The 180-day clause
Questions and answers

Mrs. Lalumière, a real estate broker with three years of experience, is making a search to prepare a comparative market analysis on a property. While doing so she discovers that one of her former listings has been sold directly by the owner. She checks the land register and sees that the buyer is a person to whom she had showed the property during the course of her exclusive brokerage contract.

Looking through the directory of articles on synbad.com, she finds this article Resolutory clause or 180-day clause. It states that according to clause 7.1 (3) of the residential exclusive brokerage contract to sell (EBCS), the agency or broker acting on his own account is entitled to remuneration if a sale takes place within 180 days following the end  date or termination of the contract with a person who was interested in the immovable during the period of the contract if, during that period, the client did not enter, in good faith, into an exclusive contract to sell the immovable with another agency or broker. She continues her search on synbad.com and also finds this article The real estate broker's right to compensation after the end date or termination of the exclusive brokerage contract.

Mrs. Lalumière realizes the scope of this clause, which exists to prevent a broker who worked to interest someone in purchasing a property from being denied their remuneration because the sale takes place after the term of the contract.

Armed with this knowledge, Mrs. Lalumière decides to inform her agency executive officer about the situation. As a capable and thorough manager, the AEO assures Mrs. Lalumière that he will take the necessary steps to ensure that the agency gets its due. He then gives her the following list of questions asked to the Info OACIQ by his agency’s brokers regarding the 180-day clause:

I. Questions from brokers representing the seller

Mrs. Rose Latulipe, broker
My residential exclusive brokerage contract to sell (EBCS) ended a month ago. An unrepresented buyer, who had visited the property while my contract was in effect, comes back and wants to make a promise to purchase. Do I need to sign a new EBCS?

Answer from the information agent
No. Since the visit took place during your contract, clause 7.1 (3) of the form protects your right to remuneration in case of sale to this buyer. In this case, it is not necessary to sign a new BCS with the seller. You can complete the promise to purchase for this buyer, while making sure to treat him fairly.

Mr. Salim Malouf, broker
My EBCS ended, and during the 180-day period that followed my client sold the property to a buyer to whom I had showed the property while my exclusive contract was in effect. My seller had not signed a new exclusive brokerage contract with another agency. Am I entitled to remuneration even if the promise to purchase did not go through me?

Answer from the information agent
Yes. As long as a sale takes place within 180 days following the end date or termination of the exclusive contract with an interested person, you can check with your agency executive officer to see if he wants to take steps to claim the remuneration, even if there was no promise to purchase presented through you. Generally, in residential real estate brokerage, the “person interested” in the immovable is the person who visited it (see this article).

Mrs. Hélène Dutitanic, broker
I have an exclusive brokerage contract to sell on a commercial property. I used the recommended form BCG. My client sold directly to a buyer to whom I had showed the property during my contract. The seller did not sign a new exclusive brokerage contract with another agency. Am I entitled to my remuneration, since the sale took place within 200 days following the end date of the BCG?

Answer from the information agent
Yes, since the sale took place within 365 days following the end date of the brokerage contract and the seller did not enter in good faith into an exclusive contract with another agency or broker.

Mrs. Célestine Dorian, broker
I had signed a BCG to sell a vacant residential lot. My contract ended and, while doing a search, I discovered that the seller had sold directly to a buyer to whom I had showed the property. Is my remuneration protected for 180 or 365 days?

Answer from the information agent
Your remuneration is protected for 365 days, because this is a case where the use of the BCG was possible since it concerned the sale of a vacant lot which, obviously, did not include a dwelling. According to section 23 of the Real Estate Brokerage Act, only when the exclusive brokerage contract concerns the sale of part or all of a chiefly residential immovable comprising less than five dwellings is there a requirement that the sale take place within 180 days following the end date of the brokerage contract to entitle the broker to remuneration. This being said, if an EBCS had been used, even if not mandatory, this period would have been as stated in the contract, i.e. 180 days (see this article).

II. Questions from brokers representing the buyer

Mrs. Dolores Gauty, broker
I had showed my buyer a property listed by another broker. Since then, the EBCS on the property has ended. The buyer I represent would now like to present a PP. Can I do business directly with the seller and sign an exclusive BCS for this buyer?

Answer from the information agent
No. Since you are representing the buyer, you may not sign a BCS with the seller. Double representation in the residential field is forbidden since June 10, 2022. If this is happening during the 180-day period following the end date of the exclusive BCS, the remuneration sharing terms set out in the BCS will apply. You must contact the seller’s broker without delay to inform him of the situation. In this case, you must not contact the seller directly.

Mr. Laurent Davant, broker
I had a BCP with my buyer, in which clause 3.1 stipulated that the search would be for a property located on Montreal’s South Shore. We visited a property sold directly by its owner (FSBO) in this area. My buyer bought the property directly from the seller after the end date of my exclusive contract. What should I do?

Answer from the information agent
Like the exclusive BCS, the exclusive BCP includes a 180-day clause (clause 6.1 [2]): therefore, if a purchase concerning an immovable referred to in clause 3.1 occurs within 180 days following the end date or termination of the contract by a buyer who was interested in this immovable during the term of the contract, your remuneration is protected, that is, as long as the buyer did not sign a new BCP in good faith with another agency. If the latter is not the case, talk to your agency executive officer about taking the necessary steps to claim the remuneration.