The disclosure to consumers must be made in writing using the Council's Disclosure of Representation in Trading Services form.

Certain activities are exempted from requirement to provide the disclosure. Licensees may host open houses or provide general factual responses to questions without providing the disclosure, unless the licensee receives or solicits confidential information from a consumer as part of these activities.

Does the Disclosure of Representation in Trading Services have to be made to a consumer who is already working with a licensee?

If you are dealing with a consumer who is accompanied by a licensee, you are not required to make the Disclosure of Representation in Trading Services.

If you are dealing with a consumer who is not accompanied by a licensee, you must make the Disclosure of Representation in Trading Services — even if that consumer is currently in a client relationship with a licensee.

For example, imagine you are hosting an open house. While there, you are approached by a potential buyer who is represented by a licensee but not currently accompanied by that licensee. The consumer begins asking you questions that could lead you learning their confidential information. You must make the Disclosure of Representation in Trading Services before that confidential information is shared.

Do licensees need to make the Disclosure of Representation to consumers when handing out information sheets at an open house?

No. When hosting an open house, you can greet consumers as they enter and hand them an information sheet about the property without having to make the Disclosure of Representation in Trading Services or the Disclosure of Risks to Unrepresented Parties.

If a consumer approaches you at the open house and asks you general questions about the property, you can answer those questions.

However, if you find yourself getting into a more substantial discussion with a consumer at the open house, you should pause the discussion and make the Disclosure of Representation in Trading Services and, if appropriate, the Disclosure of Risks to Unrepresented Parties, as required under sections 5-10 and 5-10.1 of the Rules.

The goal is to be as frank and up-front as possible with unrepresented parties, by proactively disclosing at the earliest opportunity that you are:

  • acting for the seller, and
  • obliged to share with the seller any confidential information provided to you by an unrepresented party.
If a licensee representing a seller receives a phone call from a potential buyer who is unrepresented, and who is interested in the licensee's seller client’s property, at what point should the licensee make the required disclosures?

You can provide factual responses to general questions posed by the unrepresented buyer about your seller client’s property without making the Disclosure of Representation in Trading Services and the Disclosure of Risks to Unrepresented Parties.

However, if you find yourself getting into a more substantial discussion, you should advise the unrepresented buyer that before you can continue the conversation, you are required to make certain disclosures to them.

If the unrepresented buyer is willing to provide you with an e-mail address, you can:

  • end the phone call
  • e-mail copies of the Disclosure of Representation in Trading Services and the Disclosure of Risks to Unrepresented Parties forms and
  • continue your phone conversation once the unrepresented buyer has reviewed the disclosures and you have answered any questions about the disclosures.

Otherwise, you will need to meet with the unrepresented buyer in person to provide copies of the Disclosure of Representation in Trading Services and the Disclosure of Risks to Unrepresented Parties forms.

You can also advise the unrepresented buyer on the phone that if they begin working with a licensee, you would be happy to speak with their licensee.

If a licensee receives a “general enquiry” phone call from a consumer who wishes to discuss the benefits of working with a licensee, at what point during the call should the licensee make the Disclosure of Representation in Trading Services?

If you are speaking with an unrepresented party who is interested in engaging you, and you are available and interested in working with them, you may have a lengthy general conversation about:

  • The types of services you could offer them;
  • Agency, and the duties associated with agency;
  • Important decisions for consumers;
  • How you are remunerated;
  • Your duty to avoid conflicts of interest; and
  • Your duty to fully disclose any conflicts of interest that arise.

At the end of that phone call, you should make the Disclosure of Representation in Trading Services required under section 5-10 of the Rules. Confirm in writing, based on the consumer’s instructions, whether you will be in a client relationship with the party, or whether that party will continue to be unrepresented.

This can be done either by email, or in person.

If a licensee is dealing with a buyer as an unrepresented party, and the buyer decides they would like to become a client of the licensee, does the licensee need to make the Disclosure of Representation again, because the nature of the relationship is changing?

Yes. If you are moving to an agency relationship after treating a consumer as an unrepresented party, you must make a further Disclosure of Representation in Trading Services under section 5-10 confirming that, going forward, you will be acting as their agent.

Assuming all appropriate disclosures are made under the new rules (Disclosure of Representation in Trading Services, Disclosure of Risks to Unrepresented Parties, and Disclosure to Sellers of Expected Remuneration), is “double-ending” a deal (i.e. a listing brokerage earning 100% of the commission if the buyer is unrepresented) still permitted?

Yes, this is still permitted. However, licensees should remember that dealing with unrepresented buyers creates significant risks for:

  • the licensee;
  • the unrepresented buyer; and
  • the licensee’s client.

While the Superintendent’s agency and disclosure rules restrict the practice of dual agency, they do not restrict the practice of “double-ending” (i.e. a listing brokerage earning 100% of the commission if the buyer is unrepresented).