The Superintendent has provided a narrow exemption to the rule prohibiting dual agency, for rare situations where:

  1. the trade occurs in a remote location
  2. that is under-served by licensees and
  3. where an alternative to dual agency would be impracticable.

All three conditions must be met in order to qualify under this exemption.

“Impracticable” means “not capable of being done.” It does not mean “inconvenient.”

What are the definitions of “remote" and "under-served"?

The terms “remote” and “under-served by licensees” are not defined in the Rules. Council’s position is that these terms should be interpreted narrowly and strictly, in keeping with the Superintendent’s goal of imposing broad restrictions on dual agency.

It is important to remember that in order to fall within the exception set out in section 5-17(1) of the Rules, all three criteria must be satisfied:

  1. the real estate must be in a remote location,
  2. the remote location where the real estate is located must be under-served by licensees; and
  3. it must be impracticable for the parties to be provided trading services by different licensees.

If a licensee or a managing broker is unsure if the exemption applies to their circumstances, it is recommended that they seek legal advice regarding the specific details of their transaction.

What does “impracticable” mean in Rule 5-17(1)?

Impracticable means “not capable of being done.”

Impracticable is different than simply “inconvenient.”

Before offering limited dual agency under the exception in section 5-17(1), ask yourself:

  • Is there no way another licensee could provide the parties to the trade with independent representation?
  • What steps have you taken to satisfy yourself that dual agency is the only available option?

If a licensee or a managing broker is unsure if the exemption applies to their circumstances, it is recommended that they seek legal advice regarding the specific details of their transaction.

I am a licensee at a brokerage in a small town. There are two licensees at my brokerage: myself and my managing broker. While acting as the designated agent for a seller, an unrepresented buyer asks me if I can represent her in making an offer to purchase my seller client’s property. Under the rules effective June 15, 2018, do I qualify for the exemption to the rule prohibiting dual agency?

Unless you and your managing broker can make a strong argument that all three conditions for the exemption to the rule prohibiting dual agency are satisfied, you should not consider providing limited dual agency.

You need to ask yourself the following questions:

  1. Is my town remote?
  2. Is it also underserved by licensees?
  3. Would it be impracticable (i.e. impossible) for another licensee to represent the buyer? For example, is there no other licensee in my town, or in another community, who could provide independent representation to the buyer?

Unless you and your managing broker can make a strong argument that all three conditions are satisfied, you should not consider providing limited dual agency. The Council will be examining any disclosures of limited dual agency very closely, to make sure that consumers are protected.