Drafting a promise to purchase and the real estate broker's role

The promise to purchase formalizes the buyer's intention to acquire a property under specific conditions and binds the parties to the transaction–the buyer and the seller. Whether you are the buyer's or the seller's broker, every professional plays a crucial role in analyzing their client's needs to represent them properly. This includes preparing transaction documents, drafting clauses, negotiating terms, and assisting them until the transaction is completed.

Before starting to show a property, it is essential that a brokerage contract to purchase (BCP) be signed, allowing the real estate broker to represent the buyer. Without this contract, brokers cannot advise buyers based on their needs and criteria, nor can they negotiate a promise to purchase on their behalf with the seller.  Without a brokerage contract to purchase, brokers can only offer minimum objective information through fair treatment.

To draft a promise to purchase, real estate brokers must review all available documents to properly inform and advise their clients. This involves explaining and ensuring that all information and conditions outlined in the promise to purchase and/or the counter-proposal serve the client's best interests. Brokers must, among other things:

• Identify the client's goals, such as desired price, conditions, and possession date.
• Discuss inclusions and exclusions with the client.
• Clarify the essential conditions to be included in the promise, such as inspection, financing, the sale of the buyer's property, obtain details through additional documents, obtain a permit from the city or make verifications with it, conduct expert assessments, etc. 
• Clarify the impact of a sale without legal warranty and adapt the conditions of the promise to purchase by including the standard clause provided for this purpose to protect the client.

• Verify the property description sheet, seller's declarations, certificate of location, co-ownership documents (if applicable), proof of financial capacity (e.g. mortgage pre-approval), and any previous inspection reports.

• Ensure that clients fully understand the terms and clauses of the forms they complete.
• Check that the price, the deposit, and payment terms are compliant.
• Attach the appropriate annexes.

• Have the promise to purchase and all annexes signed.

Follow-up and collaboration after acceptance of the promise to purchase

• Obtain a date by which the seller may receive the buyer's promise to purchase.
• Remind clients of response times to avoid any misunderstandings.
• Arrange for discussions or negotiations in the event of a counter-proposal.
• Assist clients in analyzing their replies and in the next steps, especially the application of conditions.

Once the promise to purchase is accepted, both parties (buyer and seller) agree to abide by the agreed terms. Brokers’ obligation to collaborate continues until all the conditions of the promise to purchase have been fulfilled. This includes ensuring that conditions are fulfilled within the specified deadlines, immediately forwarding the required information, and disclosing all relevant information to the parties involved in the transaction.