3. Ensuring fair and equitable marketing

It is always in a seller’s interest to offer his property to as many prospective buyers as possible in order to optimize his chances of obtaining the best price and conditions based on his needs. Likewise it is in the best interest of the buyer to have access to as many properties as possible in order to find those that best correspond to his expectations, at the best price and under conditions that are favorable to him.

The licence holder must therefore:

• advise his selling client to list his immovable with an information dissemination service;
• list the immovable or enterprise on this service without delay, before beginning the marketing of the property and the performance of the acts specified in the brokerage contract.

If the client refuses to take this step, the licence holder must inform him of the consequences of not listing his immovable with the information dissemination service. He must also enter in the record the explanation provided to the client and the reasons for his refusal.

The licence holder must advise his client to list his immovable with an information dissemination service. If he fails to do so, he is depriving his client of the chance to offer his property to as many prospective buyers as possible and to obtain the best price and conditions according to his needs. In cases where the seller himself asks that his immovable not be listed with an information dissemination service, the broker must inform the client of the potential consequences of this decision and document this discussion in the transaction record.

Also, if the client wishes the licence holder to begin marketing the property and performing the acts specified in the brokerage contract before the immovable is listed with an information dissemination service, he must give the broker specific and express instructions to this effect¹. Such instructions must be recorded in writing in the brokerage contract to sell.

In fact clause 6.2 of the various residential brokerage contract forms is clear:

“The AGENCY or the BROKER shall begin the marketing of the IMMOVABLE and the performance of this brokerage contract only once the IMMOVABLE is listed on these services, unless written instructions to the contrary are given by the SELLER.”

The standard clause below to be inserted in the brokerage contract (under clause 11.1) is used to delay the marketing of the property in the exceptional circumstances described therein. This is an extraordinary measure that should only be used by the licence holder at the express request of the seller and in the situations indicated:

1.11 – Physical preparation of the premises and other deadlines

The parties agree to postpone the sending of information about the IMMOVABLE to subscribers of information listing services (clause 6.1) no later than _________ 20___ for any of the following reasons that delay the marketing of the IMMOVABLE:

• the physical preparation of the premises is underway;
• the broker’s verification of the accuracy of certain information following the signing of the brokerage contract is delayed for reasons beyond his control.

Postponing information dissemination and marketing is at the SELLER’s express request.

The SELLER understands that the BROKER or the AGENCY will not carry out any promotional activities to offer the IMMOVABLE for sale, including any advertising, listing on an information listing service, installation of a sign or visit to the IMMOVABLE before the date scheduled for disseminating information and marketing indicated above.

The contract shall remain in effect for all other rights and obligations set out thereunder. 

Therefore, until the immovable is listed with an information dissemination service, the licence holder is prohibited, among other things, from:

• putting up a sign advertising the immovable;
• advertising the immovable on any web platform or on social media (e.g. Facebook and Instagram);
• advertising that the immovable will soon come up for sale;
• providing information on the property to targeted prospective buyers;
• providing information on the property to other licence holders, including those of his own agency or team², except of course to his co-lister, if applicable;
• showing the immovable;
• promising or “reserving” the immovable for the benefit of a prospective buyer.

If, at the time of listing with an information dissemination service, the immovable is already the subject of an accepted promise to purchase, it means that the seller’s broker did not truly market it by ensuring that it was accessible to the largest number of potential buyers. It also means that opportunities for collaboration with other licence holders were not fully deployed. In this situation, neither the seller nor the buyer is being treated in a fair and equitable manner. By acting in this manner, the licence holder is not complying with his ethical obligations and exposes himself to a disciplinary complaint and to sanctions that can go as far as a revocation of his licence.