Real Estate Paperwork Explained: For Ontario Sellers
Last blog, we wrote a guide explaining Real Estate Paperwork for Buyers. Today, we’re exploring the paperwork you’ll be asked to sign when you sell your home in Ontario.
But before we begin, some overall info you should know:
- The listing agreement and associated paperwork is between you and your REALTOR’s brokerage – not the actual REALTOR you are working with.
- The Ontario Real Estate Association provides REALTORS with standard forms and agreements – these are the documents referred to below.
- Real estate forms, documents and agreements can be signed electronically with an acceptable electronic signature program (eg. DocuSign), including the Agreement of Purchase and Sale.
- Your agent should take the time to explain what the documents mean to you – don’t be afraid to ask questions and don’t sign anything without reading it.
- You should receive copies of all paperwork you sign.
Real Estate Listing Paperwork
Working with a REALTOR (WWR) – OREA Form 810
The Working With a REALTOR (WWR) form from Ontario Real Estate Association (OREA) summarizes the different ways that a person can work with a real estate agent. It explains, in plain English, what it means to be a ‘client’ and what it means to be a ‘customer’. Those are two important distinctions in Ontario, as they dictate the services you’ll receive and your agent’s obligations. It also explains what happens if the same agent is representing both the Buyer and the Seller on the same transaction or sale (multiple representation).
The Working With a REALTOR form is an agreement between you (the buyer or seller) and the Brokerage – not the individual agent you are working with. The agent works on behalf of the brokerage. Simply signing this form doesn’t commit you to working with a particular agent and it isn’t for a specific time period. It’s simply a way to get Buyers and Sellers to acknowledge that they’ve discussed the different ways they can be represented.
FINTRAC – OREA Forms 630 & 635
This is a mandatory identification document required by the federal government, and stands for the Financial Transactions and Reports Analysis Centre of Canada.
Listing Agreement – OREA Forms 200, 210a
The Listing Agreement is the document that gives the listing brokerage permission to list your home for sale. Important parts of the Listing Agreement include:
- The top section of the listing agreement:
- At the very top of the agreement, the Seller must initial if the listing will be on MLS or listed exclusively XXXX
- The details of the listing brokerage, the Sellers and the address of the property
- The length of the listing agreement – note that to appear on the Toronto MLS, thee agreement must be for at least 60 days; if the listing agreement is for longer than 6 months, an additional initial is required from the Seller
- The asking price – note that this does not commit the Seller to accepting an offer at that price and that the listing price is fully at the Seller’s discretion.
- Section 1: Definitions – defines the words used in the listing agreement
- Section 2: Commission
- The commission amount – note that this is the TOTAL commission (excluding HST). Section 3 addresses how much of the commission will be offered to the agent who represents the Buyer.
- The Holdover period – The holdover period confuses a lot Sellers. It commits the Seller to paying commission if the property is sold within X days (usually 90) after the listing agreement expires, to someone who was introduced to the property during the listing period. The holdover period protects the agent from Sellers who might make use of the services of a REALTOR (pricing, staging, marketing, etc.), but then negotiate a private sale at the end of the agreement as a way of avoiding paying commission. Note: if a new listing agreement is signed after the original agreement expires, the Seller is only responsible for any difference in commission.
- Example: On January 1st, Judy signs a listing agreement valid until March 31, at 5% commission, with a 90-day holdover provision. The house does not sell during the term of the agreement.
- Scenario 1: On April 20th, one of the Buyers who saw the home while it was listed for sale approaches Judy directly and buys it privately. Because the offer is within the holdover period, Judy would be required to pay commission.
- Scenario 2: On April 2nd, Judy decides to re-list her home with another real estate agent, at a 3% commission rate. On April 20th, one of the Buyers who was originally introduced to the home during the first listing makes an offer to purchase it through the new agent. Judy would be responsible for paying 3% to the new agent, and 2% to the original agent.
- If an Agreement of Purchase is agreed to by a Buyer and a Seller but the Seller does not close because of default or neglect, the Seller must still pay the commission to the listing brokerage.
- Section 3: Representation – The agreement reiterates the ways that brokerages and their agents can represent Buyers and Sellers and the rights and obligations around multiple representation (when one brokerage represents both the Buyer and the Seller in the same transaction). It specifies what information can and cannot be shared with the other side.
- Section 4: Finder’s Fees – addresses finder’s fees and incentives which may be payable to the brokerage (for example, a brokerage might receive a referral fee from a bank or mortgage broker).
- Section 5: Referral of Enquiries – ensures that the Seller understands that if they are approached directly by a Buyer or receive an offer to purchase the home from a third-party, that they must inform their agent (and the commission will still be payable during the term of the agreement).
- Section 6: Marketing – gives the brokerage exclusive permission to market and show the home to prospective Buyers
- Sections 7 and 8 deal with warranties, liability and insurance. In short. The Seller is confirming that they:
- have the right to offer the property for sale;
- won’t hold the listing brokerage responsible for loss or damage to the property during the term of the listing agreement; and
- Have property insurance
- Section 9: Spousal Consent – It addresses spousal consent for the sale of a matrimonial home. Talk to your lawyer if you aren’t sure about whether the sale of your home needs spousal consent.
- Section 10: Verification of Information – gives permission to the listing brokerage/the agent to obtain and verify information about the home.
- Section 11: Privacy – relates to privacy and specifies what to expect
Agreement of Purchase and Sale – OREA Forms 100, 101, 400
The Agreement of Purchase & Sale is the legally binding agreement for you to purchase a home and defines the price, terms and conditions of the sale. In Ontario, a real estate transaction has to be in writing to be legal. There’s a standard version of the form for house purchases and one for condo purchases. The most important non pre-printed parts of the Agreement of Purchase and Sale are as follows:
- Legal names of the Buyers and Sellers
- Legal description of the property (including the lot details for houses, or the condo corporation for condos)
- Amount and terms of the deposit [Related: All About Deposits]
- Irrevocable time (in other words, the time the offer expires if not accepted by the other side)
- Completion date (the date you take possession)
- Inclusions and exclusions (eg. appliances, light fixtures, etc.)
- Identification and terms of any rental items (eg hot water tank)
- For condos: description of the condo fees and what they cover; description of parking and locker
- Whether or not HST is applicable (usually not for resale residential sales)
- Directions for the lawyers, including important dates for title searches, closing arrangements, etc.
- The schedules attached to the Agreement of Purchase and Sale form part of the agreement and are customized by the agents. Generally speaking:
Schedule A is created by the brokerage representing the Buyer and includes the unique terms and conditions for the sale, favourable to the Buyer. Schedule A is where any conditions would be outlined (eg. financing, home inspection, status certificate review, etc.) as well as any other terms.
Schedule B is often included and is created by the brokerage that represents the Seller, containing clauses to protect the Seller. Typically there will be details regarding the handling of interest on the deposit held by the selling brokerage, as well as clauses limiting the selling brokerage’s liability.
Important info about the Agreement of Purchase & Sale:
- Time limits matter on the Agreement of Purchase and Sale – if an agreement expires at 11:59 PM, it’s too late to accept it at 12:01.
- It’s not enough to just sign something within the time frame, the accepted document also needs to be delivered to the other side before the expiry time (these days, this is usually done by email).
- The time zone that is relevant is the one that the property is located in – it doesn’t matter if the Buyer is in Europe and the Seller is in Asia. If the property is in Toronto, Toronto time dictates the time.
- All negotiations must be in writing to be legal
- Anything changed or written in must be initialled by all parties
- The brokerages and their agents are not parties to this agreement – it’s a legal contract between the Buyer and the Seller and is merely created by the agents/brokerage.
Confirmation of Cooperation – OREA Form 320
The Confirmation of Cooperation details the type of relationship the Buyer and Seller have with their agent/brokerage (eg. Client or Customer) and the commission agreement between the Seller’s brokerage and the Buyer’s brokerage. It also details what happens if the brokerage represents both the Buyer and the Seller (multiple representation). Both brokerages are party to this agreement so both agents will sign it.
Real estate forms and paperwork aren’t nearly as complicated as they appear – but make sure your agent takes you through what they mean and don’t be afraid to ask them for clarification.
Other Forms and Paperwork
You may also be asked to sign:
- Showing Instructions – You’ll need to provide the information for booking showings – who to notify of a showing request, how much notice is required, allowable showing times, instructions for any security systems, etc.
- Seller Direction for Offer Presentation – By law, Ontario REALTORS have to present any offers received to the Seller. If you’ve decided to delay looking at offers (ie as part of a multiple offer strategy, you have an ‘offer date’) and don’t want to review bully offers, you’ll be asked to sign this form.
- Lockbox Consent form – some brokerages will ask you to sign a form consenting to installing a lockbox on your property
- Open House Consent form – some brokerages will ask Sellers to sign a liability-limiting form for open houses
- Seller Property Information Form (SPIS) – The SPIS is completed by a Seller and includes details about the home and disclosures. It’s rarely used in Toronto these days.