Am I entitled to remuneration when I become a lessee, buyer or borrower?

The answer is no. You are not entitled to any remuneration when you:

• become a lessee;
• purchase an immovable or an enterprise;
• take out a mortgage loan; or
• renew your mortgage.

A question of control

The answer again is no if the lessee, the buyer or the borrower is a partnership or a legal person (business corporation) under your control.

To find out if a legal person or partnership is under your control, you need to determine if your situation (for instance if you hold the majority of voting shares) allows you to have direct control over the decision-making. In some cases, the opinion of a legal expert may be required.

When representing your spouse

The answer to the question remains no if the lessee, the buyer or the borrower is your spouse, or a partnership or legal person controlled by your spouse.

Under the law, a spouse is the person to whom you are married or with whom you are in a civil or common law union. What is a common law union? Although the Real Estate Brokerage Act does not define this concept, the OACIQ’s position is based on the Interpretation Act, which states that if you have been living with your spouse for a least one year, both of you are presumed to be common law spouses.

In addition, if you and your spouse (not separated) have a child together, you are presumed to be common law spouses, regardless of how long you have been living together.

Finally, you are also considered to be common law spouses if, socially and regardless of how long you have been living together, you are recognized as a couple, whether or not you live under the same roof and whether or not you have children together.

Other cases

Since a broker is not entitled to any remuneration when becoming, directly or indirectly, a lessee, a buyer or a borrower, he cannot pretend waiving his remuneration or state that he is not entitled to it when presenting his promise to purchase.

The broker cannot also do indirectly what he cannot do directly, i.e. to receive a share of remuneration due to the broker who represented him in his transaction, if applicable.

Therefore, all brokers or agencies should avoid paying remuneration to a broker pertaining to one of the situations described above or sharing it with him.

Finally, remember that the broker wishing to acquire an interest in an immovable or enterprise, i.e. a “right of ownership, whether personally or through a legal person such as a corporation, is acting for his own interests. He is not acting as intermediary and therefore cannot represent the seller or the lessor.