Disclaimer: This information is intended to be of a general nature. Please do not rely on any of the content as being a professional tax or legal opinion and seek your own independent advice.
In the process of selling real estate the Agent is normally acting for and on behalf of the seller and is obliged under an industry Code of Conduct to follow the sellers’ instructions unless it is unlawful or unethical to do so. When acting for the seller, the agent is also obliged under the same Code to be “fair to all other parties” which includes the buyer.
But what does “being fair” really mean in the context of a property transaction? The answer to this question has several shades of grey but certainly, the agent is obliged to disclose any “material fact” about a property prior to a contract to buy being formed. Material facts are loosely defined as being bits of information that may cause a buying decision to alter its course. This is tricky as what might be considered unimportant to one buyer may be of critical importance to another.
Being fair includes answering questions honestly and providing general advice but in my opinion does not extend to suggesting which conditions a buyer may want to include in an offer to purchase. It is in the seller’s interest to receive an offer with as few conditions as possible, therefore an agent who suggests to a buyer they ought to include, for example, a building inspection clause might be acting against his or her legal obligations.
Agents approach this matter differently. Many will suggest a series of standard conditions that a buyer should include with their offer and whilst, this may be outside the agent’s mandate, it is common and an industry accepted approach especially when dealing with inexperienced buyers. Conversely, some agents will simply ask the question, “Do you wish to include any other conditions with your offer?” and leave it at that.
Either way, buyers are advised to be well prepared before making an offer to purchase. You ought not assume the Agent is there to provide guidance as to what conditions might suit your needs. Certainly, asking the agent pertinent questions about the property’s age and condition and if the Seller has, for example, undertaken any improvements during their tenure ought to receive an honest answer. Most importantly, predetermine what special conditions will suit your individual needs and ensure they are drafted in a manner that provides the contractual protection you are seeking.
Be especially vigilant immediately after settlement if you want to retain some protections in the contract should you find that not all is as it should be at settlement. For example, a buyer typically has only 10 business days after settlement to properly notify the seller seeking redress about the dishwasher they said worked did, in fact, leak dirty water over the kitchen floor during the rinse cycle.
By Hayden Groves
REIA Deputy President