Bill 5
Given the current overheated real estate environment and in the interest of better protecting buyers in a real estate transaction in Quebec, Bill 5 was passed by the National Assembly. This amendment to the Real Estate Brokerage Act will be adopted on June 10, 2022. Bill 5 involves various tax measures, but also measures related to the real estate market. It prohibits, among other things, the double agency of a real estate broker with a buyer and a seller for a residential immovable, as well as the verbal brokerage contract. These measures would then avoid a potential conflict of interest.
With the arrival of this new law, many questions arise. What exactly does this law consist of? What are the benefits for buyers? Does it have any exceptions regarding its application? What is the opinion of our team’s real estate brokers regarding this important change?
Implications
As mentioned previously, Bill 5 prohibits a real estate broker from representing a buyer and a seller at the same time in a transaction involving a residential immovable property. A real estate broker works with his client, must protect his interests and ensure loyalty. Respect for confidential customer information is essential. In a case of double agency, these obligations cannot always be fulfilled and can give rise to major conflicts of interest, hence the importance of the establishment of this law.
The real estate broker must then represent only one part of the transaction (either the buyer or the seller in the case of the sale of a property and in the case of a rental either the tenant or the lessor), thus ensuring a fairer treatment vis-à-vis the buyer.
The prohibition of double agency is also combined with the prohibition of the verbal purchase brokerage contract. In fact, a real estate broker cannot be remunerated in the absence of a written contract, whether for the purchase, sale, rental or exchange of a residential building. A written purchase brokerage contract must then be established between the buyer and the real estate broker in order to formalize the transaction.
If a case of double agency occurs, i.e. a real estate broker is bound by a sales brokerage contract and a purchase brokerage contract, he must then notify the buyer in writing as to the termination of the purchase contract. As soon as this writing is sent, the termination of the purchase contract takes effect. The broker will then have to recommend a new real estate broker to this buying client. However, the buying client can choose not to be represented by anyone and make the decision they desire for the rest of the real estate transaction. If this is the case, that is to say that the buyer no longer wishes to be represented, the real estate broker must grant him fair treatment and no compensation will be required following the termination.
Dual agency exceptions
It should be noted that the OACIQ will establish certain exceptions with regard to compliance with the law of double agency. For example, for certain regions of Quebec that would be underserved, real estate brokers in that region would be authorized to represent buyers and sellers. Additional exceptions are expected in the coming months.
Benefits for the buyer
The introduction of this law will reduce the potential conflicts of interest that can arise when a real estate broker represents a buyer and a seller at the same time.
In fact, by being represented by a real estate broker, separate from the listing broker (representing the seller), the buyer will therefore benefit from support that will defend his interests. The real estate broker will, in turn, assess the market value of the desired property in order to set a fair price. He can therefore advise the buyer a legitimate price for the value of the property as well as the necessary conditions to be included in the Promise to purchase (PA) in order to protect the buyer in the transaction.
In addition, this will provide additional protection to the buyer and will strengthen the relationship of trust and loyalty between the two parties vis-à-vis the seller.
Opinion of our real estate brokers
In general, the real estate brokers on the team find that this modification of the law on real estate brokerage will be beneficial. Indeed, it will allow the buyer to have additional freedom and better peace of mind regarding the listing broker. The notion of fairness will be further strengthened and will allow the solidification of the value of the role of the broker. In addition, the obligation to sign the residential purchase brokerage contract will protect clients, but also real estate brokers.
Despite the many benefits and advantages of this new law, there are still some ambiguities as to its application. In fact, the ambiguity is particularly found when the buyer does not wish to be represented to go directly with the seller’s broker. Additional questions remain and will be clarified as and when this law is specified and applied.
Summary
Bill 5 was adopted by the National Assembly and involves changes to the law on real estate brokerage. These changes will be in effect from June 2022. Among other measures, this new law prohibits the dual agency of a real estate broker with a buyer and a seller for a residential building. It also indicates that in order to formalize a transaction, a written brokerage purchase contract must be established between the two parties. Certain exceptions to this double agency will be granted, such as in small regions of Quebec where there is a deficit of real estate brokers. However, many questions remain about the application and respect of this law. More precise answers will be forthcoming in the coming months.
