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These FAQ's are provided for general information only. They are not intended to substitute for legal advice. Please select a topic from the drop down box below.

On June 23rd, 2008 new federal money laundering and anti-terrorist financing regulations came into effect that require real estate agents and brokers to collect personal identification information from buyers and sellers.

Your REALTOR® requires this identification information to comply with the law. It is the federal Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) that requires financial institutions and real estate agents, among other professionals and services covered by the legislation, to identify customers who conduct financial transactions. These include depositing funds or buying and selling real estate. The Act also requires real estate agents to keep these identification records for five years.

Additional information about this federal initiative, the federal legislation, and the role of FINTRAC in the reporting system is available at www.fintrac-canafe.gc.ca or call toll-free: 1-866-346-8722.

BUYER AGENCY CONTRACTS

Q: What is a buyer agency contract?

A: In Manitoba, it is generally understood that whether selling or buying, the salesperson and his/her real estate firm that you engage and rely on for representation has formed an agency relationship with you whereby the agent/client duties arise. It is assumed, that unless the parties otherwise agree, the salesperson and the firm representing the seller is the seller's agent and the salesperson and the real estate firm representing the buyer is the buyer's agent.

As a result, it is not necessary for the buyer to sign a contract with his/her "buyer's agent" in order to create an agency relationship. However, it has become a common practice in a number of other jurisdictions for buyer agents to have their clients sign a formal contract. There are also a number of agents in Manitoba who choose to use the buyer agency contract format. From the agent's perspective, he/she wants to secure his/her client's loyalty before expending time and services on the client's behalf. However, do not let an agent coerce or force you to sign a buyer agency contract.

As a buyer, you need to carefully review the contract to understand your rights and obligations. Some typical provisions will require that you pay a commission to "your" agent when you purchase any property within the contract period. Likewise, if your agent is compensated by the listing agent in the transaction, your obligations to pay the commission may be reduced or eliminated.

Q: Who pays the commission when there is a buyer agency contract?

A: Usually, the commission is paid by the seller from the proceeds of the sale. If the seller refuses to pay the selling portion of the commission, then you may be required to pay it to your salesperson as outlined in the buyer agency agreement.

CHATTELS

Q: What if there were items listed in the listing contract or feature sheet that were to be included in the sale but were removed by the seller?

A: In the case of chattels which are included in the sale, the seller is not bound by the listing agreement or by any feature sheets, but only by what is stated in the offer to purchase. Therefore, if there were chattels included in the sale but you did not list them in your offer to purchase, the seller is entitled to remove all chattels except those specifically listed in the offer to purchase and, in fact, must do so under the terms of the offer. When you do not list such included chattels in the offer to purchase, the logical conclusion is that you do not want them and the seller is entitled to remove them regardless of what the listing agreement or feature sheet stated. It is therefore recommended that you specifically document any chattels that you want included in the sale; watch for garage door openers, central vac attachments, etc. to avoid potential problems.

Q: What if I included an appliance (or other chattel) in the offer to purchase but the seller removed it or changed it for an older model?

A: The seller cannot do this; however, you will need proof that this has happened. Contact your salesperson and branch manager about the situation and hopefully, they will contact the seller and resolve the situation. You should also immediately contact your lawyer as this situation is often best left to the lawyers representing the seller and buyer to settle as there may be financial consequences. There have been several such cases that have ended up in Canadian courts with the seller receiving large fines.

CLOSING COSTS

Q: I am selling my home. What are the typical closing costs that I might have to pay?

A: The following is a list of some of the typical closing costs when selling a home: - real estate commission plus 5% GST
- lawyer's fee (discuss this with your lawyer)
- miscellaneous charges incurred by your lawyer; e.g., courier services, title search, ordering copies of encumbrances, photocopying, fax charges, etc.
- your portion of any property taxes if possession date is before June 30th unless you are rural
- mortgage discharge fees for any mortgage on your property (your bank and Land Titles both will have discharge fees)
- any penalty for discharging your mortgage earlier if you have a closed mortgage
- interest on your mortgage between possession date and when Land Titles office registers the transfer
- interim financing costs if you are also purchasing a home
- costs of discharging any judgements, builders' liens against your home
- all utilities will have to be paid up to the date of possession

Q: I am buying a home. What are the typical closing costs that I might have to pay?

A: The following is a list of some of the typical closing costs when buying a home:
- lawyer's fee (discuss this with your lawyer)
- miscellaneous charges incurred by your lawyer such as for title searches, tax search, attending at Land Titles to register documents such as transfer of title or mortgage, photocopying, courier services, etc.
- buyer's portion of property taxes
- fee to verify zoning and obtain zoning memorandum if necessary
- Land Transfer Tax (this is described under a separate question)
- Cost of new survey if not available from the seller
- Fee for title insurance if required

COMMISSIONS

Q: What is the standard commission rate?

A: There is no standard commission rate - it is completely negotiable between the seller and the listing salesperson/brokerage firm. The commission rate can either be a percentage of the selling price or a flat fee.

Q: Why are commission rates so high? I could save that money by selling privately.

A: Remember that real estate salespeople do not invoice buyers and sellers for their expenses. Instead, salespeople are paid a commission when the property sells. Usually, that commission comes out of the proceeds of the sale and is typically paid by the seller.

Think of the commission as being really in two parts: the listing portion that is paid to the listing salesperson/firm to cover marketing and advertising costs such feature sheets, holding open houses, advertising in the Real Estate News and on MLS®, etc.; and the selling portion that is offered to buyer representatives to cover some of the expenses associated with showing homes to buyers, preparing and delivering offers, qualifying buyers to ensure they are legitimate buyers who can afford to purchase your home, etc. The typical split is 50/50. The seller does not pay any commission until the property sells. If you sell your home privately, there are some costs that are irretrievable if the property doesn't sell or if you choose to list the property later on MLS®. If you choose to sell your home privately, you also have to be available at all hours to show it to prospective buyers, some of whom may not really be able to afford to buy your home. You may not really be saving as much money as you think when you take all of these things into consideration.

Q: Who pays the commission when there is buyer agency?

A: It is possible that the commission will still be paid by the seller from the proceeds of the sale. However, it is also possible that the seller will not agree to pay the full portion of the commission but only the listing portion. You will be informed by your agent whichever applies. If the seller will not pay the full amount of commission, you will be required to pay the selling portion of the commission to your buyer agent. This is outlined in the buyer agency contract.

COMPETING OFFERS

Q: I am trying to buy a home but I am always in a situation where there are lots of competing offers. What do I do?

A: You should make your first offer the best offer that you can - the best price, possession date, etc. Your salesperson will inform you if you are in a situation where there are competing offers; however, he/she cannot and must not tell you any of the details of any of those offers. He/she cannot even tell you that you are within a certain dollar amount of the best offer.

CONDITIONAL OFFERS

Q: I need a mortgage to purchase the property but I didn't specify a time by which the financing must be approved in the offer to purchase. My application for a mortgage was rejected and now I can't get out of the deal. What do I do?

A: Contact your lawyer immediately as you are in breach of the offer to purchase contract. Because the offer to purchase was not conditional on financing being approved and assuming that there are no other conditions in the contract, the contract is binding on you. You will probably forfeit your deposit and will likely incur additional costs.

Q: I sold my home and the offer was unconditional. Now, I have been told that the buyer was not approved for his/her mortgage and wants out of the deal. What do I do?

A: Contact your lawyer immediately as the buyer is in breach of the offer to purchase contract.

CONDOMINIUM UNITS

Q: I am buying a condominium unit and I don't want to wait for the condominium corporation to deliver all of the documents required by The Condominium Act. Can I waive this provision?

A: No you can't. First of all, the 48-hour cooling off period does not commence until you receive all of the documentation. Then you must sign a statutory declaration for Land Titles that states that you did receive all of the documentation required by the Act and that the 48-hour cooling off period has elapsed.

Q: I am thinking about buying a condominium unit. How is this purchase different from purchasing a single family home?

A: There are a number of differences:
- there is governing legislation - The Condominium Act
- with a condominium unit, the owner owns his/her unit plus a share of the common elements in the condominium complex
- there is a different offer to purchase
- there is a monthly condominium fee to be paid
- there is a reserve fund to pay for unforeseen expenses related to the common elements
- there are condominium bylaws and rules to be followed
- the condominium complex is managed by a board of directors whose members are condominium unit owners
- there are a number of documents that must be given to the buyer at the time of or shortly after his/her offer has been accepted
- the buyer has 48 hours to review these documents
- the buyer has a right to cancel the purchase contract within this 48-hour cooling off period
- the buyer or buyer's lawyer must obtain a copy of the Status Certificate just prior to closing
- the buyer must sign a Statutory Declaration for Land Titles which states that he/she received all of the documentation required by The Condominium Act and that the 48-hour cooling off period has passed

DEPOSITS

Q: How much should I put down as a deposit?

A: A deposit is payment of money as a pledge by you to fulfill the terms of your offer to purchase contract. If you fail to perform the contract, the deposit is usually forfeited. If you do perform the contract, the deposit acts as a part payment towards the purchase price. Typically, the deposit should be sufficient to let the seller know that you are serious about purchasing the property - 5% to 10% of the purchase price is probably an adequate amount.

Q: How do I get my deposit back?

A: The clauses in your offer outline circumstances when a deposit can and will be returned. For example, if you have purchased a property and have attached a condition (Clause 8 of the offer) that needs to be fulfilled, such as arranging a mortgage or selling your home, you will be entitled to a return of your deposit if you made an honest effort to attempt to fulfill the condition but were unable to do so. In such a case, you must communicate this to the seller prior to the expiry of the time period attached to your condition.

However, if the seller challenges whether you have in fact made a reasonable effort to fulfill the condition, the deposit cannot be returned to you by the listing agent. In this case, the deposit is held in trust by the listing brokerage and it cannot be returned to either party without the agreement of the buyer and seller. Barring agreement, the listing company can pay the deposit into court pending resolution. Therefore, it is important for you to make every effort to fulfill any conditions that you put in your offer and be able to prove such - e.g., you have a letter from the bank or your home was listed but did not sell, etc.

If you have purchased a property unconditionally or after all conditions have been satisfied and you choose not to close the transaction, the seller may retain your deposit and may also seek additional damages from you.

DISCLOSURE OF DEFECTS

Q: What is Caveat Emptor ("let the buyer beware")?

A: Almost all real estate has an existing deficiency of some sort. Caveat Emptor ("buyer beware") is a legal maxim that applies to the purchase and sale of real estate in Manitoba. A seller is not required to disclose all known facts affecting the value of the land which may be material to the buyer, and has no legal obligation to point out any deficiencies unless the defect is hidden, and is so serious that it results in a health or safety hazard, or renders the property unuseable.

The legal obligations to a buyer from an agent who is representing the seller mirror these legal requirements. As a result, if a seller is required by law to provide information to a buyer, then his/her agent has the same legal and ethical responsibility.

In very general terms, Manitoba law is as follows:
- there is no implied warranty by the seller attached to real estate sales;
- a defect which may be detected on a reasonable inspection is not one which requires disclosure by the seller;

However courts have created "exceptions" to the general law of caveat emptor. In general terms, hidden defects do not have to be disclosed by the seller unless:
- the buyer (buyer agent) has asked a question which then requires an honest response;
- the seller has purposely hidden the defect;
- the defect is so significant that it renders the property useless for the purpose for which they are buying (and different judges have interpreted the scope of this on different scales);
- the defect creates a health or safety hazard.

To overgeneralize, the obligation to disclose will relate to whether the listing agent and/or seller were actually aware of the defect and how severe the defect is based on the above tests.

EDUCATION

Q: How do I become a licensed salesperson?

A: You must successfully complete Phases 1, 2, and 3 of Real Estate as a Professional Career as offered by The Manitoba Real Estate Association. For information on these courses, click here. You can also download a copy of the Real Estate Career Guide, which provides valuable information about a career in real estate as well as complete descriptions of the courses offered by the Association.

Once you have successfully completed these three courses, you can apply for your salesperson's licence with The Manitoba Securities Commission provided that you are employed by a real estate brokerage firm that is licensed in Manitoba.

Q: Do I need to take any additional courses?

A: Yes, you must successfully complete two articling courses within the first two years of becoming licensed as a salesperson: Real Property Law must be completed within the first year and Principles of Appraisal must be completed within the second year or earlier if you desire. Descriptions of these courses are also provided on the Education page of the Association's website www.realestatemanitoba.com. If you fail to complete one of both of these courses within the specified timeframe, your licence will probably be suspended until you do complete them.

Also, each year you must attend a Mandatory Continuing Education seminar offered by The Manitoba Real Estate Association and The Manitoba Securities Commission.

ETHICAL CONDUCT

Q: How do I address a concern that I have with respect to the conduct or services of a REALTOR® ?

A: If you have a concern about the services which have been provided by the REALTOR®, you should consider the following options:

  • First discuss the concern with the REALTOR® involved;
  • Raise your concern with the broker/manager of the real estate office;
  • If your concern is with respect to a financial matter or a civil claim for compensation, you should seek legal advice as to your rights and obligations;
  • If your concern does not involve a claim for compensation but is an ethical concern, you can direct a written complaint to the Manitoba Real Estate Association for review.
Q: I think I may have a valid civil claim for compensation against a seller and/or real estate salesperson. What do I do?

A: Most importantly, you need to seek out legal advice to be advised of your rights and obligations. If you are advised that you indeed have a claim which might succeed based on legal precedents, you can consider the following steps which can be carried out either on your own or with your lawyer's assistance:

  • Contact the broker/manager of the real estate office and ask what the firm is prepared to do to address your concerns;
  • Commence a civil claim which can proceed in either Small Claims Court (current limit of $10,000) or through the Court of Queen's Bench;
  • Please note that a professional standards complaint filed with MREA will not provide you with any evidence to assist you with your civil claim, nor will it provide you with any financial compensation. (see the next question below)

Q: I want to report an apparent ethical violation of one of your member REALTORS®. How do I do this?

A: Complaints made by members of the public are referred to the Manitoba Real Estate Association (MREA) for our attention.

The MREA is a not-for-profit membership organization. Our members must abide by a national Code of Ethics and Standards of Business Practice which is enforced through our professional standards process. At your request, our Association will undertake an investigation of your complaint. At the conclusion of our investigation and hearings (if warranted), if our member is found to have engaged in the conduct set out in the complaint, our hearing Committee may impose a sanction ranging from: a reprimand; a fine of up to $5000; suspension of membership; expulsion; or educational update.

Please note however, that we are not a government agency, nor are we the regulatory body for the real estate industry. Likewise, our membership Association is not a court of law and is unable to provide any form of financial compensation to complainants.

Any ethical investigation which we might undertake will only result in potential disciplinary action against the member(s) involved and will not provide any evidence or assistance to you in any manner with respect to a civil remedy.

Should our Investigative Committee feel that a formal hearing is required, you will be requested to appear to provide in detail the particulars of your complaint.

48 HOUR CLAUSE

Q: What is the 48-hour clause?

A: Sometimes when a seller accepts an offer that is conditional upon the buyer selling his/her home or arranging financing, he/she inserts into the acceptance portion of the offer a condition which is commonly known as the 48 hour clause. This clause allows the seller's home to remain on the market while the conditions are being satisfied. If the seller receives another offer to purchase, which is unconditional, before the buyer has satisfied the condition(s), then the seller can give 48 hours notice to the first buyer using the 48 Hour Notice of Another Offer form. During this 48 hour notice period, the buyer must satisfy or waive all conditions relating to the offer to purchase, or failing to do so, the conditional agreement shall be deemed to be cancelled by mutual consent by both buyer and seller. The seller can then accept the second offer. Be careful accepting the second offer when invoking the 48 hour period - it can only be accepted subject to the first offer becoming null and void. Otherwise you run the risk of selling the home twice.

Q: After giving the first buyer a 48 hour notification of another offer, what happens if the first buyer notifies me that all conditions in his/her offer have been satisfied?

A: Then your home is sold to the first buyer and you must notify the second buyer of this fact.

GROW OPS

Q: What if I am interested in purchasing a property that I believe was used as a grow operation?

A: There are several suggestions:
- The Winnipeg Police Service maintains a list of specific addresses where it has located and dismantled grow operations at http://www.winnipeg.ca/police.
- Ask the seller's agent or listing salesperson a specific question - they must answer you truthfully.
- Hire a professional inspector and be sure to obtain a copy of his/her report.
- Insert one or more of the following conditions in your offer to purchase similar to the following:
The Seller represents and warrants that, during the time the Seller has owned the property, the property and the buildings and structures thereon have not been used for the growth or manufacture of any illegal substances.

OR

The Seller represents and warrants that no activities are being conducted in or about the Property which have resulted in, or which would, could, or might result in, a Community Safety Order being made under The Safer Communities and Neighbourhoods Act with respect to the property.

OR

This offer is conditional upon there being no Community Safety Order made pertaining to the Property or any portion of portions thereof.

OR

The Seller represents and warrants that no activities are being conducted in or about the Property which have resulted in, or which would, could, or might result in, a Forfeiture Order being made under The Criminal Property Forfeiture Act with respect to the Property.

GST

*CAUTION: GST is a complicated subject and expert advice should be obtained.

Q: I am buying a new home. How much GST do I pay?

A: When you buy a newly constructed home, condominium unit, or a townhouse, the entire purchase price, including the land, is taxable. If the property is to be rented to tenants, the full 5% GST is charged on the purchase price. However, if the home is going to be your primary place of residence, it may qualify for a partial GST rebate depending upon the sale price.
- Where the purchase price of the property is $350,000 or less, you will receive a rebate of 36% of the GST payable to a maximum of $8,750.
- Where the purchase price of the property is between $350,000 and $450,000, the GST rebate is determined by the formula.

A:

(lesser of $8,750 and 36% of GST paid) x (450,000 - purchase price) 100,000

- Where the purchase price of the property is more than $450,000, there is no GST rebate.

The rebate can either be claimed by the buyer or assigned to the seller of the property who can then credit the buyer with the rebate. The rebate must be claimed within two years of the date the buyer acquired the property.

Q: I am buying a resale home that I intend to live in. How much GST do I pay?

A: You don't have to pay GST on the purchase of a used residential home. In other words, the purchase is exempt from GST. Canada Revenue Agency defines "used residential property" to include a previously occupied house, condominium unit, apartment, summer cottage, vacation property, or non-commercial hobby farm that has been occupied as a residence before you bought it.

Used property can also mean a recently built house that is substantially complete and has been sold at least once before you buy it. For example, if a new house is purchased and resold before being occupied, the home's resale price will normally be exempt from GST.

An owner-occupied home is considered a residential property when it is used primarily as your residence. So, if you are self-employed and purchase a resale home that includes a room used as an office, the entire home still qualifies for the GST exemption.

Q: What GST is payable if I sell my retail store that has a small apartment upstairs that I live in?

A: Only the residential portion is exempt from GST on resale. The non-residential portion of the purchase price is taxable.

Q: I am buying a cottage. How much GST do I pay?

A: A resale cottage qualifies for the same exemption from GST as a resale residential home. However, there will be GST payable on any real estate commission if you used the services of a real estate salesperson to assist you.

Q: Is there GST on real estate commissions?

A: Yes, GST applies to most of the services provided in completing the real estate transaction. For example, 5% GST is applied to the commission a real estate salesperson charges for facilitating a sale. The tax is paid by the person who normally pays the commission - usually the seller.

The GST on commissions is payable even if the total GST owed is reduced by a rebate or the sale of the property is exempt from GST. For example, if you sell a used home, the sale price is exempt from GST but the real estate commission is still taxable.

GST applies to many other services involved in the real estate transaction, such as fees for appraisals, referrals, surveys, and legal assistance.

Q: Is there GST on mortgages?

A: No. Mortgages and interest on mortgages are GST exempt.

Q: Is there GST on rent?

A: No -residential rental payments are exempt from GST, commercial rental payments are not. However, if you use a real estate salesperson to find and arrange for a tenant for your rental property, GST applies to the fees and commissions he/she charges for this service. GST also applies to property management fees.

Q: Are monthly condominium fees subject to GST?

A: No they are not.

Q: I am buying vacant land. How much GST do I pay?

A: Buyers who purchase vacant land may have to pay GST on the sale price depending upon the previous use of the land. If you build a new home on your land, then you will pay GST on the construction costs of the house, less any applicable rebate.

Q: I am buying a farm. How much GST do I pay?

A: The sale of farmland is generally subject to GST. However, certain sales of farmland between family members and related parties will be exempt provided the farmland is subsequently used by the buyer for personal use and enjoyment. If the farm is to be used as an operating farm, it will normally be subject to GST when it is sold. The portion of the farm used as a residence, on which no input credit has been claimed for GST previously paid, will normally be exempt from GST.

LIMITED JOINT REPRESENTATION

Q: What is limited joint representation?

A: Joint representation is an agency relationship in which the real estate firm acts for both parties to a transaction with the informed consent of both. It can arise if a salesperson represents both the seller and the buyer OR if one salesperson employed by the firm represents the seller and another salesperson employed by the firm, including another branch office of the firm, represents the buyer.

Limited joint representation is a form of joint representation that is subject to certain defined restrictions about what can and what cannot be disclosed; there are limitations on the duties of confidentiality and disclosure; i.e.,
- the salesperson cannot disclose what the buyer is willing to pay or the seller is willing to accept;
- the salesperson cannot disclose the motivation of either party unless authorized to do so;
- the salesperson cannot disclose personal information of or about the buyer or seller unless authorized to do so;
- the salesperson cannot disclose information about competing offers.

Limited joint representation arises only with the consent of both parties. This is obtained by both parties signing an Acknowledgement of Limited Joint Representation form.

Q: What if I don't want to sign the Acknowledgement of Limited Joint Representation form?

A: If you don't want to sign the Acknowledgement of Limited Joint Representation form, there can be no limited joint representation. If you still want agency representation, you will be referred to another real estate firm. If you are satisfied with being treated as a customer with no agency representation, then you can continue to work with the real estate firm.

LAND TRANSFER TAX

Q: Are there any land registration fees in Manitoba?

A: With certain exceptions, every buyer who tenders a transfer of land for registration at a land titles office is required to pay a tax to the Province of Manitoba, known as a "Land Transfer Tax". The tax is calculated on a graduated scale based on the fair market value of the property at the time of registration. There is also a $70 registration fee in addition to the tax.

The tax formula is as follows:

(a) up to $30,000 of value, $70.00 registration fee only
(b) between $30,001 and $90,000 of value, the tax is $70.00 plus .5% (or .005) on the amount over $30,000
(c) for values between $90,001 and $150,000, there is an additional 1% on the portion of value between $90,001 and $150,000
(d) for values between $150,001 and $200,000, there is an additional fee of 1.5% on the portion between $150,001 and $200,000
(e) if the property value is over $200,000, there is a fee of 2.0% on the portion of value over $200,000 plus $1,720 base fee.

The land transfer tax is normally paid by the buyer's lawyer to the land titles office as part of the fees and disbursements paid on closing when the transfer is registered.

Examples: Land Transfer Tax
(1) If a property sold for $165,000, the land transfer tax is calculated as follows: Registration fee: $ 70.00
- Between $30,001 and $90,000: $300.00 (60,000 x .005)
- Between $90,001 and $150,000: $600.00 (60,000 x .01)
- Amount over $150,000: $225.00 (15,000 x .015)
Total land transfer tax payable $1,195.00

LISTING CONTRACT

Q. What is a listing contract? A. A listing contract is a legally enforceable agreement between a property owner and a real estate brokerage, which authorizes the brokerage to represent the owner's interests in the sale of a property. Note that the contract is with the "firm" and not with the individual salesperson that you are dealing with.

The Real Estate Brokers Act (which governs the conduct of salespersons in Manitoba) has some basic provisions that must be adhered to; for example:

  • Must show an expiry date;
  • Must have the date it was signed;
  • A signed copy must be left with the owner at the time of signing;
  • Commission must be a percentage of sale price or rental value or an agreed fixed sum.
The commission payable cannot be based on the "difference" between the listing price and the actual sale price.

A listing contract creates legal obligations for both the owner and the brokerage. For that reason, consumers should read, understand and agree to all the terms of the contract BEFORE signing it.

Q. Are there different kinds of listing contracts?

A. Yes. There are a few different kinds, such as: Open Listing: Where an owner gives one or more industry members the authority to find a buyer for the property, while the seller reserves the right to try to sell it. These are more common with commercial properties. These agreements may be written or oral. The terms usually allow the industry members to bring buyers to view the property and require the owner to pay commission if the industry member is successful in selling the property to that buyer. This type of listing cannot appear on a multiple listing system.

A variation of the open listing is a "fee agreement". This is most often used between a real estate industry member and a "by owner" seller where the industry member has a specific buyer in mind for the property.

Exclusive Listing: This form of listing gives one brokerage the authority to act on the seller's behalf. "Exclusive" does not mean the brokerage can unilaterally keep the listing to itself and prevent other brokerages from showing or selling the property, unless the client has very specifically requested such an arrangement. While most sellers want the best exposure possible, there are circumstances where a seller may have need for privacy or wish to exclude ALL other brokerages or industry members from conducting showings and bringing offers.

Multiple Listing Service® Listing: The multiple listing service (MLS®) is a cooperative arrangement managed by real estate boards as a service to their membership. The system enables member brokerages to cooperate in the showing and selling of properties listed by all other member brokerages thereby encouraging transactions between clients of all the cooperating brokerages. This system can be an advantage to a seller wanting wide exposure for the property.

MLS® contracts contain a term authorizing the listing brokerage to post the listing and allow cooperating member brokerages to access the property. While MLS® encourages a spirit of cooperation between brokerages, an MLS® listing contract authorizes only one brokerage to act for the seller. That brokerage holds responsibility for marketing, negotiations, and payment of commission to cooperating brokers.

Consumers can view advertising related to MLS® listings on the web site www.realtor.ca. The site displays information on listed properties across Canada.

 
Q. Is there a standard contract?

A. There is a recommended form of exclusive and MLS® listing prepared by the Manitoba Real Estate Association and used by all boards in the province. However, most terms in the contract are open to negotiation between the owner and listing company. If you do not agree to a certain term, or a term does not apply to your situation or you wish to include a term, these changes can be made to the contract and you and the listing brokerage's representative will initial the changes to indicate your agreement to it. Note that there are some fundamental terms that are required in order to be listed on an MLS® system. If a seller is not agreeable to those fundamental terms, they can choose to enter into an "exclusive listing" as opposed to an MLS® listing.

Q: Can I cancel my listing contract if I'm not happy with my salesperson?

A: Like any other contract, it is a legally binding arrangement. The contract can only be amended or cancelled with the agreement of both parties to the contract. In a listing agreement, the parties are you and the listing brokerage. If you would like to cancel the agreement or transfer it to a different company, you should speak to the broker/manager of the listing brokerage. You should have very specific reasons for wanting to cancel the agreement. Please note that the brokerage is NOT obliged to cancel or transfer the contract.

If you do decide to cancel the contract, you should seek legal advice as there may be consequences of cancellation as well as ongoing obligations after the agreement is terminated.

Q: What's a carry-over provision?

A: At the expiry of your contract, you may still have an obligation to pay a commission to your listing agent if a buyer who was introduced to your property during the listing period through the efforts of your agent subsequently purchases your property within the "carry-over" period, sometimes referred to as the "hold-over period". This is a negotiable time period which will typically be in the range of 60 days or more. This carry-over provision with the original listing agency is cancelled if you relist your property with another real estate company.

Q: What if I decide not to sell?

A: You are not obligated to sell your property and may change your mind. However, if you receive an offer to purchase which meets or exceeds the terms which you have outlined in your listing contract, you may still be obliged to pay a commission to your listing agent. In this circumstance, the agent has performed his/her obligation by bringing an offer to the table which matched your stated expectations in the listing contract.

MOBILE HOMES

Q: How do I sell my mobile home?

A: A mobile home without any land included in the sale is considered to be personal property; a mobile home, together with the land on which it sits, even if the land is leased, is considered to be real estate. Either way, you can sell your mobile home on your own if you choose to do so. However, if the sale of your mobile home includes the land on which it sits, you may choose to use the services of a real estate salesperson to assist you.

Q: Do I need a permit from the Fire Commissioner's Office before I can sell my mobile home?

A: If your mobile home contains a CSA label (Z240) or has been subject to a standards inspection for which a standards inspection label, e.g., Manitoba Labour Department label, has been issued, regardless of whether or not you have made changes to the mobile home, an inspection by the FCO and/or a permit from FCO are not required in order for the owner, or a real estate salesperson acting on the owner's behalf, to market and sell the mobile home to a third party.

If the mobile home does not contain a CSA label (Z240) or does not contain a standards inspection label issued by the FCO, the owner must obtain a standards inspection and a compliance label from the FCO before offering the mobile home for sale or lease.

MULTIPLE OFFERS

Q: When there are multiple offers for my property, do I see all offers before I have to decide?

A: Yes, your sales representative will (and must) show you all of the offers he/she has received. You will also be told the order in which they were received. You and your sales representative will review and compare each offer and decide which offer to accept and which ones to reject. You may find an offer that is close to what you are expecting and you may decide to counter that offer. Just remember that the time for acceptance may expire, after which the offer cannot be accepted or countered. Your sales representative will guide you through this process.

It is important to remember that the terms of competing or multiple offers can not be revealed to other salespeople or to prospective buyers.

NO SHOWINGS OR NO OFFERS UNTIL

Q: What does it mean when there are no showings until a certain date? or no offers until a certain date?

A: This is a marketing technique to generate lots of interest in the property and hopefully lots of offers for the seller to review on the specified date. If you and your agent choose to use this technique, you will likely be asked to sign a form stating the dates. However, please note that when this is used, the agent will not and must not show the property to anyone prior to the specified date and will not and must not present any offers to the seller prior to the specified date.

PRIVACY CODE

Q: What is the Privacy Code?

A: Those real estate salespeople who are members of a real estate board or association must abide by the Privacy Code of The Canadian Real Estate Association, which sets out the commitment of salespeople and the public's rights regarding the privacy of personal information. The Manitoba Real Estate Association's privacy code is available by clicking on the PRIVACY on the Association's web page.

Q: What is personal information?

A: In the usual course of real estate transactions, salespeople may require personal and property information from buyers and sellers. Collecting and sharing this information is an essential part of the buyer and selling process. Personal information is any information about an identifiable individual. This does not include certain information which is publicly available such as a phone directory listing your name, address, and telephone number.

Q: How do salespeople collect personal information?

A: Most information will be obtained directly from you. Salespeople may also collect information from other sources such as credit bureaus and government agencies, as needed. At the time the information is collected, you will be told what use will be made of it, and your consent to that collection and use will be obtained.

Q: What do real estate salespeople do with my information?

A: Your information is used to facilitate the real estate transaction. Effectively marketing your house involves advertising the property in any medium, including newspapers, real estate publications, Internet web sites, and disclosing property information to other salespeople and prospective buyers. If the listing is on MLS®, the property information will be given to the real estate board operating the MLS®. The listing information is then distributed through the MLS® system to any person authorized to use the service. Property information, including sales data, is kept in the MLS® database following the completion of the transaction and is available to users of the system for comparative market analysis and valuation purposes. Both current and historical data is essential to the operation of the MLS® system and by placing your listing on the MLS® system, you are agreeing to allow this ongoing use of listing and sales information.

Q: How do I find out what personal information a real estate salesperson, firm, board, or association has about me?

A: Contact the salesperson, firm, board or association as applicable. There may be specific procedures or forms that you have to fill out and there may be a nominal fee for the service.

Q: Can I correct my personal information if it is wrong?

A: Yes, you can. Contact the particular person or organization, explain the correction you are requesting and why. You will probably be asked to prove that the information is inaccurate or incomplete; however, you do have the right to request that a correction be made.

QUESTIONS TO ASK REAL ESTATE SALESPEOPLE

Q; I am selling my home - what questions should I ask my agent?

A: As a seller, your relationship with a real estate salesperson is vital - so meet with several salespeople before making a final decision. Ask about their track record, their knowledge of your neighbourhood and the selling prices for comparable homes in your neighbourhood, their plan to market your home including advertising, feature sheets, and open houses, what will be the commission rate.

Ask how the agent will arrive at an accurate estimate of value for your home.

Make sure that you understand the selling process - ask if you are not sure. Ask how you can make your home more "saleable". Have the salesperson explain the listing agreement and offer to purchase, and about conditional offers and competing offers. Should you prepare a a Property Disclosure Statement? Be sure that the salesperson explains agency to you and what limited joint representation is.

Q: I am buying a home - what questions should I ask my agent?

A: As a buyer, make sure that you understand who the agent is representing - you, the seller, or both. Have your agent explain buyer agency and limited joint representation and decide whether or not you want to be represented in an agency relationship.

Ask the agent to explain the buying process and go over the offer to purchase with you. Ask the agent to explain what happens when there are multiple competing offers.

Ask the agent to explain conditional offers - if you need a mortgage to finance the purchase, make sure that the appropriate condition is inserted in clause 8 of the offer. If you need a mortgage and don't put the condition in clause 8, you will be bound to the contract even if you don't get your mortgage.

Make sure that your agent understands your requirements for a home and what you can afford. You don't want to spend a lot of time viewing homes that you cannot afford.

SELLERS PROPERTY CONDITION STATEMENT

Q: What is the Property Disclosure Statement?

A: The SPCS is a document which may be used by a buyer and a seller to address questions about a property that a typical buyer might be interested in. Use of the form is not mandatory.

Buyers should not use this form as a substitute for making appropriate enquiries about the property or obtaining expert advice such as from a qualified building inspector or structural engineer.

If the seller agrees to complete the form, care must be taken that the information provided is accurate. Almost all real estate has an existing deficiency of some sort. Caveat Emptor ("buyer beware") is a legal maxim that often applies to the purchase and sale of real estate in Manitoba. As a general rule, in the absence of a form such as this, a seller is not required to voluntarily disclose all known facts affecting the value of the property which may be material to the buyer, and has no legal obligation to point out any deficiencies unless the defect is hidden, and is so serious that it results in a health or safety hazard, or renders the property unusable.

This form provides written statements about the physical condition of the property which may result in remedies available to a buyer that may not exist if such statements were only verbal or not made at all. A buyer must remember that the seller's answers to the questions in this form are based only on the seller's knowledge, or accuracy of the seller's recollection, which may be limited.

One of the advantages of using the form is that both buyer and seller will have a written record of representations which are otherwise verbal and subject to misinterpretation and faulty recollection.

TENANTS IN PROPERTY

Q: How do I sell my home when there is a tenant living there?

A: The Residential Tenancies Act protects tenants in various ways. Prior to listing your property for sale, notify your tenant that you are doing so. Once the property is listed, you, your landlord, or the real estate salesperson representing you cannot enter the rental unit without prior written notice to the tenant stating the reason for entering and the date and time of the showing. The tenant must receive this notice not less than 24 hours prior to the showing. The tenant has the right to object to the date or time but must suggest a reasonable alternate day or time when the property can be shown. This right of the tenant to the required notice and his/her right to object to the date or time are protected by legislation. If your tenant refuses to allow the showing of the property at any date or time, contact the Residential Tenancies Branch for assistance.



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