Real Estate Rules: Amendments Effective June 15, 2018

Note: The Real Estate Services Rule numbers have been updated as of August 1, 2021. The Rules listed in this document reflect the Rule numbers at the time this article was written.

Included below are the changes made to the Real Estate Rules by the Superintendent of Real Estate that will come into effect on June 15, 2018. Rule amendments were published in November 2017 and in April 2018, and are presented below in order by section. The date of each amendment, and the effective date, is included.

The Rules made under the Real Estate Services Act, S.B.C 2004, c. 42, by Minister’s Order M41712004, are amended in section 1-1 by adding the following definitions:

Definitions

cooperating brokerage means a brokerage that provides trading services to or on behalf of a buyer in respect of a trade in real estate;

designated agent means one or more licensees designated by the licensee’s or licensees’ related brokerage as the exclusive licensee or licensees, of all of the licensees related to that brokerage, to provide real estate services to a client of the brokerage in respect of a trade in real estate;

dual agency means the representation, in respect of a trade in real estate, by the brokerage of the following:

1. both the seller and the buyer as clients;
2. both the lessor and the lessee as clients;
3. both the assignor and the assignee as clients;
4. 2 or more buyers, lessees or assignees, as the case may be, as clients who have conflicting interests in respect of the trade in real estate;

listing brokerage means a brokerage that provides trading services to or on behalf of a seller in respect of a trade in real estate;

unrepresented party means, in respect of a trade in real estate, a party to the trade in real estate who is not a client of a licensee for the trade in real estate.

[11/15/2017 definitions added, effective 06/15/2018]

The following section is added:

Administrative penalties

2-23

For the purposes of section 56 (1) [contraventions that may be subject to administrative penalties] of the Act, contraventions of the following rules are designated as contraventions to which Division 5 [Administrative Penalties] of Part 4 of the Act applies:

1. Rule 2-17 [mailing address for delivery];
2. Rule 2-19 [licensee must reply promptly to council];
3. Rule 2-20 [brokerage must give immediate notice respecting solvency];
4. Rule 2-21 [licensee must give notice of discipline, bankruptcy or criminal proceedings];
5. Rule 2-22 [brokerage must give notice of business changes];
6. Rule 3-1 (3) [managing broker responsibilities], except as it relates to the maintenance of trust accounts;
7. Rule 4-1 [display and keeping of licences];
8. Rule 4-2 [business signs required];
9. Rule 4-3 [restrictions relating to home and other personal offices];
10. Rule 4-5 [licensee names must be indicated];
11. Rule 4-6 [restrictions and requirements related to advertising generally];
12. Rule 4-8 [advertising in relation to specific real estate];
13. Rule 7-7 [annual financial statements, accountant’s report and brokerage activity report];
14. Rule 8-1 [financial records];
15. Rule 8-2 [trust account and general account records];
16. Rule 8-3 [pooled trust account records];
17. Rule 8-3.1 [preparation of records after termination];
18. Rule 8-4 [general records];
19. Rule 8-5 [trading records];
20. Rule 8-6 [rental property management records];
21. Rule 8-7.1 [strata management records];
22. Rule 8-9 [records must be kept up to date];
23. Rule 8-9.1 [electronic records];
24. Rule 8-10 [retention of records];
25. Rule 8-11 [brokerage obligations when winding up business].

[11/15/2017 section 2-23 added, effective 06/15/2018]

Section 3-3.1 (2) (b) is amended by striking out “section 5-10 (a) [disclosure of representation and relationship in trading services]” and substituting “section 5-10 (1) [disclosure of representation in trading services]”.

Modification of duties

1. An agreement under subsection (1) must either be
   • (a) in a written service agreement, or
   • (b) if there is no written service agreement, preceded by written disclosure made pursuant to section 5-10 (1) [disclosure of representation in trading services] of these rules.
2. if there is no written service agreement, preceded by written disclosure made pursuant to section 5-10 (1) [disclosure of representation in trading services] of these rules.

[11/15/2017 section 3-3.1 (2) (b) amended effective 06/15/2018]

Section 3-3.2 is amended

1. by repealing subsection (1), and
2. in subsection (3) (b) by striking out “section 5-10 (a) [disclosure of representation and relationship in trading services]” and substituting “section 5-10 (1) [disclosure of representation in trading services]”.

Designated agency

3-3.2

1. repealed.
2. By agreement between the brokerage and the client, the brokerage may designate one or more licensees to provide real estate services to or on behalf of a client as a designated agent, and in such a case, the duties referred to in section 3-3

…

1. An agreement under subsection (2) must either be
   • (a) in a written service agreement, or
   • (b) if there is no written service agreement, preceded by written disclosure made pursuant to section 5-10 (1) [disclosure of representation in trading services] of these rules.

[11/15/2017 subsection 3-3.2 (1) repealed, subsection 3-3.2 (3) (b) amended effective 06/15/2018]

Section 5-1 (4) is amended by adding the following paragraph:

Written service agreements required in some cases

(f.1) in the case of a service agreement for trading services that provides for a portion of remuneration to be paid by a listing brokerage to a cooperating brokerage, the following information:

1. if there is a cooperating brokerage,
   • (a) the remuneration to be paid by the seller to the listing brokerage,
   • (b) the remuneration to be paid by the listing brokerage to the cooperating brokerage, and
   • (c) the remuneration to be retained by the listing brokerage;
2. if there is no cooperating brokerage, the remuneration to be paid by the seller and to be retained by the listing brokerage.

[11/15/2017 subsection (4)(f.1) added effective 06/15/2018]

Section 5-8 (1)(a) is amended by striking out “except for disclosure under section 5-10 (b) [disclosure of representation and relationship in trading services] of these rules,”.

Disclosures under this Division

5-8

1. Disclosures under this Division must
   1. be in writing, and

[11/15/2017 subsection (5-8)(1) (a) amended effective 06/15/2018]

Section 5-10 is repealed and the following substituted:

Disclosure of representation in trading services

5-10

1. Before providing trading services to or on behalf of a party to a trade in real estate, a licensee must disclose whether or not the licensee will provide representation to the party as a client.
2. A disclosure made under subsection (1) must be in a form approved by the council and include the following information:
   • (a) the duties and responsibilities of licensees to clients and unrepresented parties;
   • (b) how to file a complaint about a licensee’s conduct.
3. Unless a licensee solicits or receives information from a party about the party’s motivation, financial qualifications or needs in respect of real estate, a disclosure is not required under subsection (1) when the licensee is only
   • (a) hosting an advertised open house, or
   • (b) providing factual responses to general questions from the party.

[11/15/2017 section repealed and above substituted, effective 06/15/2018]

Disclosure of risks to unrepresented parties

5-10.1

A licensee who makes a disclosure under section 5-10 (1) to an unrepresented party in respect of a trade in real estate while representing a client to that trade in real estate must also disclose, in a form approved by the council,

1. the risks to an unrepresented party of receiving assistance from the licensee due to the licensee’s duties and responsibilities to the client of the licensee,
2. the limited assistance that the licensee may provide to the unrepresented party, and
3. a recommendation that the unrepresented party seek independent professional advice in respect of the trade in real estate.

[11/15/2017 section added, effective 06/15/2018

The following section is added:

Disclosure to sellers of expected remuneration

5-11.1

1. When an offer to acquire real estate is presented to a seller by the seller’s licensee, a licensee who is providing trading services to or on behalf of the seller must make a disclosure to the seller in accordance with this section.
2. The disclosure under subsection (1) must be in a form approved by the council and include the following information:
   • (a) the remuneration to be paid by the seller to the listing brokerage;
   • (b) the remuneration to be paid by the listing brokerage to the cooperating brokerage, if applicable;
   • (c) the remuneration to be retained by the listing brokerage;
   • (d) any remuneration a licensee receives or anticipates receiving under section 5-11 (1) (a).

[11/15/2017 section added, effective 06/15/2018]

The following subsection is added to section 5-11.1:

1. If the remuneration under subsection (2) is to be received as money, the remuneration must be expressed as a dollar amount.

[04/25/2018 subsection added effective 06/15/2018]

The following division is added to Part 5:

Division 4 – Dual Agency

Restriction on dual agency in trading services

5-16

1. A brokerage must not engage in dual agency.
2. The designation of one or more licensees as a designated agent does not constitute dual agency under this section unless the licensee designated as the designated agent represents the parties referred to in paragraph (a), (b), (c) or (d) of the definition of “dual agency” as clients in respect of a trade in real estate.

Dual agency in under-served remote location

5-17

1. Despite section 5-16, a brokerage may engage in dual agency in respect of a trade in real estate if the real estate is in a remote location that is under-served by licensees and where it is impracticable for the parties to be provided trading services by different licensees.
2. Before providing any trading services that constitute dual agency, a licensee must
   • (a) make a disclosure to each party, in a form approved by the council, that includes
     • (i) a statement of the brokerage, signed by the managing broker, clearly setting out the reasons why subsection (1) applies, and
     • (ii) the following terms and information:
       • (A) (A) the duties and responsibilities of the licensee to the clients of the licensee in a dual agency relationship;
       • (B) (B) the risks associated with a dual agency relationship, and
   • (b) enter into a written agreement of dual agency with each party under section 3-3.1 [modification of duties] after making a disclosure under paragraph (a).
3. A brokerage must provide the council with the disclosure made under subsection (2) (a) promptly after entering into a written agreement of dual agency under subsection (2) (b).

[11/15/2017 Division 4 added effective 06/15/2018]

The following section is added to Division 4 of Part 5:

Addressing conflicts of interest when acting for multiple clients

5-18

1. If the provision of trading services by a licensee to or on behalf of multiple clients in respect of a trade in real estate would constitute dual agency, other than under section 5-17 [dual agency in under-served remote location], the licensee must either:
   • (a) not provide trading services to any client in respect of that trade in real estate, or
   • (b) represent only one of the clients, as a client, in respect of that trade in real estate.
2. A licensee must not represent a client under subsection 1 (b) unless the licensee has obtained written agreement from all clients in respect of the trade in real estate that meets the requirements of subsection (3).
3. The written agreement referred to in subsection (2) must be in a form approved by the council and must include all of the following information:
   • (a) a description of the conflict of interest;
   • (b) a description of the duties and responsibilities the licensee will no longer have to the client with whom the licensee is terminating its client representation;
   • (c) a statement that the licensee may have confidential information about the client with whom the licensee is terminating its client representation, and that the licensee is prohibited from disclosing any of that information;
   • (d) a statement that the advice and information that the licensee may provide to the client that the licensee will continue to represent may be limited due to the licensee’s ongoing duty to maintain the confidentiality of the information of the client with whom the licensee will terminate its client representation; and
   • (e) a recommendation that the clients seek independent professional advice in respect of that trade in real estate.

[04/25/2018 section added effective 06/15/2018]

Published on May 08, 2018