Resolution 2008-2 of the Real Estate Council of Alberta

WHEREAS,
Section 12 of the Real Estate Act, confirms the Real Estate Council of Alberta (the “Council”) has the authority to make rules prescribing or adopting standards of conduct and business standards for industry members; and,

Council passed a motion on May 7, 2008 approving a change to the rules to facilitate the implementation of designated agency and transaction brokerage practices in Alberta.

THEREFORE BE IT RESOLVED THAT:

The Rules will be amended as follows:

1(1)(n.1) “facilitation services” means services by which the interests of the buyer and seller are met in an even handed, objective and impartial manner without providing confidential advice, advocating on behalf of either the buyer or seller, or using discretion or judgment that benefits the buyer or seller to the prejudice of the other, and may include:
(i) providing real estate statistics and information on property including comparable property information available through listing services or other local databases;
(ii) providing standard form agreements of purchase and sale, lease and other relevant documents;
(iii) preparing all necessary documents in accordance with the instructions of the client(s);
(iv) providing the names of real estate appraisers, mortgage brokers, surveyors, building inspectors, lenders, insurance agents, architects, engineers and the like, but will not recommend any particular professional to the client(s);
(v) presenting in a timely manner, all offers and counter-offers to and from the client(s) regardless of whether the property is already the subject of a contract;
(vi) conveying to the client(s) in a timely manner all information that either wishes to have communicated to the other;
(vii) keeping the client(s) informed regarding the progress of the transaction; and
(viii) complying with the provisions of the Real Estate Act and its regulations and the rules and bylaws of the Real Estate Council of Alberta
   
Dual Agency
59(1) If the situation arises where a brokerage represents a seller with whom it has an agency relationship and a buyer with whom it has an agency relationship is interested in the seller’s property, in order to facilitate the purchase and sale of the property, the buyer and the seller and the brokerage may enter into a written dual agency agreement with respect to that property.
(2) The brokerage will provide both the buyer and seller with the opportunity to review the dual agency agreement and to request further information concerning the dual agency agreement and dual agency relationship described in it before signing the agreement.
(3) If the parties do not agree to enter into a dual agency agreement, unless otherwise agreed to by the parties the brokerage will continue to represent the party, be it the seller or the buyer, with whom it first entered into an agency relationship and the brokerage will offer the option either:
(a) to treat the other party as a customer; or
  (b) to recommend the other party to another brokerage.
(4) If the parties authorize the brokerage to enter into a dual agency relationship, the brokerage agreement will indicate how the brokerage will be remunerated and provide that the brokerage will:
(a) treat the interests of both the buyer and the seller in an even handed, objective and impartial manner, including but not limited to, any advice or information given to one party will be disclosed to the other;
  (b) exercise reasonable care and skill in the performance of its mandate under the agreement;
  (c) obey the instructions of the buyer or the seller insofar as they are consistent with other terms of the agreement;
  (d) perform for the buyer and the seller all necessary facilitation services, that is, services by which the interests of the buyer and seller are met in an even handed, objective and impartial manner without providing confidential advice, advocating on behalf of either the buyer or seller, or using discretion or judgment that benefits the buyer or seller to the prejudice of the other, and as required, the brokerage will:
    (i) assist the buyer and the seller in negotiating a mutually acceptable agreement;
    (ii) provide real estate statistics and information on property including all comparable property information available through the listing services or other local data bases;
    (iii) provide agreements of purchase and sale, lease or other relevant documents and act as scribe in their preparation in accordance with the instructions of the buyer or the seller;
    (iv) prepare all necessary documents in accordance with the instructions of the buyer and seller;
    (v) provide the names of real estate appraisers, mortgage brokers, surveyors, building inspectors, lenders, insurance agents, architects, engineers and the like, but the brokerage will not recommend any particular professional to the buyer or the seller;
    (vi) present in a timely manner, all offers and counter-offers to and from the buyer and seller regardless of whether the property is already the subject of a contract;
    (vii) convey to the buyer and the seller in a timely manner all information that either wishes to have communicated to the other; and
    (viii) keep the buyer and seller fully informed regarding the progress on the transaction;
  (e) disclose:
  (i) to the buyer, all material latent defects affecting the property known to the brokerage; and
  (ii) to the seller, all material facts relevant to the buyer’s ability to purchase the property known to the brokerage;
  (f) ensure that the industry member(s) registered with the brokerage providing services to the buyer and seller under the agreement:
  (i) comply with the brokerage policies and procedures governing dual agency; and
  (ii) treat the interests of both the buyer and the seller in an even handed, objective and impartial manner;
  (g) supervise the industry member(s) of the brokerage and support the staff members providing services to the buyer and seller to ensure that they properly fulfill the agreement;
  (h) hold all monies received in accordance with the provisions of the Act;
  (i) not give false or misleading information to the buyer or the seller;
  (j) not disclose without the informed written consent of the buyer or seller, as the case may be:
  (i) that the buyer may be prepared to offer a higher price or terms other than those contained in the offer to purchase or the exclusive buyer brokerage agreement;
    (ii)that the seller may be prepared to accept a lower price or terms other than those contained in the offer to purchase or the exclusive seller brokerage agreement;
    (iii) the motivation of the buyer or seller for wishing respectively to purchase or sell the property; and
    (iv) subject to clause (4)(e) above, personal information relating to the buyer or the seller and other information disclosed at any time in confidence by either to the brokerage; and
  (k) not conduct or influence the selection of:
    (i) an independent inspection of the property for the buyer and will not verify the accuracy or completeness of any information supplied or statements made by the seller concerning the property; or
    (ii) an independent inquiry into the financial status of the buyer for the seller and will not verify the accuracy or completeness of any financial information supplied by the buyer.
Transaction Brokerage for Common Law
59(1) If the situation arises where a brokerage represents a seller with whom it has an agency relationship and a buyer with whom it has an agency relationship is interested in the seller’s property, in order to facilitate the purchase and sale of the property, the buyer and the seller and the brokerage may enter into a written transaction brokerage agreement with respect to that property.
(2) The brokerage will provide both the buyer and seller with the opportunity to review the transaction brokerage agreement and to request further information concerning the transaction brokerage agreement and transaction brokerage relationship described in
it before signing the agreement.
(3) If the parties do not agree to enter into a transaction brokerage agreement, unless otherwise agreed to by the parties the brokerage will continue to represent the party, be it the seller or the buyer, with whom it first entered into an agency relationship and the brokerage will offer the option either:
(a) to treat the other party as a customer; or
  (b) to recommend the other party to another brokerage.
(4) If the parties authorize the brokerage to enter into a transaction brokerage relationship, the brokerage agreement will indicate how the brokerage will be remunerated and provide that the brokerage will:
(a) treat the interests of both the buyer and the seller in an even handed, objective and impartial manner, including but not limited to, any advice or information given to one party will be disclosed to the other;
  (b) exercise reasonable care and skill in the performance of its mandate under the agreement;
  (c) obey the instructions of the buyer and the seller insofar as they are consistent with other terms of the agreement;
  (d) perform for the buyer and the seller all necessary facilitation services, that is, services by which the interests of the buyer and seller are met in an even handed, objective and impartial manner without providing confidential advice, advocating on behalf of either the buyer or seller, or using discretion or judgment that benefits the buyer or seller to the prejudice of the other, and as required, the brokerage will:
    (i) assist the buyer and the seller in negotiating a mutually acceptable agreement;
    (ii) provide real estate statistics and information on property including all comparable property information available through the listing services or other local data bases;
    (iii) provide agreements of purchase and sale, lease or other relevant documents;
    (iv) prepare all necessary documents in accordance with the instructions of the buyer and seller;
    (v) provide the names of real estate appraisers, mortgage brokers, surveyors, building inspectors, lenders, insurance agents, architects, engineers and the like, but the brokerage will not recommend any particular professional to the buyer or the seller;
    (vi) present in a timely manner, all offers and counter-offers to and from the buyer and seller regardless of whether the property is already the subject of a contract;
    (vii) convey to the buyer and seller in a timely manner all information that either wishes to have communicated to the other; and
  (viii) keep the buyer and seller fully in formed regarding the progress on the transaction;
  (e) disclose:
  (i) to the buyer, all material latent defects affecting the property known to the brokerage; and
  (ii) to the seller, all material facts relevant to the buyer’s ability to purchase
  (f) ensure that the industry member(s) registered with the brokerage providing services to the buyer and seller under the agreement:
  (i) comply with the brokerage policies and procedures governing transaction brokerage; and
  (ii) treat the interests of both the buyer and the seller in an even handed, objective and impartial manner;
  (g) supervise the industry member(s) of the brokerage and support the staff members providing services to the buyer and seller to ensure that they properly fulfill the agreement;
  (h) hold all monies received in accordance with the provisions of the Act;
  (i) not give false or misleading information to the buyer or the seller;
  (j) not disclose without the informed written consent of the buyer or seller, as the case may be:
  (i) that the buyer may be prepared to offer a higher price or terms other than those contained in the offer to purchase or the exclusive buyer brokerage agreement;
  (ii) that the seller may be prepared to accept a lower price or terms other than those contained in the offer to purchase or the exclusive seller brokerage agreement;
  (iii) the motivation of the buyer or seller for wishing respectively to purchase or sell the property; and
  (iv) subject to clause (4)(e) above, personal information relating to the buyer or the seller and other information disclosed at any time in confidence by either to the brokerage; and
  (k) not conduct or influence the selection of:
  (i) an independent inspection of the property for the buyer and will not verify the accuracy or completeness of any information supplied or statements made by the seller concerning the property; or
  (ii) an independent inquiry into the financial status of the buyer for the seller and will not verify the accuracy or completeness of any financial information supplied by the buyer.
     
Transaction Brokerage for Designated Agency
59.1(1) If the situation arises where a brokerage representing parties in designated brokerage has appointed the same industry member to act as the designated agent for each of the buyer and seller and the buyer is interested in the seller’s property, in order to facilitate the purchase and sale of the property, the buyer and seller and the
brokerage may enter into a written transaction brokerage agreement with respect to that property.
(2) The brokerage will provide both the buyer and seller with the opportunity to review the transaction brokerage agreement and to request further information concerning the transaction brokerage agreement and transaction brokerage relationship described in it
before signing the agreement.
(3) If the parties do not agree to enter into a transaction brokerage agreement unless otherwise agreed to by the parties the brokerage will continue to represent the party, be it the buyer or the seller, with whom it first entered into an agency relationship; and the brokerage will offer the option either:
(a) to designate another member of the brokerage to represent the other party as sole agent; or
  (b) to treat the other party as a customer; or
  (c) to recommend the other party to another brokerage.
(4) If the parties authorize the brokerage to enter into a transaction brokerage relationship, the brokerage agreement will indicate how the brokerage will be remunerated and provide that:
(a) the brokerage will:
  (i) ensure that the industry member(s) registered with the brokerage providing services to the buyer and seller under the agreement:
 

(A) comply with the brokerage policies and procedures governing transaction brokerage; and

 

(B) treat the interests of both the buyer and the seller in an even handed, objective and impartial manner;

  (ii) supervise the industry member(s) of the brokerage and support the staff members providing services to the buyer and seller to ensure that they properly fulfill the agreement;
  (iii) hold all monies received in accordance with the provisions of the Act.
  (b) the designated agent now acting in the capacity of a transaction facilitator will:
  (i) treat the interests of both the buyer and the seller in an even handed, objective and impartial manner, including but not limited to, any advice or information given to one party will be disclosed to the other;
  (ii) exercise reasonable care and skill in the performance of its mandate under the agreement;
  (iii) obey the instructions of the buyer or the seller insofar as they are consistent with other terms of the agreement;
  (iv) perform for the buyer and the seller all necessary facilitation services, that is, services by which the interests of the buyer and seller are met in an even handed, objective and impartial manner without providing confidential advice, advocating on behalf of either the buyer or seller, or using discretion or judgment that benefits the buyer or seller to the prejudice of the other, and as required the brokerage will:
 

(A) assist the buyer and the seller in negotiating a mutually
acceptable agreement;

 

(B) provide real estate statistics and information on property including all comparable property information available through the listing services or other local data bases;

 

(C) provide agreements of purchase and sale, lease or other relevant documents;

 

(D) prepare all necessary documents in accordance with the
instructions of the buyer and seller;

 

(E) provide the names of real estate appraisers, mortgage brokers, surveyors, building inspectors, lenders, insurance agents, architects, engineers and the like, but the brokerage will not recommend any particular professional real estate service providers to the buyer or the seller;

 

(F) present in a timely manner, all offers and counter offers to and from the buyer and seller regardless of whether the property is already the subject of a contract;

 

(G) convey to the buyer and the seller in a timely manner all information that either wishes to have communicated to the other; and

 

(H) keep the buyer and seller fully informed regarding the progress on the transaction;

  (v) disclose
 

(A) to the buyer, all material latent defects affecting the property
known to the brokerage; and

 

(B) to the seller, all material facts relevant to the buyer’s ability to purchase the property known to the brokerage;

  (vi) not give false or misleading information to the buyer or the seller;
  (vii) not disclose without the informed written consent of the buyer or seller, as the case may be:
 

(A) that the buyer may be prepared to offer a higher price or terms other than those contained in the offer to purchase or the
exclusive buyer brokerage agreement;

 

(B) that the seller may be prepared to accept a lower price or terms other than those contained in the offer to purchase or the
exclusive seller brokerage agreement;

 

(C) the motivation of the buyer or seller for wishing respectively to purchase or sell the property; and

 

(D) subject to clause 4(b)(v) above, personal information relating to the buyer or the seller and other information disclosed at any time in confidence by either to the brokerage;

  and
  (vii) not conduct or influence the selection of:
 

(A) an independent inspection of the property for the buyer and will not verify the accuracy or completeness of any information supplied or statements made by the seller concerning the property; or

 

(B) an independent inquiry into the financial status of the buyer for the seller and will not verify the accuracy or completeness of any financial information supplied by the buyer.


Dated at Calgary this 7 day of May 2008.

 

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