Resolutory clause or 180-day clause

Syndic’s column

One of the main advantages of the Exclusive brokerage contract – Sale is the protection granted to brokers by the resolutory clause (the 180 – day clause). Indeed, the clause 7.1 (3) of this form states that a broker is entitled to remuneration if a sale takes place within the 180 days following the expiry date with a person interested in the immovable throughout the term of the contract. The only exception to this principle is that if during that period, the seller concluded, in good faith, with another broker or agency, an exclusive contract to market the immovable. It should be noted that this principle remains also applicable to brokerage contract forms regarding the sale of immovables held in co-ownership.

How do we define a “person interested in the immovable”?

Generally, in residential real estate brokerage, the person interested in the immovable is the one who visited it. The broker must speak to this person to inspire his interest in the immovable. The fact of simply providing a description sheet to a prospective buyer or giving him the address to be able to pass in front of the property is not enough to conclude that this person was interested in the immovable.

Is the 180-day time period valid for a promise to purchase accepted or a transaction notarized within this time frame?

The 180-day time period starts from the end or the termination of the exclusive brokerage contract. If during this period, a promise to purchase is presented by an individual who has been interested in the immovable during the period covered by the exclusive brokerage contract and the seller accepts, thus confirming the agreement of wills between the buyer and the seller, remuneration might be claimed from the seller by the agency or broker acting on his own account who represented the latter.

Sound practices

In a situation where a contract binding a broker to a seller is terminated and that a transaction with an individual who has been interested in the immovable is being prepared, here is what you need to remember:

1. The buyer’s broker must contact the seller’s broker to inform him about the situation. He must also inform him that the buyer he is representing is interested and wishes to visit the immovable again, or has a signed promise to purchase to present.

2. The seller’s broker will communicate with his client to inform him of the situation and his contractual obligations. Otherwise, the buyer’s broker will communicate directly with the seller to give him this information and carry on with his transaction.

However, remember that it is prohibited (since June 10, 2022) to represent both the buyer and the seller in the same transaction (see section 29.1 of the Real Estate Brokerage Act). Even before the introduction of the double representation prohibition, the broker representing a buyer commits a breach when he enters into a new brokerage contract to sell with no intention to make a real widespread marketing.

It is important to remember that under any circumstances, it is the good faith that should guide the broker.