When to recommend the consultation of an expert

The real estate brokerage practice brings its share of complex situations that may adversely affect the rights and obligations of the parties. This is why each broker must take into account his or her abilities and limits of knowledge, and recommend the consultation of a recognized expert when the protection of interests of one of the parties to a transaction so requires. This in fact what is provided in section 80 of the OACIQ Regulation respecting brokerage requirements, professional conduct of brokers and advertising.

When the services of a lawyer, notary, land surveyor or any other professional are required under the circumstances, recommending the use of their services as soon as possible in the transaction will quite often help avoid problems and delays. 

Although not exhaustive, the following list includes good examples of situations where the broker must be proactive in handling a situation and ensuring that it’s dealt with quickly:

• The property is subject to a cadastral renovation during the transaction
• The certificate of location indicates a non-compliance or mismatch
• An element of the Land Register raises questions about its scope
• It is difficult to make verifications in the Land Register because of the complexity in the lot’s title chain
• The transaction is part of an estate
• The property is subject to restrictions of public law:
  • Cultural property
  • Waterfront property
  • Located in a flood-prone area
  • In an erosion zone
  • In an agricultural Land
  • Part of a housing complex
• Property is subject to restrictions of private law:
  • Right of use
  • Surface right
  • Prior notice of exercise from a financial institution
  • Legal hypothec
  • Restraint order
  • Family home
  • Request for title transfer
• A sale made by a public or private body
• A sale made with an incapacity mandate
• Sale of an undivided co-ownership
• The seller or the buyer:
  • is a non-resident
  • got married abroad
  • (or his or her spouse) lives abroad
  • is in the process of union separation
  • passes away during transaction
• One of the parties is represented by power of attorney or by resolution
• One of the parties is under guardianship or protection mandate
• The mortgage creditor to be reimbursed has no establishment in Québec
• The buyer is a trust

These situations do not always cause problems. However, in some cases, the broker will have to deal with the problem quickly to ensure that the signing of the mortgage deed and the sale deed take place on the agreed dates. The broker should send the documents to the notary as soon as possible during the transaction and notify him of the problem so that he can start reviewing the file quickly.