II. General Information
Part 5, Division 2, of the Rules identifies a number of disclosures that licensees must make.
Except for the disclosure of agency representation, all disclosures must be in writing, be separate from any agreement giving effect to a trade in real estate, and, with the exception of the disclosure of certain types of remuneration, be separate from the service agreement or any other agreement under which real estate services are provided.
(a) Disclosure of Interest in Trade
If a licensee acquires, directly or indirectly, or disposes of real estate, or if the licensee assists an associate in acquiring, directly or indirectly, or disposing of real estate, section 5-9 of the Rules requires that the licensee make a disclosure in writing to the opposite party before any agreement for the acquisition or disposition of the real estate is entered into.
Section 5-9(2) of the Rules sets out an example of an indirect acquisition. As provided in the Rules, a licensee or associate may acquire real estate indirectly by having a third party purchase real estate with the intention of reselling the real estate to the licensee or the licensee’s associate.
Under the former Real Estate Act, licensees were required to disclose to sellers when the licensee was acquiring real estate. Under RESA, the need for disclosure has been expanded to include disclosure when a licensee is disposing of real estate and disclosure when a licensee is assisting an associate in the acquisition or disposition of real estate. The need for disclosure arises whenever a licensee is disposing of real estate, regardless of whether the licensee has personally listed the property for sale. Licensees should keep in mind that disposing includes both selling and leasing.
RESA establishes that the disclosure must be in writing, be separate from a service agreement or any other agreement under which real estate services are provided, and also separate from any agreement giving effect to the trade in real estate.
A form for licensees to use has been created by the Council, entitled ‘‘Disclosure of Interest in Trade.’’ The form includes the name of the person to whom the disclosure is made, as well as the name of the associate, if any, and the licensee’s relationship to the associate. The form requires the licensee to indicate the purpose for which the licensee or the licensee’s associate is acquiring the property and, in the case of an acquisition, the amount of remuneration earned and who will receive the remuneration. If the real estate is to be resold and the licensee or associate has negotiated or is currently negotiating the resale of the real estate, the terms of the resale must be disclosed. Where the form is used in relation to the disposition of real estate, the form only requires that the licensee indicates whether the licensee or licensee’s associate is the owner or tenant of the real estate.
The licensee who has made the disclosure must promptly provide either the original or a copy of the Disclosure of Interest in Trade form to their related managing broker. At the bottom of the second page of the form there is a section entitled 'Brokerage Use Only.' This section is where the brokerage acknowledges receiving a copy of the form. Managing brokers are reminded that while such duties may be delegated to another person who the managing broker believes is qualified to perform them, that delegation does not relieve the managing broker of their ultimate responsibility for the control and conduct of the business of the brokerage. Therefore, when duties are delegated, the managing broker should regularly review the work of the person to whom the work has been delegated.
The Disclosure of Interest in Trade Form is not required to be submitted to the Council; however, a copy must be retained by the brokerage.
Section 5-7 of the Rules defines ‘‘associate’’ as follows:
‘‘associate’’ in relation to a licensee means a person who is any of the following:
(a) in the case of an individual licensee,
(i) a spouse or family partner of the licensee,
(ii) a trust or estate in which the licensee, or a spouse or family partner of the licensee, has a substantial beneficial interest or for which the licensee, spouse or family partner serves as trustee or in a similar capacity, or
(iii) a corporation, partnership, association, syndicate or unincorporated organization in respect of which the licensee, or a spouse or family partner of the licensee, holds not less than 5% of its capital or is entitled to receive not less than 5% of its profits;
(b) in the case of a brokerage that is a corporation or partnership,
(i) a director, officer or partner of the brokerage,
(ii) a shareholder of the brokerage who holds more than 10% of the voting shares of the brokerage,
(iii) a trust or estate
(A) in which the brokerage, or a director, officer or partner of the brokerage, has a substantial beneficial interest, or
(B) for which the brokerage, or a director, officer or partner of the brokerage, serves as trustee or in a similar capacity, or
(iv) a corporation, partnership, association, syndicate or unincorporated organization in respect of which the brokerage, or a director, officer or partner of the brokerage, holds not less than 5% of its capital or is entitled to receive not less than 5% of its profits;
The definition of ‘‘associate’’ is broad. In some cases, the relationship may be somewhat removed and not immediately obvious. For example, an associate of an individual licensee includes a company of which a spouse or family partner is entitled to not less than 5% of the profit. An associate of a brokerage can be a company in which a director of the brokerage is entitled to not less than 5% of the profits. Whenever a licensee assists either an individual or company that is ‘‘connected’’ in some fashion to the licensee or the brokerage, the licensee should refer to the definition of ‘‘associate’’ to determine whether a ‘‘Disclosure of Interest in Trade’’ form is required. Licensees should note that children and parents do not fall within the definition of ‘‘associate’’.
Licensees should keep in mind that acquisition and disposition includes renting. As a result, when a licensee acquires property as a tenant, disclosure must be made to the landlord except in limited circumstances. Section 5-9 of the Rules exempts a licensee from the need to make disclosure if the rental real estate that is being acquired by the licensee, or the licensee’s spouse or family partner, complies with the following provisions:
- the rental real estate is being acquired with the intention that it will be used for personal residential purposes;
- the lease is for a term not exceeding one year;
- the lease or agreement does not contain an option to purchase or a right of first refusal; and
- any provisions for renewal do not extend the total lease period beyond one year.
Additionally, when a licensee offers property for rent in circumstances where either sections 9-1 and 9-2 of the Rules do not apply (as explained above under the heading ‘‘Application of RESA’’), the licensee must also make the appropriate disclosure. For example, if a licensee offered property for rent that was owned by a company of which the licensee or the licensee’s spouse was a shareholder and entitled to not less than 5% of the profits, disclosure would be required.
Licensees should also keep in mind that the disclosure must be made before an agreement for the acquisition or disposition of the real estate is entered into. When purchasing or renting real estate, the disclosure can easily be made prior to presenting the offer. However, when selling or offering real estate for rent, it may be that an offer is received before the disclosure is made. In such cases, in order for disclosure to be effective, the licensee must provide the disclosure to the prospective buyer or tenant and allow the prospective buyer or tenant to determine whether they wish to withdraw their offer.
Licensees who are required to make disclosure when offering real estate for sale may wish to include the fact that disclosure will be required on the listing. In this way, the buyer’s agent could obtain a disclosure form from the licensee offering real estate for sale or lease prior to writing up the offer.
In addition, licensees should be aware that their Real Estate Errors and Omissions Insurance Indemnity Plan excludes coverage for licensees when they are either buying or selling real estate. The exclusion reads as follows:
“This indemnity plan does not apply to: 9. a claim relating to or arising from providing real estate services in a transaction where the Insured or the Insured’s spouse, or a firm or corporation more than 10% owned separately or in combination by the Insured and the Insured’s spouse, has or may acquire an ownership interest;”
For further clarification, especially regarding spouses owning property, licensees are directed to the policy entitled ‘‘Indemnity Plan’’, available through the Real Estate Errors and Omissions Insurance Corporation website.
To clarify that the necessary disclosure has occurred prior to entering into a Contract of Purchase and Sale, licensees are encouraged to include the following clause in the Contract of Purchase and Sale:
Buyer’s/Seller’s Acknowledgement of Licensee’s Interest in Trade Clause
The Buyer/Seller acknowledges having received and signed a disclosure of the licensee’s interest in the transaction before the making/receipt of this offer.
(b) Disclosure Of Interest in Trade- Reminder to Licensees When Disclosure is Required
[11/03/2011 The following section was added to the Professional Standards Manual]
In order to assist licensees the Council has prepared the following examples:
A licensee is representing his daughter and her husband in the purchase of their first home. The licensee is not contributing any funds towards the purchase and has no interest in the property. Children of the licensee do not fall within the definition of an associate; the licensee would therefore not be required to disclose under section 5-9 of the Rules as he was not acquiring the property directly or indirectly.
A licensee is representing his daughter and her husband in the purchase of their first home. The licensee is contributing half of the funds to purchase the property and has a one half interest in the property although his name is not being registered on title. The licensee is required to disclose to the seller pursuant to section 5-9 of the Rules as he is acquiring property indirectly through his daughter.
A licensee who is providing trading services to another licensee in the brokerage who is acquiring or disposing of real estate, does not fall within the meaning of the definition of providing real estate services to an “associate” and therefore is not required to make the disclosure as required by section 5-9 of the Rules, as long as the licensee is not purchasing the property indirectly through another licensee in his office.
A licensee is the principal shareholder of ABC Mortgage Corporation and receives more than 5% of its profits ABC is providing financing to a buyer who has purchased property. A mortgage is then registered against the property in favour of ABC.
If there is a subsequent sale of the property and the licensee, who is the principal shareholder of ABC Mortgage Corporation which holds the mortgage registered against the property, is not providing trading services to the seller and buyer of the property and has no knowledge of the sale, that licensee would not be required to make disclosure in accordance with section 5-9 of the Rules.
However, if the licensee is providing trading services to either the buyer or seller or both the licensee would have to make the disclosure as the sale includes the disposition of the legal interest held by the associate, ABC, in the property. The same licensee would also be required to disclose the potential conflict of interest as required by section 3-3(1)(j) of the Rules if the licensee was representing the buyer or seller or both and was at the same time holding a mortgage against the property either personally or through a corporation.
Note: Licensees who are members of a real estate board should be aware that the Code of Ethics to which those boards subscribe contain broader disclosure obligations concerning their personal interest in a transaction than the disclosure obligations required by the Rules. Article 11 of the Code of Ethics can be reviewed in this regard on the RealtorLink website at www.realtolink.ca.
(c) Disclosure of Representation and Relationship in Trading Services
Section 5-10 of the Rules requires that a licensee must disclose the nature of the representation that the licensee will provide and whether, if applicable, the licensee or a related licensee is or expects to provide trading services to or on behalf of another person in relation to the same trade in real estate, or whether the licensee or related licensee expects to receive remuneration from another person in relation to the same trade in real estate. The disclosure is not required to be in writing, but it must be made before providing the trading services.
(d) Disclosure of Remuneration
The Rules require that as a licensee, you must disclose all remuneration you receive or anticipate receiving from anyone other than your client. Section 5-8 of the Rules requires that the disclosure be in writing. Section 5-8(1.1) of the Rules permits remuneration from a party other than a client to be disclosed in the service agreement and/or in a record other than an agreement giving effect to a trade in real estate that is separate from the service agreement. This means that the disclosure of remuneration cannot be made, for example, in a contract of purchase and sale, because that is an agreement giving effect to a trade in real estate.
Section 5-11 of the Rules provides that the disclosure of the commission or compensation be in writing as follows:
5-11(1) This section applies if a licensee receives or anticipates receiving, directly or indirectly, remuneration, other than remuneration paid directly by a client, as a result of the licensee
(a) providing real estate services to or on behalf of the client,
(b) recommending to the client
(i) a home inspector, mortgage broker, notary public, lawyer or savings institution, or
(ii) any other person providing real estate related products or services, or
(c) recommending the client to a person referred to in paragraph (b) (i) or (ii).
(2) Subject to subsection (3), the licensee must promptly disclose to the client all remuneration paid or payable to the licensee’s related brokerage in relation to the real estate services provided, and the disclosure must include all of the following:
(a) the source of the remuneration,
(b) the amount of the remuneration or, if the amount of the remuneration is unknown, the likely amount of the remuneration or the method of calculation of the remuneration, and
(c) all other relevant facts relating to the remuneration.
(3) If trading services are provided by a licensee who has been designated to provide those services as a designated agent to or on behalf of only one party to a trade in real estate, the only remuneration that must be disclosed is the remuneration paid or payable to the licensee’s related brokerage in relation to the services provided by that licensee to or on behalf of that party, and the disclosure must be made in accordance with subsection (2).
Client Relationship Creates Disclosure Obligation
Section 5-11 of the Rules requires you, as a licensee, to disclose all remuneration you receive that is not paid directly by your client. A client is defined in the Rules as the principal who has engaged the licensee to provide real estate services to or on behalf of the principal. The definition anticipates that a principal and agent relationship exists when a licensee is engaged by a client. Fiduciary obligations arise as a result of the principal and agent relationship, including an obligation to disclose any remuneration received from someone other than the client.
If the person on whose behalf you are acting is not a client, (i.e. a customer), the requirement for disclosure of remuneration does not arise. Keep in mind that it is the nature of your relationship with your client that creates the obligation to disclose all remuneration paid for other than by the client.
Licensees must disclose the source and amount of the remuneration, or, if the amount is not known, the likely amount and method of calculation.
Section 5-11 of the Rules requires disclosure of all funds that licensees receive other than from the licensee’s client and not just the amounts received from referring the client to home inspectors, mortgage brokers, etc.
Disclosure When Acting for Buyers
[May 2015. The following section was added to the Professional Standards Manual]
As a buyer’s agent you have an obligation to disclose to your clients any remuneration that your brokerage will receive in relation to real estate services provided to the parties involved in the real estate transaction. The Rules require that licensees disclose all remuneration they anticipate receiving that is not paid directly by the client. This includes commissions, and also referral fees and any non-monetary bonuses you receive in exchange for a referral (such as gift certificates, air miles, bonus points, etc.). Remember, all remuneration must be paid to the brokerage—never to you directly.
Section 5-11 of the Rules makes it clear that the amount of remuneration that you must disclose to your client is the amount payable to the brokerage, not the amount that will eventually be paid to you, the licensee.
As well, subsection 5-11(3) specifies that when a licensee is acting as the designated agent for only one party in a transaction, the amount of remuneration that must be disclosed is the amount payable to the brokerage in relation to that client.
To assist licensees to make the required disclosures, the Council provides a Disclosure of Remuneration, Trading Services form. This form is available from the Council’s website and on Webforms. To make sure you understand how to use the form, read through the following scenarios. This information is also available in the April 2015 Report from Council newsletter.
Scenario 1: Designated Agent Acts Only for the Buyer
Joe Agent is a licensee engaged with LMN Realty Ltd. He is a Designated Agent for a buyer who is going to make an offer on Susie Seller’s home. Susie Seller, who is represented by a licensee engaged by XYZ Realty Ltd, has agreed to pay a total commission of $10,000, with $5,000 to be paid to a brokerage representing the buyer (LMN Realty Ltd.).
Q: What does Joe need to disclose to his client?
A: Joe is obliged to disclose to the buyer only the portion of the commission being paid to his brokerage: $5,000.
Scenario 2: Designated Agent Acts as Dual Agent
In this transaction, Joe Agent is the Designated Agent of both the seller and the buyer. With the consent of the seller and the buyer, Joe is acting as a Limited Dual Agent for both parties.
Q: Does this change what Joe must disclose?
A: Yes. As a Limited Dual Agent, Joe is obliged to disclose to the buyer the full amount of the commission being paid by the seller to the brokerage.
Scenario 3: Different Designated Agents from the Same Brokerage Represent Buyer and Seller Individually
In this scenario, Joe Agent of LMN Realty Ltd. is the Designated Agent of the buyer in the transaction. Larry Licensee, who is also engaged at LMN Realty Ltd., is the designated agent of the seller. As the sole agents of their respective clients, Joe and Larry are not acting as Limited Dual Agents.
Q: Does Joe need to disclose the full amount of the remuneration payable to LMN Realty Ltd.?
A: No. Joe is acting as Designated Agent only for the buyer, therefore he is obliged to disclose to the buyer only the portion of the commission being paid by the seller to LMN Realty Ltd. in relation to his services.
Scenario 4: Disclosure of a Referral Fee
Mary Chow has just sold her home in Burnaby. Her home was listed for sale with LMN Realty Ltd. and Joe Agent was her Designated Agent. Mary now wants to buy a strata lot in Kelowna. She asks Joe if he can recommend a licensee in Kelowna. Joe and Mary discuss three potential licensees, and Mary says she thinks she would like to work with Dave of XYZ Realty Ltd. Joe has an arrangement with Dave: if Joe refers a client to Dave who subsequently sells or buys real estate through Dave, Dave will pay Joe a $1500 referral fee that will be paid to LMN Realty Ltd. on completion of the trade.
Q: Must Joe disclose this fact to Mary when he recommends Dave?
A: Yes. Mary is a client, Joe refers Mary to Dave, and Joe anticipates receiving $1500 if Mary uses the services of Dave and XYZ Realty Ltd. to purchase a strata lot. The following example shows the proper way for this to be disclosed to Mary using Part C of the Disclosure of Remuneration Trading Services form. The disclosure must take place at the time Joe makes the referral to Mary, so she is aware of the information when she is deciding whether to use Dave’s services.
Scenario 5: Disclosure of a Non-Monetary Bonus
Joe Agent has been approached by Best Rate Financial Services, a lending institution. They are willing to pay Joe 100,000 air mile points for every client’s name that Joe provides to them who subsequently borrows a minimum of $200,000. Joe is working with a buyer who is going to need to borrow $250,000 to complete a purchase, and with the buyer’s approval Joe gives the buyer’s name to his contact at Best Rate Financial Services. That person contacts Joe’s client and this leads to his client borrowing $250,000 from Best Rate Financial Services.
Q: Must Joe disclose this referral arrangement to his client?
A: Yes. Joe must disclose any form of remuneration that he anticipates receiving as a result of referring a real estate related service provider to his client. The definition of remuneration is very broad and includes any form of benefit, regardless of its size or nature.
The disclosure must be made when the information can be used by the client to make an informed decision about whether he or she wants to use the referred service provider. The following example shows how proper disclosure should be made, using Part C of the Disclosure of Remuneration Trading Services form. Note that Joe properly discloses that the travel points are going to be “paid” to LMN Realty Ltd., Joe’s related brokerage.
All forms of remuneration must be paid to the brokerage for disbursement to the individual licensee.
(e) Disclosure of Benefits Related to Rental Property or Strata Management Services
Under section 5-12 of the Rules, licensees engaged in rental property management or strata management must disclose to the licensee’s principal, and to the related brokerage, certain benefits that the rental property manager or strata manager anticipates receiving as a result of the management of the rental property or the strata corporation. The disclosure must be made before the benefit is accepted.
Disclosure is required if the rental property manager or the strata manager anticipates receiving, either directly or indirectly, a benefit from expenditures made by or on behalf of a principal to whom the rental property or strata management services are provided. Disclosure must also be made if it is anticipated that an associate of the licensee will receive a benefit as a result of an expenditure on behalf of the principal.
A benefit from an expenditure may be an administration fee that the manager charges each time the manager writes a cheque on behalf of his or her principal. A benefit would also arise, and must be disclosed, if the manager retained a person or corporation that meets the definition of ‘‘associate’’, to perform services for the principal. Thus, for example, if a manager engaged a company in which the manager, or his or her spouse or family partner owned not less than 5% of the capital to perform work for the principal, the manager would be required to disclose the benefit to the principal and to the related brokerage before the associated company was engaged.
The disclosure of a benefit must be in writing and must be separate from the service agreement or any other agreement under which real estate services are provided. This means that it is not sufficient for a rental property manager or strata manager to include reference to an administration fee, or to the fact that an associated company will provide services to the property owner or strata corporation in the service agreement. Where a benefit is to be received from an expenditure, the disclosure must be in a separate written document.
The Council has prepared a ‘‘Disclosure of Benefits’’ form that may be used to disclose such benefits. Again, however, licensees are free to use whatever form they choose so long as it satisfies the disclosure requirements.
(f) Disclosure of Management of Rental Real Estate
Where a licensee provides rental property management services in relation to real estate owned by the licensee, section 9-1 of the Rules requires that the licensee disclose in writing to prospective tenants as noted above under ‘‘Application of RESA’’, and to the licensee’s managing broker that the licensee will be providing rental property management services on the licensee’s own behalf.
If a licensee is the sole shareholder of a corporation that owns rental real estate and the licensee provides rental property management services to the corporation, the licensee must also provide written disclosure to the licensee’s managing broker that the licensee will be providing rental property management services to or on behalf of the corporation.
In cases where a licensee is providing rental property management services to a spouse, family partner, son, daughter, parent, partnership, or corporation that includes such family members as partners or shareholders, the licensee must make written disclosure to the family member, partnership, or corporation as noted above under the heading ‘‘Application of RESA’’ and must provide a copy of the written disclosure to the licensee’s managing broker.
(g) Disclosure of Strata Management Services
As noted above under the heading ‘‘Application of RESA’’, licensees are permitted by section 9-3 of the Rules to provide strata management services to not more than two strata corporations in which they own a strata lot without the need to comply with the requirements of RESA, the Regulations, and the Rules under limited circumstances. Whenever a licensee provides such strata management services, the licensee must make written disclosure of various matters to the strata corporation. A copy of the written disclosure must also be provided to the licensee’s managing broker.
(h) Licensees Must Give Notice of Discipline, Bankruptcy, Criminal Proceedings
Section 2-21 of the Rules states that:
(2) A licensee must promptly notify the council, in writing, if any of the following circumstances apply:
(a) the licensee is subject to any disciplinary or regulatory proceedings in which the licensee may be or has been made subject to a discipline sanction under legislation in British Columbia or another jurisdiction regulating
(i) real estate, insurance or securities activities, or
(ii) mortgage brokers, accountants, notaries or lawyers;
(b) the licensee has any court order or judgment made against the licensee in relation to
(i) real estate services,
(ii) a dealing in insurance, mortgages or securities, or
(iii) misappropriation, fraud or breach of trust;
(c) any business that the licensee owns, or of which the licensee has been a director, officer or partner at any time during the past 2 years, has any court order or judgment made against the business in relation to
(i) real estate services,
(ii) a dealing in insurance, mortgages or securities, or
(iii) misappropriation, fraud or breach of trust;
(d) the licensee is charged with or convicted of an offence under a federal or provincial enactment or under a law of any foreign jurisdiction, excluding
(i) highway traffic offences resulting only in monetary fines or demerit points, or both, and
(ii) charges initiated by a violation ticket as defined in the Offence Act or by a ticket as defined in the Contraventions Act (Canada);
(e) the licensee is the subject of any bankruptcy, insolvency or receivership proceedings, including
(i) an application for a bankruptcy order filed against the licensee,
(ii) an assignment in bankruptcy made by the licensee,
(iii) a bankruptcy order made against the licensee,
(iv) a proposal made under Division I of Part III, or a consumer proposal made under Division II of Part III, of the Bankruptcy and Insolvency Act, or
(v) an insolvency proceeding, including a receivership or an arrangement under the Companies’ Creditors Arrangement Act;
(f) any business that the licensee owns, or of which the licensee has been a director, officer or partner at any time during the past 2 years, is the subject of any bankruptcy, insolvency or receivership proceedings, including
(i) an application for a bankruptcy order filed against the business,
(ii) an assignment in bankruptcy made by the business,
(iii) a bankruptcy order made against the business,
(iv) a proposal made under Division I of Part III, or a consumer proposal made under Division II of Part III, of the Bankruptcy and Insolvency Act, or
(v) an insolvency proceeding, including a receivership or an arrangement under the Companies’ Creditors Arrangement Act.
(3) In addition to providing a written notice, the licensee must provide
(a) particulars, and
(b) any additional information or documentation,
as requested by the council.
(4) In the case of notice required to be provided by an associate broker or representative, the licensee must give a copy of the notice under subsection (2) to the managing broker of the related brokerage.
Licensees must not wait for either licence renewal or licence transfer to report this information to the Council.