Who completes the form Declarations by the seller of the immovable and how can it be amended?

Many real estate brokers are wondering if it is a good idea to let the seller fill out the form Declarations by the seller of the immovable (DS) himself, or if the broker should do it as a matter of course. The OACIQ recommends that the form be filled out by the broker, with the seller’s assistance. There are several arguments in favour of this:

• The broker is the professional who is familiar with the form. He knows its content, the terminology used and how to fill it out to accurately reflect the condition of the immovable;
• The DS form is a mandatory annex to the various mandatory residential brokerage contract forms (less than 5 dwellings), including immovables held in divided or undivided co-ownership, which are also completed by the broker;
• Because he may not understand the full impact of his declarations, a seller who completes the DS form himself may include information that does not accurately reflect reality (for example stating that the “roof was completely”, redone whereas only the roof covering was replaced). The seller could be held liable, as could the broker for providing inaccurate information.

The DS form should therefore be completed by the broker, with the seller’s help, based on the information and documents provided by the latter. This should be done at the time of signing of the brokerage contract. The seller must answer the questions on this form to the best of his knowledge and give the broker a copy of all substantiating documentation (work done on the immovable, equipment installed, invoices, etc.).

To amend the declarations made by the seller on the DS form, the broker must use an Amendments (AM) form. The changes must be entered on this mandatory form and the form signed by the seller. Clause “M1 – Other” of the AM form must be completed, making reference to the DS form it amends. Remember that the AM form used to amend the seller’s declarations must be attached to the DS form and given to any prospective buyer. In addition, the seller’s broker, who has indicated on the detailed description sheet that a DS form exist, must specify on the sheet that the DS form has been amended by an AM form, for example: DS 12345 amended by AM 67890.