Duties and Obligations of the Broker

On November 30, 2005, the Board of Directors of the Association des courtiers et agents immobiliers du Québec adopted a By-law amending the By-Law of the ACAIQ that fixes the premium payable to the Liability Insurance Fund, in accordance with the Real Estate Brokerage Act. The universal premium of $550 per member, per year, plus applicable taxes, is therefore confirmed. This is a great step toward being granted the insurer’s licence to actually launch the Fund in 2006. The adoption of this by-law follows a Five-Year Development Plan prepared by the actuarial firm of Eckler Partners Ltd. An accounting, actuarial and legal requirement of the Autorité des marchés financiers (AMF) prior to granting a licence, this development plan and the ensuing adoption of the by-law brings us another step closer to our goal. The by-law has been submitted to the government for approval. The timetable set by the ACAIQ to create the Fund is currently on schedule. Only a few steps remain before the AMF issues the insurer’s licence needed to launch the Fund.

Held in Boucherville on November 22 under the theme “Don’t be fooled” and hailed by Paul Girard, Associate Deputy Minister at the Ministry of Public Safety, in his opening address, the ACAIQ seminar on marijuana grow operations was a resounding success.

You can’t talk about the Directors’ role without referring to the role of the Board of Directors itself. Whether it is the Board of the Association des courtiers et agents immobiliers du Québec or that any other company or corporation (legal person), the role of a board of directors is to advise. The ACAIQ Board, for its part, works to ensure the Association’s continuity and, in so doing, has very specific responsibilities under the law.

At the ACAIQ, the Board of Directors is responsible for hiring the Association’s President and CEO and for ensuring that this individual carries out the main strategic directions set by the Directors while fulfilling his obligations under the law. The Board therefore acts as an advisor that establishes the framework in which the Association will operate and the conduct it will adopt.

Directors should be people who have insight into the practice of real estate brokerage and whose actions are consistent with the Association’s public protection mission and the practice of real estate brokerage. They must anticipate where real estate brokerage is going and suggest tools to adapt practices to current times, including appropriate regulations and forms, continuing education, etc. Directors must make sure that the rules of professional ethics are clearly understood and followed by real estate brokers and agents.

On several occasions already, the Board of Directors has ratified major strategic plans extending over several years that identified short and mid-term directions to guide the Association towards its stated objectives. For example, it was the Directors who decided to put emphasis on continuing education as a way to help real estate agents improve their practice. They also chose to help members embrace technology by developing the acaiq.com website, the Extranet Synbad as well as real estate brokerage e-forms.

The role of the Directors is not to manage the Association’s internal affairs, but rather to ensure that the Association’s finances are being properly managed. The Board has been faced with tough decisions at times, including a major raise in annual fees in 2000, intended to give the Association increased visibility. Like previous media campaigns, the major television campaign currently airing 35 information capsules on the TVA network, is one example of what this increase has enabled us to do.

The ACAIQ has now become a key player in the field of real estate brokerage, in the eyes of both the public and the media. This has had all sorts of repercussions on the organization, due in part to a major increase in the number of calls from the public and from real estate brokers and agents. This led Directors to accept major changes in administrative procedures, including the creation of the Assistance Service, a first for our type of organization. This move has proven very profitable by considerably reducing response times and allowing quick resolution of professional disputes.

Additionally, it is the Board of Directors that appoints the Association’s syndic and assistant syndics. This power of appointment necessarily entails a power of removal. However, the Board may not intervene in any way in the internal management of the Office of the Syndic, unless there are obvious signs that the latter’s management is deficient.

PRACTICES SERIES

Just as he must verify the features of an immovable, the real estate agent must know and verify the characteristics of the immovable’s right of ownership under private and public law.

Hidden defects insurance is a new product available to buyers of residential properties containing five dwelling or less. As real estate brokers and agents will surely be solicited to provide information about this product, the ACAIQ would like to make the following clarification.

Real estate brokers and agents are very familiar with the difficulties involved in determining the area of a divided co-ownership unit. On the one hand, the current practice of selling new co-ownership properties “on plans” means that measurements are based on architectural plans. On the other hand, the Civil Code of Québec requires that the cadastral plan from which the creation of the co-ownership originates be determined from an actual measuring of the inside of the private portions based on established physical boundaries.

It is important to note that the Small Claims Court decision changes nothing to current Discipline Committee jurisprudence, which is very clear on that subject, nor to the Rules of Professional Ethics of the ACAIQ. An agent who is apprised of the fact that a suicide has occurred on a property still has an ethical obligation to disclose this fact.

The people responsible for our road network at the Ministère des Transports noted that many real estate signs were erected within the roads’ right-of-way. Some real estate brokers or agents have had their signs disappear shortly after erecting them and have filed complaints with the police.

PRACTICES SERIES

Clause B2.3 of Annex B – Residential immovable allows for the acceptance of a promise to purchase conditional upon cancellation of a promise previously accepted by the seller. With this clause, the seller promises to undertake, in good faith and at his own expense, reasonable steps to obtain cancellation of every previously accepted promise to purchase the immovable.

A real estate broker is the only person who can receive compensation under a brokerage contract. When a client refuses to pay the commission agreed to in the brokerage contract, only the broker is authorized to initiate civil proceedings against this client. As for the agent who carried out the transaction, he may only claim his compensation from his broker, and not from the client.