Real Estate Brokerage Act

A: There can be only one executive officer per agency.

A: Collecting file opening fees are allowed. However, such fees must not be a roundabout way of collecting advance remuneration and making use of it before any services are even rendered. File opening fees must actually serve to cover any administrative fees related to opening the file in question, and not as a form of remuneration for the licence holder for services that will be rendered eventually.

In fact, the OACIQ designed the Annex RC – Remuneration and Costs, which allows licence holders to indicate other methods of remuneration other than that provided in different brokerage contract forms and, if applicable, to be paid specific costs by the seller, lessor or buyer.

This form must be used, where appropriate, to supplement the “REMUNERATION (PLUS TAXES)” section of a brokerage contract for the purchase, sale, exchange or lease of a chiefly residential immovable containing less than 5 dwellings.

A: Yes, collecting remuneration advances is allowed. However, any amount collected as remuneration advance must be deposited in the licence holder’s trust account and cannot be withdrawn until the services described have been rendered and billed to the client.

However, in residential matters, the collection of remuneration advances must be indicated in the Annex RC – Remuneration and Costs, which is mandatory to supplement the “REMUNERATION (PLUS TAXES)” section of a brokerage contract for the purchase, sale, exchange or lease of a chiefly residential immovable containing less than 5 dwellings

A: You are entitled to remuneration, but don't forget that the utmost transparency is required. The golden rule is without a doubt to avoid placing yourself in a conflict of interest (sect. 2 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising).

In concrete terms, when a broker represents their spouse in a sale, there may be doubt as to whether this broker can provide fair treatment to the buyer. It is crucial to make sure that a notice of disclosure is given to the buyer at the first opportunity to inform him of the relationship.

By using the notice of disclosure recommended by the OACIQ, you are discharging your obligation to inform the buyer that you cannot represent him and that he is entitled to be represented by the broker of his choice.

A reminder that when the broker or his spouse acquires an interest in an immovable or enterprise, they are specifically prohibited from claiming remuneration (sect. 23 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising). Read this article for more details.

A: Yes. Under section 46 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising, the buyer’s broker must present to his client properties that correspond to his needs and criteria. He must inform him of the reasons for selecting a property.

In addition, under the Brokerage contract – Purchase – Chiefly residential immovable containing less than five dwellings excluding co-ownership (clause 6.2), the broker must, before his client makes an offer to purchase an immovable, inform the client that the amount of remuneration offered by another agency or broker may vary from one agency (broker) to another and from one property to another. It can be lower than the remuneration agreed upon in the brokerage contract, but it can also exceed the remuneration rate agreed upon in the brokerage contract.

The low remuneration sharing rate offered to the buyer’s broker cannot be a criterion in selecting properties. Properties must be presented based on the client's needs, interests and criteria and not on the broker's interests. Read this article for more details.

A: Yes, as long as the buyer has been informed of the consequences and has authorized the licence holder in writing to do so. The regulation states that a deposit must be recommended and that any such deposit received by the licence holder must be placed in the licence holder's trust account (sect. 43 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising). If the buyer refuses that the deposit be deposited in the licence holder’s trust account, he must understand that he loses the protection provided by the Real Estate Brokerage Act.

The deposit clause provided in the various promise to purchase forms must be amended to reflect this situation, if applicable.

A: Exceptionally, if the broker receives a promise to purchase before the property is listed in the Multiple Listing Service, he must notify his selling client and present him with this promise to purchase.

In this case, the broker’s duty to advise is very important since the seller must take an informed decision and understand that his property did not enjoy maximum visibility offered by the Multiple Listing Service.

If the seller still wishes to accept the promise to purchase before listing the property, the broker should get a written notice from the seller to this effect. 

A: Check out this article to learn more.

A: Check out this article to learn more.

The agency should first issue the notice to the seller under a brokerage contract. However, the broker may issue the notice, but the agency should be aware of this. Good faith should guide the behaviour of the broker who should first discuss and agree on this with his agency executive officer.

Should the broker act without the knowledge of his agency executive officer, the notices will remain valid from a public perspective. Indeed, the client’s choice must always be respected, regardless of how the notice is made (whether or not on the agency’s letterhead paper).

The agency executive officer may provide in advance the rules to be respected regarding the transmission of the agency change notices in his internal governance rules or in his employment contracts. In the absence of such a provision, this does not however mean that the agency has no recourse against a broker who would have acted without its knowledge. The OACIQ cannot decide on this issue, because it falls within the agency’s internal governance.

For more information, please click the following links:

• Standard Notices
• Who owns an agency’s brokerage contracts?

A: Yes. However, the transaction will be considered as part of the residential field of practice if the immovable, though located in a location zoned agricultural, is used for chiefly residential purposes, because the agricultural aspect would then be secondary (e.g. a small farm that is essentially used as a residence for its occupants, rather than as a farming operation).

A: The only limitation to remuneration sharing in the case of a commercial transaction, including the sale of a business, is that you cannot share with someone who is illegally engaging or attempting to engage in real estate brokerage activities. 

Referring a client to a broker regarding the sale or purchase of an enterprise that does not include an immovable, or of which the market value is not mainly comprised of immovable property, does not constitute a brokerage act within the meaning of the Real Estate Brokerage Act. The Act excludes this type of enterprise sale from its application. Therefore, remuneration sharing is allowed with someone who refers a client under these very specific circumstances.

A: This stipulation should only appear in the property description and not in the brokerage contract, in view of the regulation that provides for this stipulation only in the property description and the fact that it is the buyer who must benefit from such information.

In fact, this stipulation is automatically recorded on the detailed description sheet by the multiple listing services of various real estate boards. For any other type of description sheet, you must add this stipulation manually.

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• The seller remains free to refuse a promise to purchase even if it meets all the conditions in the brokerage contract (article 122377)

A: No, unless special circumstances have been identified, the indirect interest is very tenuous.

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• The agency’s and broker’s duty to disclose (article 122703)

A: No. The brokerage contract is confidential. The OACIQ has mechanisms that will enable it to ensure that the rate offered is respected (the Inspection Department, for example, will be able to detect a problem in this regard and refer it to the Syndic).

A: A holder of a licence restricted to a particular field of practice (e.g.: residential or commercial) may direct a client to a licence holder with no restrictions (full service) or to a licence holder restricted to another field of activity. The broker to whom the client is directed can then share his compensation with the licence holder who sent him the client.

In this case, the broker to whom the client has been directed shall disclose this in writing to the party he represents and keep a copy of the notice given to this effect.

A: No, sharing a co-listing does not allow a licence holder to act outside of the field of practice to which he is restricted by his licence. Whether for a co-listing or otherwise, the brokerage contract cannot provide that a licence holder acts as intermediary in a brokerage transaction that falls outside his or her field of expertise.

For mixed-use immovables containing less than five dwellings, it is the area used for commercial purposes versus the one used for residential purposes that will determine in which area of practice the broker must operate to be authorized to act as an intermediary in this transaction. For example, for an immovable whose surface area is more than 50% residential, it is a broker restricted to residential brokerage (or a full-service broker) who must act as intermediary. However, it would be a good practice to enlist the services of someone with the required expertise, if necessary.

In fact, in accordance with section 73 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising, the broker must “take into account his or her aptitudes, limits on knowledge and means available.”

A: NO. A licence holder must verify the right to practice of a person presenting himself as a broker only if he has doubts about this right to practice. Such verification may be made by asking the person to show his licence, which the person is legally bound to do, or by consulting the OACIQ’s online register of licence holders at oaciq.com

A: The seller’s broker is required to present to his client any Promise to purchase that has been made to him, even if the person who presented it on behalf of the buyer is not authorized to do so. However, the seller’s broker may not continue to deal with that person, but must pursue the transaction by acting as the seller’s broker and by treating the buyer  fairly (unless the buyer has another broker represent him).

The seller’s broker shall then inform the seller and the buyer of the situation, namely the receipt of a Promise to purchase through an unauthorized person and the fact that he represents the seller and treats the buyer fairly. It would also be desirable for the listing broker to inform the OACIQ to ensure that the illegal practice situation will not be tolerated.

A: YES, the brokerage contract will need to be amended using the mandatory form Amendments (Amendments form). The seller's signature on the Amendments form will then be required, since it represents an amendment to the brokerage contract.

However, in matters other than residential, when the brokerage contract form does not contain a remuneration sharing clause and that the remuneration sharing was disclosed by a notice from a licence holder (ex.: by a simple written notice given to the seller), a change in the remuneration sharing being offered need not be indicated in the brokerage contract and the seller's signature is therefore not required.

Nevertheless, in accordance with section 40 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising, a licence holder must inform his client in writing of the changes to the terms of remuneration sharing as well as the consequences the proposed terms entail. It is also recommended that the licence holder obtains from his client an acknowledgement of receipt of this notice.

A: No. For purposes of the application of the Real Estate Brokerage Act, only the 'detailed report – broker' and the 'detailed report – client' constitute a description sheet under the meaning of the Act and must therefore contain the information stipulated in the regulations. The other reports are considered promotional tools.

A: No. The seller's contact information only has to appear on the 'detailed report – broker'. Indeed, this document is used to fill out the Promise to purchase and must therefore contain all the information necessary to do so adequately. Since the other reports are not used for this purpose, the seller's contact information need not appear on them.

A: Under section 20 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising (RBR), the broker cannot represent the lessee who is interested in the immovable or enterprise in which he holds an interest. Except for the conclusion or renewal of a lease on a residential immovable, the holder must without delay inform the lessee in writing that the holder is not acting as a representative and that the person may seek representation by a licence holder of his or her choice. Such notice must be kept on record.

A broker who leases an immovable or enterprise in which he holds a direct or indirect interest does not have to complete a Notice of disclosure - Purchase-Sale-Exchange under section 18 of the RBR.

If there is no intermediary in the brokerage contract and the broker is acting for himself (which is not recommended due to potential conflicts of interest), he will not be able to claim compensation.

To be able to carry out real estate brokerage activities in Quebec, including leasing brokerage, a broker or agency from another jurisdiction must obtain a licence or special authorization from the OACIQ.  For more information, read the article Brokers from outside the province: How to get the right to practise in Québec.

Although leasing brokerage is no longer reserved for OACIQ licensees, a 2021 Act (Act to amend various  legislative  provisions  mainly  concerning  the  financial  sector, SQ 2021, c. 34) stated that a real estate brokerage licensee from another jurisdiction cannot engage in leasing brokerage activities (residential or commercial) in Quebec without a licence or special authorization from the OACIQ. Failure to comply with this requirement could result in penal proceedings for the illegal practice of real estate brokerage in Quebec.