C-73.1, r. 2 - By-law of the Association des courtiers et agents immobiliers du Québec

Section 85 Disposition versions

2012-09-01

85. In addition to the particulars provided for in Chapter III of the Act and those provided for in Chapter IV of the Regulation respecting the application of the Real Estate Brokerage Act (chapter C-73.1, r. 1), the form entitled “Exclusive Brokerage Contract – Sale of a Chiefly Residential Immovable”, provided for in subparagraph 2 of the first paragraph of section 26 of the Regulation respecting the application of the Real Estate Brokerage Act and applying to an exclusive brokerage contract between a natural person and a broker under which the broker undertakes to act as an intermediary for the sale of

(1)  part or all of a chiefly residential immovable containing less than 5 dwellings; or

(2)  a fraction of a chiefly residential immovable that is the subject of a declaration of co-ownership provided for in articles 1038 to 1109 of the Civil Code of Québec;

shall contain the following provisions:

(1)  concerning its object and term:

“Object and term of contract

The seller retains the services of the real estate broker to act as an exclusive intermediary for the sale of the immovable covered by this brokerage contract.

This contract terminates at 11:59 p.m. on.”;

(2)  concerning the summary description of the immovable:

“Summary description of immovable

Address: (number, street, locality) ____________________; The immovable, with constructions erected thereon and appurtenances, is designated as follows:

Cadastral designation: (number of lot, part of lot, subdivision) (name of official cadastre) measuring ____________________ , for an area of ____________________ . Hereinafter called “the immovable”.

If the immovable is held in co-ownership, complete the following:

The immovable is held in:

□ divided co-ownership

□ undivided co-ownership for a share equal to __________%.

The immovable held in co-ownership has parking space(s) (nos. __________) and ____________________ storage space(s) (nos. __________).”;

(3)  concerning the price:

“Price

The sale price asked is ____________________ ($__________), which shall be paid in full, in cash, upon the signing of the act of sale, unless another method of payment is provided for, as follows:

Any goods and services tax, Québec sales tax or other tax that may be imposed as a result of the sale of the immovable and to be collected by the seller under the applicable taxation laws shall be remitted by the buyer to the seller upon the signing of the act of sale.

The costs relating to the repayment and cancellation of any debt secured by hypothec, prior claim or any other real right affecting the immovable shall be borne by the seller where payment of such costs will not be assumed by the buyer.

The costs relating to repayment include any penalty exigible for early repayment.

Inclusions: included in the sale are:

(1) heating, electrical and lighting installations of a permanent nature;

(2) other inclusions:

Exclusions: excluded from the sale are:

(1) curtain rods and blinds;

(2) other exclusions:

(3) the following appliances are covered by a leasing contract: (indicate hereinafter the appliances, the lessors and other useful information)

In the case of an immovable held in divided co-ownership, there shall be no adjustments in respect of any fund whatsoever of the co-ownership.”;

(4)  concerning the date of taking possession and the date of signing the act of sale:

“Taking possession and signing of the act of sale:

Date or deadline for taking possession:

Date or deadline for signing the act of sale:

(5)  concerning the possible use of a multiple listing service:

“Multiple listing service

The seller shall indicate hereinafter, by initialling the appropriate box, his choice concerning the possible use of a multiple listing service or a similar service, for distribution to the members subscribing to such a service.

YES, I want the broker to use the multiple listing service of the real estate board of __________, or a similar service of that board or of (identification of organization), for distribution to the members subscribing to such a service;

NO, I do not want the broker to use a multiple listing service or a similar service, for distribution to the members subscribing to such a service.

Where the seller wants the broker to use a multiple listing service, the broker shall, without delay, send the information in this contract to the multiple listing service concerned.”;

(6)  concerning the real estate broker’s compensation:

“Real estate broker’s compensation

The seller shall pay to the broker, in the cases provided for in 1, 2 and 3 of this section, upon the signing of the act of sale, compensation of:

percent (__________%) of the sale price provided for in section (indicate the number of the contract provision establishing the sale price) or of another sale price to which the seller agrees in writing: or ____________________ dollars ($__________):

(1)  where a promise to purchase conforming to the conditions of sale set out in this brokerage contract (and in any amendments thereto) is submitted to the seller during the term of this contract and in fact leads to the sale of the immovable; or

(2)  where an agreement concerning the sale of the immovable is concluded during the term of this contract, whether through the broker or not, and in fact leads to the sale of the immovable; or

(3)  where a sale takes place, within 180 days following the expiry date of this contract, with a person who was interested in the immovable during the term of this contract, unless, during that period, the seller concluded with another real estate broker a contract stipulated to be exclusive for the sale of the immovable.

Nothing stipulated in section (indicate the number of the contract provision containing the text provided for in the first paragraph of this paragraph) shall be interpreted as restricting the broker’s right to obtain, where applicable, payment of any sums of money that may be due to him as compensation or damages under the ordinary rules of ordinary law, particularly, but without limiting the generality of the foregoing, where a sale does not take place because the seller voluntarily blocks it or otherwise voluntarily prevents the free performance of this contract.

Any goods and services tax, Québec sales tax or other tax that may be imposed as a result of services rendered by the broker shall be added to the compensation referred to in section (indicate the number of the contract provision containing the text provided for in the first paragraph of this paragraph) and shall be remitted to the broker by the seller in accordance with the provisions of the applicable taxation laws.”;

(7)  concerning the declarations by the seller:

“Declarations by the seller

The seller declares that, to the best of his knowledge, the information contained in this contract is accurate.

The seller also declares that, unless stipulated otherwise hereinafter:

(In view of the importance of the following declarations, the seller should ensure that each of the following paragraphs reflects as accurately as possible the situation as he knows it and should, where required, make any amendments or additions that may be required to achieve that result).

(1)  he is not aware of any factor relating to the immovable and liable to significantly reduce the value thereof, reduce the income generated thereby or increase the expenses related thereto, except:

(2)  he has not received any notice from a competent authority indicating that the immovable does not conform to the laws and regulations in force, or any notice from an insurer, following which he has not fully remedied the defect declared in either notice, except:

(3)  he is not a non-resident of Canada within the meaning of the provincial and federal taxation laws;

(4)  the municipality concerned provides water and sewer services to the immovable;

(5)  he is the sole owner of the immovable or is duly authorized to sign this contract and to accept any promise to purchase relating to the immovable;

(6)  the immovable is not the subject of a brokerage contract with another broker, of a promise to purchase, exchange or lease, or of a lease containing a right to preference or a right of first refusal in favour of a third party;

(7)  to the best of his knowledge and subject to what the usual verifications to be carried out by the broker or by any person acting on his behalf or on behalf of a prospective buyer may reveal, the immovable is free of any debt, prior claim, hypothec, servitude, real right, charge or other restriction of private law other than the usual and apparent servitudes of public utility, except:

(Indicate debts first, followed by the other restrictions of private law that may affect the immovable, specifying the nature of the right, the holder of the right, and any other useful information.)

(8)  to the best of his knowledge and subject to what the usual verifications to be carried out by the real estate broker or by any person acting on his behalf or on behalf of a prospective buyer may reveal, the only restrictions of public law that are exceptions to ordinary law and that may affect the immovable are:

(Indicate restrictions of public law that are exceptions to ordinary law and that may affect the immovable under, for example, but without limiting the generality of the foregoing, municipal zoning and subdivision by-laws, the Cultural Property Act, the laws and regulations relating to environmental protection …)

(9)  that, as soon as he becomes aware thereof, he will supply the broker with any additional information that, to the best of his knowledge, is liable to reveal a restriction of private law or a restriction of public law that is an exception to ordinary law, that affects the immovable and that is not declared under the terms of this contract;

(10)  in the case of an immovable under lease, the seller makes the following declarations:

(a)  the rents bring in at least ____________________ dollars ($__________) per year and the leases expire on

(b)  no notice liable to amend the leases has been sent by either of the parties and no proceedings are pending before the Régie du logement;

(c)  he has not received any notice from a lessee or from the spouse of a lessee to the effect that the immovable or part thereof is used as a family residence.”;

(8)  concerning the obligations of the seller:

“Obligations of the seller

During the term of this contract, the seller undertakes not to, directly or indirectly:

(1)  offer the immovable for sale on his own or through a person other than the broker;

(2)  become party to an agreement concerning the sale, exchange or lease of the immovable otherwise than through the broker.

Where requested by the broker, the seller shall supply to the broker the following documents in his possession: purchase contract and any other title of ownership, real estate tax receipts, lease, loan and hypothecary security contract, certificate of location (or an extract therefrom describing the divided co-ownership portion), plan, service contract, proxy, the co-ownership’s latest financial statements, declaration of co-ownership including the by-laws of an immovable held in co-ownership and, generally, any documents in his possession attesting to the validity of his title and establishing any restriction of private law and any restriction of public law that is an exception to ordinary law and that may affect the immovable, and any documents that may be required for any adjustments to be made at the time of the sale.

The seller gives the broker the exclusive right:

(1)  to show the immovable at any reasonable time, with any appointment being arranged directly with the occupant of the premises. The broker may allow other brokers to exercise that right in whole or in part;

(2)  subject to the restrictions set out hereinafter, to do any advertising that he considers appropriate, such as posting a sign indicating that the immovable is for sale or is sold. The broker may allow other brokers to exercise that right in whole or in part.

The right to post a sign is subject to any applicable regulations or by-laws, such as municipal by-laws or co-ownership by-laws;

(3)  to obtain from the hypothecary creditor any information or documents concerning his hypothecary loan and, for that purpose, the seller authorizes the hypothecary creditor to supply the broker with that information or those documents.

Subject to the provisions of the following paragraph, the immovable is offered for sale subject to the real rights, charges and other restrictions of private law affecting the immovable, particularly, and without limiting the generality of the foregoing, those referred to herein and those that the usual verifications may reveal.

The seller undertakes, should the immovable be sold, to free the immovable of the prior claims, hypothecs or other real rights securing the payment of a debt affecting the immovable, unless the buyer has assumed the reimbursement of the debt thus secured.

The immovable is also offered for sale subject to any restriction of public law that is an exception to ordinary law and that affects the immovable and to any violations of such a restriction, particularly, and without limiting the generality of the foregoing, any restriction of that nature referred to herein or that the usual verifications may reveal.

The seller shall also supply the buyer with a copy of the act of acquisition of the immovable and with a copy of the earlier titles in his possession. Where the immovable is held in divided co-ownership, the seller shall also supply the buyer with a copy of the declaration of co-ownership, including the by-laws of the immovable.”;

(9)  concerning the obligations of the broker:

“Obligations of the broker

In accordance with standard practice in his field, the broker undertakes

(1)  to offer the immovable for sale honestly, diligently and competently;

(2)  to submit to the seller, as soon as possible, any promise to purchase relating to the immovable covered by this contract;

(3)  to inform the seller verbally, on a regular basis, of the state of performance of this contract;

(4)  to check beforehand all facts or information mentioned in advertising relating to the sale of the immovable covered by this contract;

(5)  to send the seller a copy of any document or sheet describing the immovable and liable to be sent to any prospective buyer;

(6)  to obtain the seller’s written consent before advertising a sale price other than the sale price provided for in this contract;

(7)  not to use the word “sold” in any advertising, including advertising on a sign, unless a promise to purchase has been accepted and all the conditions of that promise, except the signing of the act of sale before a notary, have been fulfilled.

It is understood that any sign posted on the immovable must be removed as soon as this contract expires;

(8)  to send the seller proof that the information relating to this contract has been sent to a multiple listing service or to a similar service agreed to, where the seller has requested such a service;

(9)  to inform the seller in writing, without delay, of any interest that he owns or plans to acquire, whether directly or indirectly, in the immovable covered by this contract;

(10)  to inform the seller in writing, without delay, of any compensation, other than that referred to in this contract, that he has received or hoped to receive in connection with the performance of this contract;

(11)  to inform the seller in writing, without delay, that he is also representing the buyer, for compensation, where a brokerage contract with the buyer exists;

(12)  to fulfil the following specific undertakings:

(For example, any promise, guarantee or other advantage offered by the broker to the seller or buyer of the immovable, for consideration or free of charge …)

(Indicate below the advertising that the broker undertakes to do in respect of the immovable, at his expense, and any guarantee or other advantage offered by the broker to the seller or buyer of the immovable, for consideration or free or charge …)

(13)  to fulfil his undertaking to purchase the immovable under the terms and conditions set out hereinafter and, in such case, not to claim, whether directly or indirectly, any compensation for doing so;

(Where the broker undertakes to purchase the immovable, the terms and conditions of that purchase must be set out hereinafter.)

(14)  to notify the seller without delay, where applicable, that he has authorized another broker to do any advertising agreed to in this contract and relating to the sale of the immovable;

(15)  to notify the seller in writing, without delay, that the agent or broker referred to in this contract as acting for and on behalf of the listing broker is no longer authorized to act on his behalf or is not longer able to act, and to provide the seller with the name of another real estate agent or affiliated real estate broker designated to replace him;

(16)  to notify the seller in writing, without delay, whether or not he agrees to cancel this contract, at the seller’s request, where the real estate agent or the affiliated real estate broker designated in this contract is no longer employed by him or authorized to act on his behalf;

(17)  to notify the seller in writing, without delay, if his real estate broker’s certificate is suspended, cancelled or not renewed or if he is otherwise unable to continue to act as a real estate broker; and

(18)  not to request any compensation from the seller where the immovable is sold to any of the persons designated hereinafter within (indicate the number of days) days following the signing of this contract.”.

O.C. 1865-93, s. 85.