In which situations the Declarations by the seller of the immovable (DS or DSD) form must be used and how to convince a reluctant seller to complete it?

When signing a brokerage contract with a natural person, the Declarations by the seller of the immovable (DS) form must be completed with the seller when it is relating to:

• a residential immovable containing less than 5 dwellings;
• share of a chiefly residential immovable held in undivided co-ownership.

For a transaction related to a divided co-ownership, any broker is now required to use the form Declarations by the seller of the immovable - Divided co-ownership (DSD).

When the seller (natural person) refuses to complete and sign the DS (or DS D) form, or if he indicates on this form “I refuse to complete the form” and signs it (which is in fact the same thing), the broker simply cannot sign or perform his brokerage contract with him.

Other situations

Liquidator of a succession
The liquidator of a succession who acts as a representative of a property containing less than five dwellings belonging to a natural person is also subject to this rule. If he has never lived in the immovable, he must complete the form to the best of his knowledge. If he is unable to answer some questions because the elements concerned were not brought to his attention, these questions will be left blank and the broker will write details under section D15 of the form.

Financial institutions and other legal persons
In the case of a “repossession” sold by legal persons or companies (banks, for instance), the use of the DS (or DSD) form is not mandatory, but highly recommended. If the form is not used, the seller should instead use the recommended form Exclusive brokerage contract – Sale of an immovable (BCG) which contains, at the minimum, some declarations on the immovable (on leases, mortgage, water, sewers, etc.). However, if the broker uses the Exclusive brokerage contract – Sale (BCS) (or the BCD), he should use the DS (or the DSD) form, since these forms are designed to be used together. Otherwise, as this form does not contain the mandatory minimum statements, the broker shall reproduce them therein, as well as in the description sheet and the Promise to purchase forms. However, this repetition involves a risk of errors and loss of time.

Selling a vacant lot

The first option is to use the OACIQ recommended form Exclusive brokerage contract– Sale of an immovable, abbreviated “BCG” (“G” for “General”). Under clause 8.4 of this form, the broker must check the appropriate box to indicate if the seller has completed the Declarations by the seller of the immovable form (which is always recommended), or whether he chose to complete only the seller’s declarations contained in the brokerage contract itself. In the latter case, declarations 1 through 10 must be completed to the seller’s best knowledge.

The second option is to use the Brokerage contract – Sale of a chiefly residential immovable containing less than 5 dwellings excluding co-ownership (exclusive or non exclusive) even if this form is not mandatory for the sale of a vacant lot, even if it is for residential use. This is because this mandatory form is only for immovables referred to in section 23 of the Real Estate Brokerage Act (REBA), i.e., part or all of a chiefly residential immovable comprising less than five dwellings. A vacant lot is not subject to this section since it has no dwelling.

This form is not the best choice to sell a vacant lot, notably because it cites the right to cancel (section 28 of the Real Estate Brokerage Act) before the parties’ signature block, which is not mandatory for the sale of a vacant lot, even if for residential use. In addition, a broker who chooses to use the Brokerage contract – Sale – Chiefly residential immovable containing less than 5 dwellings excluding co-ownership (exclusive or non exclusive) form will himself, at a minimum, have to add under clause 11.1 certain essential declarations by the seller of the immovable such as those listed under clause 8.4 of the Exclusive brokerage contract – Sale of an immovable (BCG). If not, the Declarations by the seller of the immovable form will have to be completed (which is always recommended) and linked as an integral part of the Brokerage contract – Sale of a chiefly residential immovable containing less than 5 dwellings excluding co-ownership (exclusive or non exclusive) form.

Descriptive sheet

The Declarations by the seller of the immovable (DS) form or the Declarations by the seller of the immovable - Divided co-ownership (DSD) form, if applicable, must be included in the description sheet of the information dissemination service such as Centris or any other similar service, and in the (detailed) broker sheet.

Regarding the client sheet, it must indicate the existence and availability of this form and its number, in accordance with the regulation respecting the information on properties.

The documents that should be provided by the seller with the DS (or DSD) form (for example, invoices, leases), do not have to be included in the sheet, but will have to be communicated to any broker or buyer who asks for them or can be obtained using clause 9.1 of the Promise to purchase, “Review of documents by the buyer”.

Any Amendments (AM) form amending a DS (or DSD) form must also be included in the sheet with the DS (or DSD) form.

How to convince the seller to complete the form?

It is preferable to explain the DS (or DSD) form to the client and complete it with him before signing the brokerage contract, since the information collected by the broker provides him with a more accurate picture of the house before marketing it. He can then better advise his client, begin his verification work and better assess the immovable.

Advantages of a completed DS (or DSD) form:

• The broker can better advise his client on the value of the immovable and on the marketing strategy (showcasing);
• The information declared will have the effect of protecting the seller’s interests by reducing the risk of prosecution against him and allowing buyers to negotiate with a better knowledge of the condition of the immovable;
• The DS (or DSD) form helps brokers do their work (and protects them), because they have a duty to verify and disclose the information they provide to the public about the immovable. This information will guide the broker in his duty to verify, inform and advise, this is why the seller retained his services;
• The seller shall eventually declare everything he knows about the immovable, because the building inspector and the buyer will require this. It’s better to make these declarations in advance than surprising the buyer who made a Promise to purchase, and risk that he withdraws or asks for a price reduction;
• This declaration will give a buyer confidence and encourage him to engage in the transaction without fear that the seller is hiding defects he is aware of.

The broker must reassure the seller by explaining to him that he needs to declare only the things he is aware of (to the best of his knowledge). He cannot poorly complete the questionnaire if he answers with transparency, based on what he knows.