When the real estate broker is an employer

What can be done to meet brokers' needs while respecting the legal framework?

Secretary (non-licence holder) or assistant (licence holder)

Two types of assistants are generally sought by brokers. Some want someone who can provide secretarial services without holding a licence, while others have more need of an assistant - a person who can perform real estate brokerage acts, which is reserved for OACIQ licensees.¹

Thus, a broker who requires additional help to conduct telephone or door-to-door solicitation, participate in open houses, open a door to a collaborating broker, draft a promise to purchase or any other real estate brokerage contract or form, whether drafted on OACIQ electronic forms or not, or to carry out a real estate transaction in his absence, such as receiving clients, must necessarily enlist the services of a licence holder (section 3 of the Real Estate Brokerage Act).

This obviously will not be the case for an assistant who is exclusively assigned to office tasks, such as putting a sign, sending documents to the notary, taking pictures, entering data (e.g. on a listing sheet), printing and reviewing transactional documents, confirming the broker's appointments or answering telephone calls without providing information on the immovables, that is, without engaging in representation.

However, it’s important to remember that task support or office technical assistance may incur the broker's liability. Indeed, an incorrect data entry or any other error made by the secretary, on the property’s listing sheet for example may lead to a professional liability claim, in which case the FARCIQ could be called upon to examine it. If he delegates clerical tasks to a third party, the broker must verify their accuracy according to his ethical obligations.  Failure to do so may result in the Syndic's Office filing a disciplinary complaint.

A broker cannot employ another broker

Only a real estate agency may employ or authorize to act on its behalf a natural person holding a real estate broker's licence. The OACIQ regulations prohibit a real estate broker from employing another broker. In order not to violate the Real Estate Brokerage Act and its regulations, a broker should not hire a licensee and pay him directly under the pretext that he is only performing secretarial duties.

Legally, a real estate agency is responsible for all real estate transactions carried on in its name. Section 70 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising states that an agency "must take all reasonable measures to ensure that the persons employed by or authorized to act on its behalf comply with the Real Estate Brokerage Act (R.S.Q., c. C-73.2) and the regulations made under it.”

The real estate transactions that the licensee’s assistant concludes are on behalf of his agency, as is the rule for any broker. Thus, an assistant (licence holder) of a broker drafts contracts and enters into transactions with clients as the agency's representative but obtains his compensation according to the contractual agreement signed between his agency (hourly rate, compensation percentage, etc.) and the broker to whom he provides exclusive assistance.

It should be noted that the broker, like the assistant, must sign only his name, and not "for and on behalf of" another agent as has been seen in some cases. Moreover, when the assistant (licence holder) signs as a witness, he signs his name on his own behalf.

In the case of a network of agencies with sub-franchising, if the assistant is employed by the franchisee and not by the sub-franchisee, the brokerage contracts will have to be jointly listed by the two agencies. The compensation resulting from the transactions will have to be treated as compensation shared between separate agencies.

¹  Section 4 of the Real Estate Brokerage Act