Wednesday, September 8, 2021

Member organizations like ours shouldn’t take fining their members lightly. It’s the Professional Conduct Committee that decides guilt or innocence, and then decides a suitable punishment on behalf of the Board and all its members (if there’s to be one).  

In the end, the cheque gets written in favour of the Board, so it isn’t a big leap for members to think, “the Board fined me.”  

An association, like the Board, can only do so much to get members to do what members collectively want. We can write about an issue and hope the communication takes root. Or, we can harness the formal complaint process and start issuing fines. We’ve done both.  

But some issues still drag on. With 14,000 members, it’s inevitable that there are going to be some who don’t get the message. That’s a pity because I can’t help feeling some sympathy, maybe tinged with a bit of aggravation, for a member who is facing a fine because of a rule breach the Board has written about more than once. 

"Sometimes the Professional Conduct Committee asks me to write an article to emphasize or clarify (or both) the latest issue needing a bit of amplification. A perennial favourite is Direction Regarding the Presentation of Offers (DPRO)/Delayed Offers, namely, 'the seller’s agent sold the damned property before I could get my foot in the door or present an offer.'"

Fines for breaches of this protocol now run as high as $20,000 with a side order of courses and member shaming so, a bit of clarification wouldn’t be amiss, I think. 

We’ve had a few complaints on this subject lately. Again. I thought we’d driven a stake through the heart of the DRPO complaints we’d been getting. But no, like whack-a-mole, the problem keeps popping up. With the amending of Rule 4.02 in 2018 and 2019, I’d even started to think that we were all on the same page on this requirement, but apparently not.  

In a recent meeting, committee members discussed Rules of Cooperation 3.22(c) and 4.02(b):  

3.22 (c) Member Access to Listed Properties

In the event the Listing Brokerage received a written offer during a “no show” period, the Listing Brokerage shall, prior to presenting the offer, inform all Cooperating Brokerages that have requested a viewing appointment, or who have requested in writing to be kept informed about offers, that an offer is scheduled for presentation.  

4.02 (b) Presentation of Offers

When an MLS® listing indicated “No offers until (a specified date or time)”: 

(i) the Listing Brokerage must maintain a record of all Cooperating Brokerages who have requested in writing to be kept informed about offers or possible changes to the published offer presentation and time; 

(ii) in the event the Listing Brokerage receives a written offer and the seller wishes it to be presented prior to the published presentation date and time, the Listing Brokerage must obtain a revised Direction Regarding Presentation of Offers form, signed by the seller, and must update any such instruction that has been published in the listing and posted as an associated document, all prior to presenting the offer; and   

(iii) prior to presenting the offer, the Listing Brokerage must notify all Cooperating Brokerages that have requested in writing to be kept informed, that an offer will be presented earlier and must give those Cooperating Brokerage equal and, where practical, concurrent opportunity to present their offer. 

Both these rules describe the protocols to follow if an earlier showing or presentation than what is stated in the listing is to occur. It’s worth pointing out that there is a variation on each rule’s requirements on this point, which is why the Professional Conduct Committee suggested I explain potential differences without a distinction, as they say. 

So here’s the deal: 

If you’re a buyer’s agent with a booked appointment to show a property after a no-showing period has ended, you’re entitled to get a notification from the seller’s agent if an offer is going to be presented during the no-showing period. Getting that notification will enable you to also make an offer, perhaps subject to viewing, if desired. The seller’s agent isn’t a mind reader, so if you haven’t made an appointment but are simply waiting out the no-showing period, and haven’t asked in writing to be alerted about offers, you can’t expect to be notified. 

If you’re a buyer’s agent waiting patiently until just prior to the published presentation date (supported by a DRPO form and suitable heads-up in R/Remarks) before writing/submitting an offer, you’re entitled to get a notification from the seller’s agent that an offer presentation will occur earlier than published only if you have asked in writing to be kept informed. The same seller’s agent who couldn’t read your mind about your intention to request a showing can’t read your mind about your intention to slip in an offer right at the published deadline. The “in writing” requirement could be met via text, Touchbase, email, or means. A verbal “Let me know if I can present my offer earlier” can easily be missed or forgotten and simply won’t cut it.  

There. Clear? I thought so.