By Ellen Baragon, Guest Contributor
BCREA’s Co-Listing Form – Separate Representation was developed so that multiple sellers who have opposing interests are able to engage different brokerages—or different agents within the same brokerage– to represent their interests in the sale of a property.
The Co-Listing Separate Representation amends certain sections of the Listing Contracts and allows the sellers and their respective brokerages to jointly determine certain terms of the listing such as listing price, remuneration, and the expiration date.
Realtors and their brokerages taking a Co-Listing Separate Representation involving multiple sellers should take these three steps:
Step 1. Even before using the Co-Listing Form – Separate Representationform, Realtors should recommend that the sellers get legal advice to ensure their interests are protected, and that this type of co-listing is what they want.
Step 2. After the sellers have had the opportunity to get legal advice and after both sellers have confirmed that this is the type of co-listing that they want, each brokerage involved should enter into separate listing agreements with their respective seller.
Step 3. All of the interested parties–each seller, each brokerage and each designated agent–should then complete and enter collectively into the Co-Listing Form – Separate Representation. This will amend specific terms in the respective listing agreements to allow for a co-listing agreed to by all of the parties involved, setting out the rights, obligations and expectations of the co-listing parties.
Facts About Co-Listings
Separate Representation versus Joint Representation forms
The Co-Listing – Joint Representation form is specifically for joint representation and has the effect of adding another brokerage and designated agent to the listing. It should not be used if the parties are expecting separate representation.
If the sellers do not have common interests or are in the middle of a dispute – such as the breakdown of a family relationship, the sellers may want to consider entering into a Co-Listing Form – Separate Representation.
Co-Listing Form – Separate Representation
The Co-Listing – Separate Representation form provides that each seller will have a separate listing agreement with their own brokerage and designated agent, modified only to the extent necessary for certain cooperation and joint responsibilities with respect to the listing.
Seller A’s Brokerage
The brokerages and sellers together determine which brokerage will be the Seller A’s brokerage. This brokerage will be the “Listing Brokerage” for the purposes of posting the listing the MLS®. Any changes to a co-listed property on the MLS® are only accepted from Seller A’s brokerage.
However, by signing the Co-Listing Form – Separate Representation form, the parties agree that any instructions to amend the co-listing must be made in writing and signed by the managers of both brokerages, prior to posting on the MLS®. If Seller A’s brokerage were to make a change without instructions signed by all parties, it would be breaching the terms of the Co- Listing – Separate Representation.
Remuneration in a Co-Listing Separate Representation
The Co-Listing Separate Representation provides places where the parties specify how the listing brokerages’ portion of the remuneration will be split between seller A’s brokerage and the seller B’s brokerage. When the sellers are completing the Co-Listing Separate Representation forms, they should discuss the details of the remuneration agreements and record these accurately on the form.
Realtors should remember they must also make appropriate disclosure of expected remuneration to their clients as set out under the Real Estate Services Act, based on the agreements in the Co-Listing Form.
Additional or separate remuneration terms
Parties may pay their designated agent additional remuneration other than as set out in the Co-Listing Form – Separate Representation. This additional or separate remuneration may be documented in a number of ways such as including it in the “other term” to the Co-Listing Separate Representation form, in a separate commission agreement or otherwise.
If such an arrangement is made outside of the Co-Listing Form – Separate Representation, the Realtors must properly document this and make disclosure all in accordance with the Rules under the Real Estate Services Act.
Amendments for Cooperation and Joint Responsibilities
The amendments to the separate listing agreements effected by the Co-Listing Form – Separate Representation include setting an approved marketing plan for the listing, determining who is responsible for the listing, setting the agreed list price, and determining how expenses will be paid/shared between the brokerages. The Co-Listing Separate Representation also specifies what the term of the Co-Listing will be.
Confidentiality and sharing information in a Co-listing
In a Co-Listing Form – Separate Representation, the sharing of information between the designated agents as it applies to material information about the marketing and the property itself is acceptable. However, the brokerage and designated should not share confidential information about their respective clients without prior consent from their clients.
Should the Schedule A to the listing contract still be required?
The brokerages may still want to include their own Schedule A for their own sellers. But the parties should ensure that any terms and commitments set out in their listing agreement are consistent with the Co-Listing Separate Representation and its terms, especially when the agents represent the clients with opposing interests.
Other Forms, and Disclosures including Property Disclosure Statements (PDS)
All disclosures required under the Real Estate Rules will still be required. All sellers are jointly responsible for the disclosure made about the current state of the property when the Property Disclosure Statement is incorporated into the Contract of Purchase and Sale. Realtors should still also obtain other forms, disclosures and agreements from their clients in a Co-Listing situation, such as a Privacy Notice and Consent, Lockbox Acknowledgement, Consent, Release and Indemnity forms, as applicable.
Get the Form
The Co-Listing Form – Separate Representation is available through WEBForms® (REALTOR Link® login required) for use in transactions.
A PDF and additional resource of the form is available in the Co-Listing Form – Separate Representation Toolkit accessible via the Standard Forms Resource Centre (REALTOR Link® login required), where you can also find other great standard forms training materials and resources.
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