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Once you determine that you are ready to sell your home, the next step is to find a real estate licensee to assist. Using a real estate licensee can protect you in a number of ways.
- They are licensed and insured.
- They are governed under the Real Estate Services Act (RESA), which requires, among other things, that they act solely in your best interest.
- They are trained to draft complex property purchase contracts to protect your interests.
- They have access to property databases and a network of other real estate licensees that can make finding the right property simpler.
- They can provide referrals to other experts such as mortgage brokers, home inspectors etc.
- Deposits and other funds can be held in a brokerage trust account protecting all parties.
- Should any issues arise, BCFSA can investigate.
Where a real estate licensee acts only for a buyer or seller of a property, they are deemed to be in a “sole agency” relationship. Under the Real Estate Services Act, which is the legislation governing the conduct of licensed real estate licensees, when an agency relationship is created, there are several duties owed by the real estate licensee (commonly referred to as an agent) to you.
In addition, there is a general obligation that all real estate licensees have to act honestly and with reasonable care and skill in performing all assigned duties. Almost all duties owed to you by your real estate licensee end once you buy your home, or you terminate your relationship with them. One duty, however, extends forever, even after you purchase your home. The duty of confidentiality.
When you enter into an agency relationship, your real estate licensee will provide you with a form called the Disclosure of Representation in Trading Services and walk you through its content.
Your real estate licensee must actively avoid any conflict of interest they can, and must disclose to you any conflict that cannot be avoided. You will then have an opportunity to work with your real estate licensee to determine how best to address the conflict.
Did you know that your real estate licensee must keep all your personal information confidential and that this duty goes on forever? Your personal information will always be kept safe by your real estate licensee and the brokerage they are licensed to except where they are required by law to share the information with law enforcement, BCFSA, or the government.
Your real estate licensee must follow all lawful instructions you give them. If you request that they do something that is contrary to law, they will explain why they are unable to fulfill that request and provide alternative solutions for you.
Your real estate licensee cannot do anything on your behalf that you have not permitted them to do, such as hiring a home inspector for you without your approval, or submitting an offer to a seller without your prior consent.
Your real estate licensee must disclose anything they discover during the course of the transaction that may impact the real estate services they are providing, or the transaction itself. This may include conflicts of interest or information they discover about a potential buyer etc. All information will be provided to you so that you can make informed decisions on how to proceed with the transaction.
Additionally, as noted above, there is a general obligation that all real estate licensees have to act honestly and with reasonable care and skill in performing all assigned duties.
Dual agency occurs any time your real estate licensee represents two clients with competing interests in a real estate transaction. Dual agency is only permitted with the consent of the clients and in limited situations. These include where the property is in a remote location, where the property is in a location which is under-served by real estate licensees, and where it would be impracticable for any of the parties to find independent representation.
Should your real estate licensee inform you that they are representing a buyer of your home, they will inform you that continuing on would constitute dual agency. If dual agency is permissible in your circumstance, your real estate licensee will provide you with a form called the Disclosure of Risks Associated with Dual Agency outlining all the risks associated with it and only when you understand all the information, you can agree, or refuse to allow your real estate licensee to move forward with modifying their relationship with you.
Where a dual agency relationship has been agreed to, because your real estate licensee must now act for two parties with competing interests, it is not possible for them to fulfill all of their duties to everyone. As a result, your real estate licensee’s duties get limited as follows:
- the brokerage and/or its designated agent must deal with the buyer and seller impartially;
- the duty of full disclosure is limited so that the brokerage or its designated agent are not required to disclose what the buyer is willing to pay for the property, what the seller is willing to sell the property for, or the motivation of either party; and
- the brokerage or its designated agent must not disclose personal information about the parties, unless authorized to do so in writing.
How dual agency is practiced may also be dictated by the type of brokerage your real estate licensee is licensed to.
Most brokerages in B.C. operate under designated agency. That means that while you are entering into a contract with the brokerage, and there is an agent(s) assigned to represent you, your information will be kept confidential from every other agent at the brokerage.
Many smaller brokerages operate under brokerage agency. It means when you enter into a service agreement with the brokerage, even though you may only be working with one or two agents there, it is assumed that all agents at the brokerage have access to your confidential information and therefore your agency relationship is with the entire brokerage and not just the one agent. The duties owed to you by your agent(s) are actually owed to you by all agents at the brokerage.
Under the designated agency model, two real estate licensees at the same brokerage can represent parties with competing interests in the same transaction without it necessarily being dual agency. Under the brokerage agency model, any time two real estate licensees at the brokerage represent parties with competing interests, it becomes dual agency.
It is important to understand what brokerage model the agent you hire works under. This may affect what happens if you want to purchase a property listed by another agent at the brokerage, or if there is another buyer represented by an agent at the brokerage competing with you for the same property. When your real estate licensee is representing clients with competing interests, and dual agency is not appropriate, they will disclose the conflict to you and provide you with some options including terminating their agency relationship with one party so they can represent the other party completely, or terminating the agency relationship with all parties if the information they have about each party makes it impossible to represent one party fairly. If they are able to represent just one party, with everyone’s consent, you will be provided with a form called the Agreement Regarding Conflict of Interest Between Clients. Just as with dual agency, all parties must agree to this change in the agency relationship.
Groups of real estate licensees sometimes act together as a team. When this occurs, the entire team is considered to be acting on your behalf as your agent. Each member of the team owes you all the duties that were discussed above.
If you are being represented by a team, members of that team are not permitted to act for any other party to the transaction other than you.
No agency occurs where a buyer or seller represents themselves in a transaction and does not want any representation from a real estate licensee. For example, this may occur when a real estate licensee already has an agency relationship with a seller, and an unrepresented buyer becomes interested in the seller’s property. In this situation, the real estate licensee’s obligations are only to the seller. To help facilitate the transaction, however, they are permitted to provide limited services to the unrepresented buyer but may not recommend or suggest a price, negotiate on the unrepresented party’s behalf, inform the unrepresented party of their client’s bottom line price point, or disclose any confidential information about their client unless otherwise authorized by the client. The real estate licensee may provide an unrepresented party with other services, such as:
- providing factual information (not advice) at the request of the unrepresented party;
- explaining real estate terms, practices, and forms;
- assisting in the screening or viewing of properties;
- preparing and presenting all offers and counter offers at the unrepresented party’s direction;
- identifying and estimating costs involved in a transaction.
If your real estate licensee becomes aware that the buyer on the other side of the transaction from you is unrepresented, they will provide them with a form advising them of the risks and recommend they get representation or legal advice.