financial qualifications, you should advise the unrepresented buyer that before you can continue the conversation, you are required to make certain disclosures to them.
If the unrepresented buyer is willing to provide you with an e-mail address, you can:
- e-mail copies of the Disclosure of Representation in Trading Services and the Disclosure of Risks to Unrepresented Parties forms and explain the disclosures to them
- continue your conversation once the unrepresented buyer has reviewed the disclosures and you have answered any questions about the disclosures.
Alternatively, you may wish to arrange to meet with the unrepresented buyer in person to provide copies of the Disclosure of Representation in Trading Services and the Disclosure of Risks to Unrepresented Parties forms.
You can also advise the unrepresented buyer on the phone that if they begin working with a real estate professional, you would be happy to speak with their real estate professional.
If you are speaking with a consumer who is interested in becoming your client, and you are available and interested in working with them, you may have a general conversation about:
- The types of services you could offer them;
- Agency, and the duties associated with agency;
- Important decisions for consumers;
- How you are remunerated;
- Your duty to avoid conflicts of interest; and
- Your duty to fully disclose any conflicts of interest that arise.
If you anticipate an ongoing client or non-client relationship you should provide the Disclosure of Representation in Trading Services form and answer any questions about the disclosure. The goal is to be as frank and up-front as possible with consumers.
Yes. If you are moving to an agency relationship after treating a consumer as a non-client, you must provide a further Disclosure of Representation in Trading Services form to document that you are now acting as their agent.
While the Rules restrict the practice of dual agency, they do not explicitly prohibit the practice of “double-ending” (e.g. a listing brokerage earning 100% of the commission if the buyer chooses to be unrepresented).
Working with unrepresented buyers as non-clients creates significant risks for:
- the real estate professional;
- the unrepresented buyer;
- and the real estate professional’s client.
Consider referring an unrepresented buyer to another real estate professional. This reduces the risk of misunderstandings and conflicts of interest arising in the real estate transaction.
All of the forms encourage licensees to give the completed form to the consumer, so that they retain the information. Real estate professionals still have an obligation to send a copy of the completed form to their brokerage, and it is up to them how they fulfil this obligation – they may choose for instance to take a picture of the completed form with their mobile phone, or to use the BCFSA app.