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TRUST IN REAL ESTATE SERVICES ACT (TRESA)

The Trust in Real Estate Services Act (TRESA) is consumer protection legislation governing the conduct of real estate agents and brokerages trading in real estate in the province of Ontario.

Brokerage Policy on Representation

Sutton Group - Admiral Realty Inc. has adopted Designated Representation effective December 1, 2023.

 

A. The designated representative will be identified in the agreement and is responsible for representing the best interests of the client. Where two or more agents (or a "team" of agents) routinely share confidential client information, each of the agents must be identified as designated representatives under the agreement.

 

The brokerage, and other agents employed by the brokerage, must treat the client in an objective and impartial manner.

 

The designated representative is prohibited from sharing confidential client information. All designated representatives named in the agreement are bound by the same duties, regardless of whether or not they are providing services to the client. Confidential client information includes, but is not limited to, client’s motivation to buy or sell, the minimum amount a seller will accept, or the maximum amount a buyer can afford.

 

B. When the brokerage has multiple clients in the same trade, but each client is represented by a different designated representative, the designated representatives are able to continue to actively represent the interests of their respective clients. This is not multiple representation, and no disclosure or consent is required.

 

Further, in these circumstances, the brokerage (including owners, managers, broker of record) will:

 

  • remain neutral;

  • not give advice to either designated representative that may be detrimental to the client of the other designated representative;

  • not have access to or allow the designated representative to share any confidential client information with the brokerage.

 

C. Under designated representation, multiple representation will arise in the following two circumstances:

 

  • The same agent (or "team" of agents) is the designated representative for a seller client and a buyer client in the same trade; or

 

  • The same agent (or "team" of agents) is the designated representative for more than one competing buyer in the same trade, even if the property is listed by a different brokerage.

 

D. In the event of multiple offers, if a brokerage has a seller client and a buyer client in the same trade, the brokerage must disclose this fact to every other buyer who makes a written offer. The disclosure must be made as soon as possible after an offer is received, and before any offer is accepted by the seller.

 

  • This is not a disclosure of multiple representation — it is a disclosure that the brokerage has a seller client and buyer client in the same trade. This disclosure requirement applies even when the seller and buyer are represented by different designated representatives.

  • The written disclosure should be provided to the prospective buyer’s agent, if there is one, and otherwise to the buyer directly.

 

The brokerage will only engage in brokerage representation with written consent of the broker of record.

Contracts Prior to Dec 1, 2023

There is a 120-day transition period for existing agreements. If existing agreements are in place on Dec. 1, they can continue until the earlier of :

 

  • Expiry Date; or

  • March 30

 

So, if there is an agreement with an expiry of Feb. 15, that is the expiry date. However, if the expiry date on the written agreement is June 1, it expires March 30.

OREA Tresa Explained Video

RECO Introduction to TRESA Course

This new Continuing Education (CE) course provides a comprehensive overview of Phase 2 legislative reforms and focuses on how the changes will impact the day-to-day activities of real estate agents and their interactions with buyers and sellers.

 

For 2024 renewal registrants: Completion of this course will fulfill your 2024 Update Course requirements, even when taken in advance.

RECO Information Guide

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The RECO Information Guide must be given to a buyer or seller before services or assistance are provided. The guide contains information that prospective clients and self-represented parties should be aware of before entering an agreement with a brokerage or receiving any services or assistance from a real estate agent.

 

Real estate agents are required to maintain their own records verifying the guide and forms were provided, explained, and any acknowledgements received from a buyer or seller.

How to use the online tool:

  1. Go to www.recoinfoguide.ca to access the online tool.

  2. Select the button to share either the RECO Information Guide or the appropriate Information and Disclosure to Self-represented Party form.

  3. Fill in the required information and contact details for the consumer you want to share the guide or form with, and then click the share button.

  4. After you click the share button, you will receive an email confirmation that the guide or form was shared, and the consumer will receive an email with a unique link to view the guide or form. You should confirm with the consumer that they received the email, in case you entered the wrong email address or that it was directed to their “junk” folder by mistake.

  5. The consumer will receive the guide and/or form that includes an acknowledgement section. The consumer acknowledgement is voluntary.

  6. Explain the guide or the form to the consumer.

  7. If the consumer makes the acknowledgement, an email confirmation of the acknowledgement will be sent to the consumer and the agent.

Designated Representation Agreements

Service to be provided by the Designated Representative must be clearly documented, in a comprehensible manner such as a Schedule A to the agreement.

 

Use Schedule A to Listing Agreement Form 203 or Schedule A to Buyer Representation Agreement Form 303 and include:

 

  • standard clauses (clauses provided below);

  • additional designated representative (clause provided below);

  • remuneration (breakdown provided below for Listing Agreement);

  • early termination policy (if any);

  • your unique services (advertising, home prep, showings, offer preparation & negotiations, etc)

 

This applies to all Seller and Buyer representation agreements.

 

TRESA mandates that the agreement must clearly identify:



  • specific duties of the brokerage and designated representative (included below as standard clauses);

  • Any terms related to termination, including rights and obligations;

  • The services that the designated representative(s) will provide under the agreement (may be for a broad range of services, or it may be limited to a specific service, such as drafting an offer or showing a property);

  • Any circumstances in which the amounts of remuneration payable might change and, for each circumstance, an explanation of how the amount might change and an indication of whether one or more brokerages may receive remuneration (included below as Remuneration sample).

Schedule A - Standard Clauses

These 2 clauses must be standard in your Schedule A for buyer and seller:

 

The brokerage is not providing representation to the client. The brokerage will:

  • protect each client’s confidential information, including ensuring that a designated representative does not disclose any confidential information of the designated representative’s client to any other agent employed by the brokerage or other person, unless the disclosure is authorized by the client or required by law;

  • treat the interests of all the brokerage’s clients that have entered into designated representation agreements in an objective and impartial manner;

  • supervise every designated representative to ensure they fulfill their duties under the designated representation agreement; and

  • in the event that a designated representative is not able to represent a client, designate a different agent employed by the brokerage to be the designated representative for the client if the client so agrees.

 

The designated representative will:

  • protect and promote the best interests of the client;

  • keep the client advised of all significant steps taken in the course of representing them; and

  • protect the confidential information of every client represented by the designated representative, including by not disclosing a client’s confidential information to any other agent employed by the same brokerage or any other person, unless the disclosure is authorized by the client or required by law.

 

Additional Recommended Clause

 

In addition to the Designated Representative(s) indicated on Page 1 of this agreement, the following individual(s) are also designated to provide services and representation to the client: Agent Name/REALTOR, Agent Name/Broker, etc.

Schedule A - Other Services

These are examples of items you might address in your individual Schedule A's (not limited to):

 

Additional Designated Representative(s)

  • YOU NEED TO IDENTIFY ANOTHER AGENT THAT IS AVAILABLE TO PROVIDE REPRESENTATION IN YOUR ABSENCE (ILLNESS, VACATION, ETC)

  • Teams and Partnerships should identify all members or partners as part of every Schedule A

 

NOTE: The Brokerage or Agent cannot appoint a new designated representative at a later date unless the client agrees.

 

Advertising

  • MLS, photos, video, open houses, websites, VOW, social media, print, direct mail, unaddressed mail

 

Home Preparation

  • Cleaning, staging, pre home inspection

 

Showings & Inspections

  • Will you be present?

  • How will this be facilitated? Brokerbay/text message confirmation?

  • Lockbox (manual or electronic)

  • Follow-Up

 

Showings & Inspections

  • identify properties that fit buyer's criteria for consideration

  • arrange properties showings

  • attend home inspection upon successful offer to purchase

 

Offers

  • draft, present, negotiate offer on client's behalf

 

Financing

  • communicate with financial advisor

Schedule A - Early Termination Policy

If you decide to include a Terminated Policy in your Agreement it must include:

 

  • notice required to terminate;

  • fee payable (if any) to terminate;

  • if client declines multiple representation - terminate or assign new designated representative?; and

  • holdover clause survives termination.

Implied Representation

Implied representation can arise when agents begin providing services, opinions, or advice to any person without a written agreement in place.

 

Whether at an open house or meeting with a buyer or seller who is considering engaging your services, you must be cautious that you do not provide services, opinions, or advice without first clarifying your relationship with the buyer/seller. This includes advising potential sellers what their home may be worth or soliciting confidential information from a consumer about their motivation to buy or sell a property.

 

Agents are permitted to provide information to any person, including prospective clients or self-represented parties. Here are some examples:

 

  • A consumer calls you about a listing and asks questions that require factual answers (number of bedrooms, square footage, when it was built). Answering these questions about the property is providing information.

  • You are holding an open house and provide feature sheets about the property to each person who views the property. This is providing information.

  • You are speaking at an event about tips for buyers and sellers and answer questions from the audience. This is providing information. You are not creating implied representation agreements with the people attending the session.

Self Represented Party (SRP)

A self-represented party, with respect to a trade in real estate, is a person who is not a client of a brokerage. A self-represented party is, as the term indicates, representing their own interests in the trade and is not receiving any services under an agreement with a brokerage.

 

The RECO Information Guide and the Information and Disclosure to Self-represented Party form must be provided before an agent provides any assistance to a self-represented party.

 

The only assistance the seller’s agent might provide to a self-represented buyer will be to benefit the seller. The self-represented buyer will have to navigate the transaction on their own, including the purchase price and any protective clauses to be included in an offer.

 

The only assistance the buyer's agent might provide to a self-represented seller will be to benefit the buyer. The self-represented seller will have to navigate the transaction on their own, including the purchase price and any protective clauses to be included in an offer.



When considering what assistance is permitted, agents are advised to ask themselves these questions:

  • Is the assistance a service to or incidental to a service to my client and consistent with my client’s instructions?

  • Is the assistance in the best interests of my client?

  • Is the assistance free from any opinions or advice to the self-represented party?

  • Can I provide the assistance without encouraging the self-represented party to rely on my knowledge, skill, or judgment in respect of the trade?

 

Remuneration can only be paid to a RECO licensed real estate brokerage (agent).

Confidentiality

A designated representative does not disclose any confidential information of the designated representative’s client to any other agent employed by the brokerage or other person, unless the disclosure is authorized by the client or required by law.

 

The brokerage requires access to confidential client information in order to fulfil its duty under the legislation to ensure the designated representative’s duties are fulfilled under the designated representation agreement. The brokerage continues to have access to client information that is necessary for the creation and administration of the designated representation agreement between the brokerage and the client.

Multiple Representation

Under designated representation, multiple representation only arises when:



  • The same agent is the designated representative for a seller client and a buyer client in the same trade.

  • The same agent is the designated representative for more than one competing buyer in the same trade.

 

The designated representative must treat the interests of their multiple clients in an objective and impartial manner.

 

As soon as an agent is aware that they have more than one client in the same trade, they must make full disclosure to each of the clients involved. The agent can’t take any further steps on behalf of any of the clients until the disclosure is made and each of the clients involved provide their written consent.

 

Seller Multiple Representation Acknowledgement and Consent Form 325

Buyer Multiple Representation Acknowledgment and Consent Form 326

 

Disclosure and consent at the time an offer is submitted is, in almost all circumstances, too late.

Competing (Multiple) Offers

The following disclosures must be made to every person who is making one of the offers:

 

  • the number of competing offers;

  • If a brokerage has a seller client and a buyer client in the same trade - this is not a disclosure of multiple representation — it is a disclosure that the brokerage has a seller client and buyer client in the same trade. This disclosure requirement applies even when the seller and buyer are represented by different designated representatives. It does not apply when a brokerage has multiple buyer clients in a trade.

  • multiple representation; and

  • any commission reduction (the set amount or %) in any offer.

 

Use Brokerage Communication Form 652 to disclose Competing Offers, Multiple Representation, Agreements Relating to Commission/Remuneration

 

Agents must make best efforts to obtain a written acknowledgement from every other buyer that the required disclosure has been made and, if an acknowledgement is received, provide a copy of the acknowledgment to the buyer.

 

A verbal offer is not a competing offer under the legislation.

 

An offer that has not yet been submitted is not a competing offer.

Disclosing Offer Contents

TRESA permits an agent to follow the seller’s written direction to share all or select parts of the content of offers.

 

These are the requirements:

 

  • The number of competing offers must be communicated to every person who is making one of the offers.

  • If the seller directs in writing, the content of competing offers, or select parts of the content, must be shared with every person who is making one of the offers.

  • Personal information or any information that would identify the person making an offer must not be shared.

 

There are no rules regarding how or when a seller’s decision to share the content of offers is to be communicated to potential buyers who might submit an offer. There is also no requirement for advance notice.

 

Nothing in the legislation prevents a seller from directing the agent to communicate the number of offers or share the content of offers with persons other than those making one of the offers or prevents the agent from following the seller’s lawful direction.

 

An agent representing a buyer client must clearly communicate to their client that a seller is free to decide to share or not share the content of offers at any point in the process, whether before offers are received or after the offers are received, and that the seller can change their mind about sharing at any point in the offer process.

 

Seller Direction to Share Substance of Offers Form 209

Representation Forms

Transaction Forms

Disclosures & Material Facts

All disclosures, consents, and acknowledgements must be:

  • written in plain language that is clear and concise; and,

  • presented in a manner that draws the person’s attention to the required information.

  • disclosures must be identified by the prominent placement of the word “disclosure”.

 

Create a stand alone document to address any/all material facts and other disclosures required. Clearly identify the document as DISCLOSURE.

 

To ensure the required disclosures, consents, and acknowledgements are effectively brought to the person’s attention, they should be distinct and separate from a representation agreement and separate from any agreement facilitating a real estate transaction.

 

An agent’s basic obligations are fulfilled in four steps:

  1. Take reasonable steps to determine the material facts;

  2. Promptly disclose the material facts to the client;

  3. Advise the client to consider if the material facts might affect their decision; and,

  4. Make best efforts to obtain an acknowledgement indicating that the disclosure and advice were received. If acknowledged, the agent must provide a copy of the acknowledgement to the client.

 

What constitutes a material fact will depend on the specific circumstances of a trade. When representing a buyer, it might be the intended use for the property. When representing a seller, it might be a new hospital or other neighbourhood improvement that may increase the value of the property that the agent is or should be aware of.

 

The “reasonable steps” required for determining material facts is not met by simply accepting the client’s verbal representations. Some research, verification, and supporting documentation will be necessary to fulfill the agent’s obligations.

 

Items that are often considered to be material facts include:

  • The type of insulation and wiring (for example, knob and tube wiring);

  • The type of plumbing (for example, lead piping or galvanized plumbing);

  • The age, condition, and ownership status of any major home systems (for example, heating, air-conditioning, roof, and windows);

  • A history of flooding, structural damage, or any previous dwelling fire;

  • Renovations and improvements made to a property and whether the required permits were obtained;

  • Property tax amount and if there are any special assessments or local improvement charges;

  • Whether a property had been used as a marijuana grow operation or for other illicit purposes;

  • Any rights-of-way, allowances, or restrictions on the use of the property established by the municipality, region, or other governmental agency, or otherwise on title; and,

  • Existence of nearby businesses or facilities that may impact quality of life (for example, quarries, industrial facilities, airports, rail lines, etc.).

Discipline Process

The RECO discipline committee will now have the ability to:

  • Suspend, revoke, or apply conditions to a registration

  • Investigate a REALTORS® conduct and refer the matter to the discipline committee whether a formal complaint is made or not

 

The resulting discipline, including the reasons for revocation or suspension of a registration, will be made available to the public.

RECO Bulletins

OREA - TRESA Videos

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