Did you know curtains typically don’t come with a house for sale, but the curtain rod and brackets may? Or that the garage door opener stays put, but the remotes for it aren’t part of the deal?

It’s facts like these that make it important to understand the difference between attached and unattached goods before listing your home for sale, or writing an offer to purchase a property.

So what are attached or unattached goods?

Attached goods are items you cannot remove from the property without causing damage. These include:

• garburator
• water softener
• chandeliers
• curtain rods and brackets
• built-in appliances (i.e. most dishwashers)
• kitchen cabinets
• built-in vacuum canister
• garage door opener
• carpet glued or stretched in

Attached goods stay with the property, unless there is a specific exclusion in the listing agreement or in the buyer’s offer to purchase.

If a seller wants to take an attached good with them or a buyer wants an attached good to not be there when they take possession, they should specifically exclude it in writing in the listing or in the offer.

Unattached goods are movable items. These include:

• wall art
• drapes hooked on curtain rods
• book shelves (not built-in)
• rolling kitchen cart
• movable kitchen island
• appliances that are not built-in (i.e. countertop microwave)
• built-in vacuum power head and attachments
• garage door remote controls
• fireplace screen, tools and remote controls
• area rugs

Sellers usually take unattached goods from the property before the buyer takes possession. If a buyer wants an unattached good included in the purchase of the property, he or she needs to list it as an inclusion in their offer to purchase. The seller would have to agree to such an inclusion as part of their offer acceptance. If the seller plans to take the unattached good, they need to put that in a counter offer to the buyer.

NOTE: In commercial transactions, everything other than the four walls is typically “unattached” (e.g. equipment, hoists) and should be specified in a Purchase Contract.

Issues at possession

If a buyer is worried about inclusions and exclusions as the possession date nears, they can ask their real estate licensee to include a term in the offer to purchase where the seller agrees to let them do a walk-through of the property before possession. This would give the buyer an opportunity see the condition of the property and ensure inclusions or exclusions meet the terms of the agreed-upon contract. If they see a problem, they can negotiate a mutually satisfactory resolution before possession.

When there is a problem with attached or unattached goods after possession, and the seller does not cooperate, the buyer’s only remedy is legal action. You need to think about the value of the missing goods in relation to the costs of legal action to decide if it’s worth pursuing.

Your real estate licensee will help you consider and write exclusions and inclusions when drafting agreements and offers to purchase. If you’re ever in doubt about whether something is attached or unattached, include it in the agreement or contract anyways. When in doubt, write it out.

Real estate licensees work to separate themselves from the crowd and attract new clients. Sometimes this means offering incentives to attract new clients or inducements to complete a sale.

Consumers should know what types of incentives or inducements are allowed, and what they can expect.

Incentives and Inducements

An “incentive” is anything a brokerage advertises, communicates or offers to the public to attract business. This includes travel miles, gifts, contests, gift certificates, games of chance or anything else of value.

An “inducement” is anything a brokerage offers or gives to a person who is, or could be, a party to a real estate or mortgage transaction, meant to assist, persuade or cause that person to enter into a particular real estate or mortgage transaction. Inducement examples include when a real estate brokerage offers to pay a buyer’s legal fees to induce them to proceed with the purchase of a particular property or when a mortgage brokerage offers to pay for an appraisal to induce a borrower to enter into a mortgage deal.

In other words, a brokerage uses incentives to attract consumers to the brokerage, and they use inducements to get a specific consumer to enter into a specific transaction or deal.

Incentives must be brokerage-wide

Any incentive must be offered by the brokerage, not the individual person. Brokerage incentives must be available to all clients or potential clients of the brokerage, regardless of which licensee from the brokerage that they’re working with

That means if you see one real estate licensee offering an incentive – and you want to work with a different licensee from the same brokerage – it should be available to you. If it isn’t, talk to the broker.

Inducements must have broker approval

To offer an inducement, a real estate licensee must:

• receive written approval from their broker
• give you the details of the inducement in writing

Changes to commission are NOT inducements

Commission rates are subject to negotiation, and subject to the terms of a written agreement between brokerage and a client. A commission rate is a contractual matter and can be renegotiated at any time between the parties. An inducement is something a real estate licensee offers or gives that is outside the bounds of a written service agreement. A commission reduction or a renegotiated commission is not an inducement.

Incentive Examples

Acceptable, Brokerage-Wide Incentives

• ABC Realty has a large newspaper advertisement stating any seller who lists their property with the brokerage within the next 60 days will be in a draw for a trip for two to Hawaii.
• Kick Real Estate sends out a flyer to a community stating that for each home bought or sold through the brokerage over the next four months, the brokerage will donate $500 towards equipment for a children’s playground at the community center.

Unacceptable, Individual Incentives

• “Let me sell your house and I will give you free use of my moving van”
• “If you hire me to find your next home, you’ll receive a $500 gift certificate for ABC Depot”
• “If you hire me to find you a new mortgage, I will donate $200 to XYZ Charity”

While these incentives may be allowed if they are actually offered by the brokerage to all clients or potential clients, the advertisements themselves could be a problem because they make it sound as if the individual real estate licensee is offering them.

Inducement Examples

• An associate offers to pay moving costs, legal fees, or buy an appliance for one of the parties in order to persuade them to agree to the offer.
• A mortgage associate chooses to discount the interest rate of a mortgage for a current client in order to induce the borrower to complete a mortgage transaction.
• A property manager offers free advertising to a property owner as an inducement to sign a management contract.

Real estate licensees are consumers too, and they buy and sell property on their own behalf. But when they’re doing so, it can create a conflict of interest and they need to disclose their direct or indirect interest in any purchase or sale as soon as possible and definitely before any offer is made.

What is direct and indirect interest?

Direct interest: when a real estate licensee owns or partly owns a property that is being sold or they are the party interested in buying a property.

Indirect interest: when a real estate licensee is related to, or has a personal relationship with the person selling or buying a property. An indirect interest in a property has the same disclosure requirement as a direct interest.

When real estate licensees have a direct or indirect interest in a transaction, they must make written disclosures to you or your real estate representative at the earliest practical opportunity and before any offers are presented or considered.

Written disclosures to you when you have no representation

When you are not represented by a real estate licensee, and another real estate licensee wishes to buy your property or sell theirs to you, they must disclose in writing:

• their direct or indirect interest in the transaction
• the name of their brokerage
• complete details of any negotiations already underway if they have plans to “flip” or re-sell the property to another party
• any information they have that could materially affect the value of the real estate (i.e. they know something about the property that could affect your decision to buy or sell at that time).

Written disclosure to you when you are represented

When you are represented by a real estate licensee and another real estate licensee wants to buy your property, or sell you theirs, they must disclose in writing that:

• they hold a licence with RECA
• the name of their brokerage

Written disclosures when someone employed by the same brokerage as your real estate representative wants to buy your property or you want to buy theirs

Some brokerages have hundreds of associates, so it’s not unusual to sell to a person affiliated with the same brokerage as your representative. If this is the case, the brokerage must immediately disclose to you:

• the conflict of interest
• the name of the buyer and what their relationship is to the brokerage
• any of your confidential information that the buyer may have already received
• who will be representing the buyer in the transaction

They must also provide you with an opportunity to seek legal and independent advice.

Remember, when a real estate licensee has a direct or indirect interest in a real estate transaction, they cannot represent the other party to the transaction. If you want to continue with the transaction, you won’t have representation unless you hire another brokerage.

Examples

1. A real estate licensee is selling a house he owns through a private sale.  The licensee’s neighbour expresses interest in the property and wants to write an offer. They know the owner of the property is a licensee and they ask him questions about what they should include in a purchase contract. The real estate licensee cannot give the potential buyer advice as that may unintentionally be representing the buyer, which he can’t do so because it’s a personal trade in real estate.
2. A real estate licensee is making an offer on a property that they plan to resell as soon as a land assembly for a large retail complex comes together.  When making his offer, the real estate licensee discloses he is an associate with ABC Realty and that he may resell the property later.  This is not an adequate disclosure, as the real estate licensee must disclose there is a land assembly for the development of a possible retail project, which could make the land worth much more at a future date if the project goes forward.  This disclosure helps prevent real estate licensees from using “inside information” for their own benefit or for the perception that they are doing so.
3. A real estate licensee with ABC Realty owns 25 per cent of a company. The company wishes to purchase a property listed with XYZ Realty. The real estate licensee has an indirect interest in the purchase through her ownership in the company and must provide proper disclosures in writing.  The buying real estate licensee must disclose she is a real estate licensee registered with ABC Realty. This disclosure needs to take place before the seller considers the offer.
4. A real estate licensee’s mother-in-law wants to buy a commercial building that is listed with the real estate licensee’s brokerage. The brokerage must disclose to the seller, in writing:
   • there is a conflict of interest because the buyer is the mother-in-law of a brokerage licensee
   • disclose what, if any, of the seller’s confidential information the buyer already has
   • disclose who represents the buyer.

The seller should have an opportunity to seek legal and independent advice.

Radon is an odourless, tasteless, colourless radioactive gas that is the by-product of uranium decay. Uranium occurs naturally in soil and rock formations, and places with higher than normal uranium deposits, such as Alberta and Saskatchewan, have higher radon levels.

Radon seeps through the earth and into basements, where it can become trapped because of the efficient way our homes are sealed from the outside elements.

Prolonged exposure to radon can lead to health problems, including lung cancer. In fact, after smoking, radon gas is the leading cause of lung cancer.

Sellers

• consider doing a 90-day radon test before listing your home; ensure you hire a certified professional for the test (the do-it-yourself kits are less reliable)
• if you have the results from the test, and the radon level is 200 Becquerel or higher, you need to disclose that to potential buyers UNLESS you install a radon mitigation device before listing
• if the results from the test are less than 200 Becquerel, share the low test results with potential buyers as a potential selling feature
• if you don’t do a radon test before listing, be open to negotiations with a potential buyer that may include a holdback relating to the cost of radon testing and/or mitigation

Buyers

• ask the seller if they have conducted a 90-day radon test
• if so, ask for the results of that test (if the result was 200 Becquerel or higher, the seller must disclose)
• if the seller has not conducted a radon test, talk to your real estate professional about reducing your offer by the approximate cost of radon mitigation
• alternatively, ask the seller for a holdback on your offer to purchase that will be released upon low radon test results OR in the event of a high radon test, the holdback funds will be used for radon mitigation with any funds remaining released to the seller after the mitigation device is installed
• if you buy a home that hasn’t had a radon test done, we encourage you to proceed with a radon test within 90 days of possession. This is health issue, and radon testing and mitigation is money well-spent. For more information about radon, go to Health Canada’s website and search “radon.”

The good news when it comes to radon is it’s a solvable problem. Even if you fall in love with a home that hasn’t had a radon test or the results are high, a radon mitigation device can be installed to vent radon gas outside the home from the basement. Mitigation costs vary, but are often not more than $2,000-$3,000. Hire a Certified Radon Technician to install the device to ensure it’s done properly.

The Alberta Building Code 2014 included new requirements to protect homes from radon. The requirements came into effect in late 2015, and include, among other things, that new homes require a properly located radon rough-in or passive pipe in the basement, which can make it easier (and cheaper) to install a radon mitigation device in the future if it’s needed.

Your real estate or mortgage licensee is your go-to resource during a real estate or mortgage transaction. They have the education, training and knowledge to make your experience as stress free as possible.

However, there are some things you may encounter in a transaction that could be out of your licensee’s area of expertise, and you may want to consider seeking legal or other expert advice.

You may want advice from a/an:

• lawyer
• engineer
• accountant
• tax specialist
• surveyor
• appraiser
• environmental assessor

Real estate and mortgage licensees can’t provide advice on areas or topics with which they are not familiar or competent. For example, if a real estate licensee isn’t a tax specialist, their ability to competently advise on the capital gains implications of selling a property may be limited.

Not only is it perfectly acceptable for you to seek advice from legal or other experts, your real estate or mortgage licensee can’t discourage you from doing so.

Your real estate or mortgage licensee may provide you with a list of experts who can answer your questions or address your concerns; however, they are not obligated to do so. If they do provide you with a list of names, they can’t steer you toward a specific expert.

If you’re a buyer, ask your real estate licensee about the RECA’s Property Inspection Request Form. The form lists the services that a buyer may want to consider. The form does not cover everything, but includes the most common reports or inspections that buyer’s request.

In Alberta, real estate licensees can have a licence that allows them to work in a type – or multiple types – of real estate practice.

The four practice areas are:

• residential real estate
• rural real estate
• commercial real estate
• property management.

A real estate licensee’s area(s) of practice depends on their pre-licensing education. Licensees can be licensed to practice in one of these areas, or in any combination of these areas, depending on the education they completed and the licence they hold. If RECA receives a complaint about a real estate licensee acting outside of the scope of their licence, RECA will review their conduct. You can check your real estate licensee’s licence by using the Find a Professional tool on the RECA website. The areas of practice attached to the licensee’s licence will display when you click on their name after finding them in a search. Their areas of practice are listed beside the word “Sector.”

It may seem obvious what type of real estate licensee you need (for example, if you’re selling a single detached house you need a residential real estate licensee), but sometimes the line is blurry. For example, if you have an acreage property located outside of a city, is it residential or rural? Here is detailed information to help you figure out what type of real estate licensee you need.

Residential Real Estate

Real estate is residential, when:

• the building and the land are intended for residential purposes
• the building has four units or less intended for residential purposes
• the land intended to be the site of a residential building or buildings will eventually have four units or less

What can residential real estate licensees do? 

They can represent buyers and sellers of residential real estate, including:

• single-family homes
• residential acreages (country residential) not intended for farming
• duplexes
• four-plex
• townhouses
• condominiums (single units only, not entire condo buildings with more than four units)
• a cabin at the lake used for recreational purposes

Rural Real Estate (Agri-Business)

Rural real estate refers to:

• property outside a city, town, etc. that has farming as its primary purpose

What can rural real estate licensees do? 

They can represent buyers and sellers of rural real estate. Typically, rural properties that are intended for farming have a designated land use that reflects that. The rural definition does not include “rural residential” properties. Residential real estate includes rural residential properties, which are also known as country residential properties, such as acreages. These properties have a residential dwelling or are intended for a residential dwelling, and their primary purpose is not farming. Individuals whose licence only includes rural real estate cannot represent the buyers and sellers of rural residential or country residential.

Property Management

Property management is:

• leasing, negotiating, approving or offering to lease real estate
• collecting or offering or attempting to collect money payable for the use of real estate
• holding money received in connection with the rental of real estate
• advertising, negotiating or any other act, directly or indirectly for the purpose of furthering the above activity

What can property manager licensees do?

Property management licensees can work with landlords (property owners) and/or tenants (potential tenants) in the leasing of real estate. A licence to provide property management services allows an individual to do so for all types of properties: commercial, residential and rural real estate.

Commercial Real Estate

Commercial real estate means property intended to generate income. It includes property used for:

• retail
• office
• industrial
• investment
• institutional
• multifamily residential property comprised of more than four units

What can commercial real estate licensees do?

They can assist in the purchase, sale, or lease of office buildings or space, industrial sites and retail.

Examples

These examples do not cover every possible situation or scenario.

1. Side-by-side duplex: a residential real estate professional can assist the buyer or seller of a side-by-side duplex because the property is residential, its use is residential, and it has only two premises.
2. 10-unit apartment building: A residential-only real estate licensee would not be able to assist the buyer or seller of such a property. The real estate licensee requires a licence to trade in commercial real estate.
3. Representing the buyer of a four-plex: An individual with a licence to trade in residential real estate could assist the buyer in the purchase of a four-plex as there are only four premises.
4. A developer wants to hire a residential real estate licensee to sell 75 individual premises in a high-rise condominium building. A residential real estate associate can represent the developer for these sales. The developer is selling one unit at a time; the developer is not selling the building as a whole (if he was, he would require the services of a commercial real estate licensee). If one buyer wants to purchase multiple units, each purchase would be separate and the buyer could still be represented by a residential real estate licensee.
5. A buyer wants to buy an acreage with 5-10 acres with a single-family residence. The buyer will use this as their family’s principal residence. A residential real estate licensee could assist this buyer in their search for a single-family home on an acreage.
6. A unique development in Calgary contains office/residential condominiums. In each unit, the owner resides, but the land use policy allows the individual to have a home business in the condominium. A residential real estate licensee could assist a buyer or seller of this property. Its primary use is residential, even with the addition of office space, and it’s a single premises.
7. A developer is selling lots at a lakeside resort community. A buyer wants to purchase one of these lots with the assistance of a real estate licensee. The buyer plans to build a recreational property in which he will reside half of the year. He may consider renting out the property for the other six months of the year. A residential real estate licensee could represent the buyer in this deal. The real estate’s use is as a site for residential purposes.
8. A residential property owner enters into a written service agreement with a residential real estate licensee to sell the property. The owner is transferred out of town and the property hasn’t sold yet. He asks his residential real estate licensee to find a tenant. The residential real estate licensee can lease the property on the owner’s behalf, but can’t manage the property unless he is authorized in property management and his brokerage allows property management activities.
9. A seller operates a six-bedroom bed and breakfast on an acreage outside of the city; the primary purpose of the property is not farming. The property does generate income. A commercial licensee could represent this seller. A rural real estate licensee could not represent this seller; the primary purpose is not farming.
10. A residential property owner enters into a written service agreement with a residential real estate licensee to sell the property. The owner moves out of town prior to the home selling. He asks his residential real estate licensee to find a tenant. The residential real estate licensee can lease the property on the owner’s behalf, but can’t manage the property unless he is licensed in property management and his brokerage allows property management activities.
11. Leasing under contract: a licensee has a property (strip mall) under contract, as a property management brokerage, and they advertise for clients to lease a bay in the strip mall. A potential tenant says the available bay isn’t quite what he wants and he says he saw one across the street in a different building. Unless the licensee has a property management contract with the owner of the property across the street, they can’t help the potential tenant. The potential tenant needs a commercial real estate licensee. Professionals can only do the leasing for the properties under which they have a property management contract.
12. Licensed to trade in all areas: Some individuals are licensed to trade in all areas of real estate practice, including property management, but their brokerage does not allow property management activities. In those cases, those individuals cannot provide property management activities because doing so would be trading in real estate outside of the brokerage with which they are registered.
13. The owner of a small convenience store lives in a residential premises above the store. The owner has decided to sell the entire building, including the store premises and the residential premises. The intended use of the property is to remain as a commercial enterprise on the first floor with a residential premises on the second floor. A commercial real estate licensee can represent the seller in this transaction; a residential real estate professional cannot.

Are you selling your home, but you aren’t being represented by a real estate licensee? You may be a “mere posting” seller. A mere posting is when a real estate licensee puts a seller’s listing on a Real Estate Board’s listing database, but the real estate licensee has chosen or agreed not to provide services to the seller other than to submit the listing for posting on a listing database.

If you are a mere posting seller, you need to make sure you understand the role of the buyer’s representative. You need to know the services you will receive from the buyer’s brokerage (real estate licensee) and just as importantly, what services you won’t receive from the buyer’s brokerage.

What you need to know

• the potential buyer is using the services of a real estate licensee
• the real estate licensee is the agent of the buyer and must act in the buyer’s best interest
• the buyer’s representative does not represent you
• the buyer’s representative may provide administrative services to facilitate the sale of your home. They may act as a scribe for you to complete documents but cannot give you advice
• the buyer’s representative will ask you to pay a fee for selling your home
• the buyer’s representative will ask you to sign a Sellers Customer Acknowledgement and Fee Agreement prior to presenting the offer
• if you do not reach agreement on a fee, the buyer’s representative may have to talk to the buyer prior to presenting any offer
• the buyer’s representative cannot give you advice on the value of your home
• the buyer’s representative may give you information on homes similar to yours for sale and those that have sold

Consumers with no representation

You may wish to work with a real estate licensee for a particular real estate transaction and not want a real estate licensee to represent you. Examples of this include:

• the real estate licensee represents a landlord of a large shopping centre and a potential tenant has an interest in a space in the mall
• the real estate licensee has a written buyer brokerage agreement in place and attempts to sell a property where the owner is representing themselves
• the seller has chosen a mere posting option without representation to sell their residential property
• a real estate licensee represents a new home builder exclusively and a potential buyer shows interest in the builder’s property
• a real estate licensee is a tenant representative and approaches a landlord on behalf of a potential tenant

A client is a person that enters into a service agreement with a real estate licensee. A customer is a person who has made contact with a real estate licensee but does not engage them to provide services.

In the situation where the real estate licensee represents the buyer and the seller is selling their home through a mere posting listing, the buyer’s real estate licensee will treat the seller as a customer and provide sole agency representation to the buyer. This means they will give administrative services to the seller and full representation services to the buyer.

Disclosure of role and administrative services to the unrepresented seller

It is important for a buyer’s real estate licensee to disclose to you that the buyer’s brokerage:

• does not represent you, the seller
• represents the buyer
• must be loyal to the buyer and always act in their best interest
• does not owe any agency obligations, and in particular, any fiduciary obligations, to you
• will not give you any services that require the exercise of discretion or judgement, or the giving of confidential advice, or the brokerage advocating on your behalf
• will communicate to the buyer all information from you, whether or not it is of a confidential nature. The exception is for confidential information the brokerage receives from you through a prior agency relationship with you
• will not give you information or advice that is not in the best interest of the buyer

Obligations to the seller

The buyer brokerage’s responsibilities to you, the seller, are:

• exercise reasonable care and skill in relation to the brokerage services
• not negligently or knowingly give you false or misleading information
• hold all monies the brokerage receives in trust in accordance with the provisions of the Act
• comply with the provisions of the Act, Rules, Regulations, and Bylaws

Administrative services to the seller

When it is in the best interest of their buyer client, the real estate licensee may give administrative services to you, as a customer. Real estate licensees will give these services to a customer because doing so would be for the benefit of their client and the transaction. Administrative services are at the option of the real estate licensee, without creating a client relationship. The brokerage, at its sole discretion, may give you, the unrepresented seller, the following information or services:

• real estate statistics and information on properties including comparable property information available through listing services or other local databases
• standard form agreements of purchase and sale and other relevant form documents and act as scribe in their preparation in accordance with the instructions of the seller
• the names of real estate service providers, but the brokerage will not recommend any particular service provider
• present, in a timely manner, all offers and counter-offers to and from the buyer and seller
• convey, in a timely manner, all information the seller wishes to communicate to the buyer
• inform the buyer and seller of the progress of the transaction

Click here for more information on having a “customer” relationship with a real estate licensee.

Real estate industry assistants often handle daily administration details, leaving licensees free to engage in activities requiring a licence.

Assistants aren’t licensed by RECA and are not part of our jurisdiction. However, RECA holds an associate, associate broker and/or the broker responsible for an assistant’s activities. For example, Real Estate Act Rule requirements state a licensee must provide supervision and ensure the public has full knowledge the assistant is unlicensed.

Limited Responsibilities

Licensees can’t assign duties to the assistant that require a licensee. While an assistant can organize a licensee’s appointments to show properties, they can’t:

• personally conduct the showings
• conduct contract negotiations
• offer advice to clients
• sign contracts on behalf of the brokerage

It’s important to note that consumers dealing with unlicensed assistants conducting these types of activities aren’t protected by the Real Estate Act.

What is transaction brokerage?

Transaction brokerage is when the buyer and the seller are represented by the same real estate brokerage (in common law agency) or the same real estate licensee (in designated agency). If a real estate licensee represents both parties in the same transaction, there is a conflict of interest. Transaction brokerage is a way to deal with this conflict. It allows the same real estate licensee to work with the buyer and the seller in the same transaction.

When does transaction brokerage happen?

Transaction brokerage happens when a buyer is interested in a property listed by their representative’s brokerage (in common law) or by their representative (in designated agency).
A buyer simply viewing a property listed with the same brokerage or with the same real estate licensee does not create transaction brokerage. However, if the buyer expresses an interest in the property after the showing, this triggers the need to discuss the client’s options, one of which is transaction brokerage.

What are the differences between transaction brokerage and other types of representation?

Typically, when you’re the client of and represented by a real estate licensee in sole agency, your licensee owes you:

• Undivided loyalty – your representative must act only in your best interests and put them above their own and those of other people
• Confidentiality – your representative must keep information confidential, even after your relationship ends
• Full disclosure – your representative must tell you, in writing, the services they will provide and they must tell you everything they know that might affect your relationship or influence your decision in a transaction.
• Obedience – your representative must obey all your lawful, reasonable and ordinary instructions.
• Reasonable care and skill – your representative must exercise reasonable care and skill in all their duties
• Full accounting – your representative must account for all money and property they receive while acting on your behalf

In transaction brokerage, your representative becomes a transaction facilitator and treats you and the other party (the buyer and seller) in an even handed, objective and impartial manner. The real estate licensee no longer owes you undivided loyalty.

If the buyer and seller agree to proceed in transaction brokerage, both will have to sign an Agreement to Represent Both Buyer and Seller form, which will effectively end the sole agency representation for both and set out the terms of the new relationship between the brokerage and the buyer and seller.

What are the responsibilities of my real estate licensee in transaction brokerage?

Your real estate licensee must:

• present all offers and counter-offers to and from you and the other party, even when you have accepted another purchase contract.
• pass on all information to you that the other side wants you to know.
• keep you informed of progress.
• tell you what information they’ve given to the other side.
• tell you all information they receive while this agreement is in effect, especially:
• to the buyer, all material latent defects affecting the property.
• to the seller, all material facts about the buyer’s ability to buy the property.

They must not tell either of you without the informed written consent of the other:

• the other side may be prepared to move on the price or to offer more favourable terms.
• the other side’s reasons for buying or selling the property.
• personal and confidential information about the other.

Pros and cons of working in transaction brokerage

What if I don’t want transaction brokerage?

When you or the other party do not agree to transaction brokerage, you still need to resolve the conflict.

If one or both parties want the benefit of sole agency representation, the brokerage needs to determine which party became its client first. The party who became a client first will remain the brokerage’s client; the date on the written service agreement for each party is the determining factor. The other party then needs to decide what to do.

Option 1: Customer status (self-representation) 
The party that becomes a customer, and represents themselves in the transaction, will need to sign a Customer Acknowledgement form to confirm the change in representation with the brokerage. Although the brokerage or designated agent will not represent that party or advocate on that party’s behalf, they may provide certain services to the customer. For more information on customer status, review Customer – Real Estate.

Option 2: Representation by another brokerage or by another designated agent within the same brokerage
The party who is not remaining a client of the original brokerage/designated agent may want to have another brokerage or a different designated agent represent them. If you go this route, it is up to you to find a new brokerage or request a different designated agent from within the same brokerage.

Choosing a new brokerage or a different designated agent within the same brokerage will provide you with sole agency representation as a client.

Is transaction brokerage always appropriate?

There are some situations where sole agency representation would be in the client’s best interests; in those cases, transaction brokerage isn’t appropriate.

A buyer or seller may need sole agency representation if:

• they have mental or physical limitations
• they are of advanced age
• they are a new immigrant unfamiliar with Alberta’s real estate industry
• they are unfamiliar with the English language

Transaction brokerage is also inappropriate if the real estate licensee is a party to the transaction (as the buyer or seller) or is a family member or business associate of one of the parties in the transaction. It would make it very difficult and unrealistic to expect the licensee to treat both parties in an even handed, objective and impartial manner.

When you’re the client of a real estate or mortgage licensee, they have an obligation to maintain the confidentiality of your personal information (including finances), as well as information about the property or transaction.

Your licensee can only disclose your personal information to others if you give them permission or it is required by law.

Personal Information

Personal information is any information about an identifiable person. This could include:

• addresses
• phone numbers
• e-mail
• age
• employers
• physical traits
• ID numbers
• finances
• marital status
• health
• family
• ethnic origin
• religion
• sexual preferences
• memberships
• education
• history
• occupation

Property Information

Property information includes:

• legal description
• zoning designation
• square footage
• taxes
• age
• building condition
• pictures or video of the property
• sale price
• past history
• structural
• heating
• plumbing
• electrical
• mechanical

Transaction Information

Transaction information includes any information you give to your real estate or mortgage licensee through the course of your client relationship. It includes service agreements and communications, such as text messages, email, verbal conversations, etc.

Are there exceptions to confidentiality?

Material Latent Defects

If your property has a material latent defect, you must disclose that to your real estate licensee, and your real estate licensee must disclose this information to a potential buyer or the buyer’s representative. This disclosure does not require your consent.

If you are not sure if the defect is material or latent, talk to your real estate licensee.

Ability to purchase or lease a property

If you’re in a transaction brokerage agreement, the brokerage must disclose any known material facts relevant to your ability to buy (if you’re a buyer) or lease (if you’re a tenant) to the seller or lessor, as the case may be.

Does your licensee’s obligation to keep your information confidential end when the sale is completed?

Even after your transaction is done, your licensee is still required to keep your information confidential. The requirement to keep your information confidential does not have an expiry date.