Promise to purchase
Take a typical scenario: a broker has a promise to purchase in hand and is preparing to present it to the seller. The phone rings: the buyer informs him that he no longer wants to buy the immovable or present the promise to purchase. What should the broker do?
Should the buyer or the seller be notified, before the signing of the deed of sale, of any defect or irregularity whatsoever affecting the declarations and obligations of the seller, the buyer has a recourse provided under clause 10.5 of the Promise to purchase form.
The OACIQ noticed that some brokers refuse to grant their colleagues the right to take part in the presentation of promises to purchase, arguing that the seller has given them written instructions to this effect. They base themselves mainly on section 100 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising, which states that::
Nicole went ahead as usual. As soon as she knew that two buyers wanted to submit promises to purchase, she notified her selling client and agreed with him on a meeting with the two other brokers. They wanted to present their respective clients' promises to purchase themselves, as was their right.
The seller remains free to refuse a promise to purchase even if it meets all the conditions in the brokerage contract
In 2010, the Court of Appeal, the highest court in Québec, handed down a major decision for real estate brokerage in a case where the Association des courtiers et agents immobiliers du Québec (ACAIQ) – now the Organisme d’autoréglementation du courtage immobilier du Québec (OACIQ) – appeared, first in the trial court, and later in the Court of Appeal, to argue its position.
Clause R2.3 of Annex R - Residential immovable allows the seller to accept a new promise to purchase conditional upon the cancellation of a previously accepted promise to purchase. In some cases, however, this clause may not suit the needs of the seller.
Several clauses appearing particularly on the forms "Promise to purchase"(1), "Annex F"(2) and "Annex R"(3) state that the Promise to purchase shall become null and void if one of the parties fails to comply with the deadline indicated therein. Clause 6.3 of the Promise to purchase is an excellent example of this situation.
Promise to purchase and financing of an immovable – The importance of the section relating to new hypothecary loan
Financing can make or break a real estate transaction. Therefore, in order to properly advise his clients, it is important that a real estate broker fully understand the obligations relating to new hypothecary loan. These obligations can be found under section 6 of various mandatory Promises to purchase forms of the OACIQ, namely:
The OACIQ has recently announced that as of December 1, 2012, the following forms must be used to conclude the lease of a dwelling: New forms for residential lease
On October 24, 2012, the OACIQ announced the availability of the following forms which will be recommended for transactions concerning a vacant lot, a commercial or industrial immovable or a chiefly residential immovable containing five dwellings or more.