The Competition Tribunal ruled Friday that CREA’s policies do not prevent mere listings and do not discriminate against members who offer them. The tribunal dismissed a complaint from the Commission of Competition that said CREA’s policies contravene the consent agreement signed by the parties in 2010.

At issue are CREA’s rules that prevent the display of a seller’s contact information or the reference to a private sale on a webpage (such as a Realtor’s or brokerage’s site) that is linked directly from realtor.ca. CREA members who offer mere postings must create an extra step – a “buffer” webpage – before the contact information can be displayed.

The Commissioner stated that CREA should not be allowed to restrict where the seller’s contact information may appear on a website – whether on the first landing page linked from realtor.ca or anywhere else on the site.

Robert Herr, owner and broker of record of The For Sale By Owner Depot and FF4 Property Postings Inc., stated in an affidavit, “Sellers certainly do not like the buffer pages we are required to add in order to comply with CREA’s rules, not at all. I know this in part because sellers get very cranky when they find out and demand an explanation. They often tell me that including the buffer page and not immediately displaying their contact information will interfere with the possibility of a sale…”



But in the Competition Tribunal’s decision, Chairperson Donald J. Rennie says that since April 2011, Herr’s business has listed more than 1,000 mere postings to the MLS System and “he concedes that he can only point to one incident where a client apparently refused his services because of the necessity of a buffer page.”

Rennie writes, “Curiously, the evidence of Mr. Herr, called by the Commissioner, corroborates the evidence of CREA.” He says Herr’s website indicates that the link to private seller information is “seamless and one that is widely recognized by the public.”

Rennie adds: “The Tribunal is not satisfied, on a balance of probabilities that the rules discriminate against members who offer mere postings. The evidence addressed by CREA suggests to the contrary, that even a novice user of realtor.ca would have little difficulty in finding the information under the existing rules and design of the website.”

Rennie says he agrees with CREA that the “member-to-member nature of the MLS Systems underlying realtor.ca” cannot be undermined by the consent agreement. “Member-funded services are not required to promote private sales, something antithetical to the CREA member-to-member business model,” he writes. “The Commissioner’s interpretation effectively places a private seller in the same proximity to a prospective purchaser as a member.”

The full decision can be read here.

The Competition Bureau’s complaint against the Toronto Real Estate Board (TREB) concerning the board’s MLS policies is scheduled to be heard on Sept. 21.

48 COMMENTS

  1. I find it very self-serving of Robert Herr who says….”I know this in part because sellers get very cranky when they find out and demand an explanation.” The seller has to find out before Mr. Herr tells them. Shouldn’t that be disclosed up front before the seller parts with his money.

  2. To the question of how relevant is he REALTOR Code of Ethics and ARTICLE 19., to “mere posting” type listings:

    “Discrediting another Registrant

    The REALTOR® shall never publicly discredit any other Registrant. If the REALTOR®’s opinion is sought, it should be rendered with strict professional integrity and courtesy.”

    “INTERPRETATION

    19.1 The REALTOR® should not comment in a derogatory manner as to the capacity, integrity, and competence of any other Registrant.

    19.2 Where any REALTOR® is asked to comment on a specific transaction or the business practices of another Registrant, such comments should be given with strict professional integrity, objectivity and courtesy.

    19.3 This Article does not apply to truthful Advertising by REALTORS®. Any Advertising by a REALTOR® which contains seemingly derogatory statements about other Registrants or competitors, their businesses or their business practices may form the basis of an ethics charge only if such statements are false or misleading within the meaning of the Competition Act, or are otherwise prohibited by law.”

    The subject Article does apply to “mere posting” type listings, or more particularly those REALTORS who so practice.

    Article 19. is probably the most controversial Article of all. What could it possibly mean, to: render an opinion with strict professional integrity and courtesy, against being forbidden to publicly criticize any other Registrant? Where does integrity come into it, and who are we being courteous to: the other Registrant or to the Consumer who may be having some doubts about an industry member? For example, a Registrant will, usually or can only, make a complaint against another Registrant if the matter involves a joint transaction, so unless a Registrant could explain to a consumer why they felt the consumer should make a formal complaint, it would be less likely that a consumer would initiate any formal complaint. Interpretation 19.1 states that Article 19. doesn’t apply to truthful advertising, but it apparently it could apply to truthful statements — when the Provincial Law (Bylaws) mirrors this Act, as most do, because of the “…., or are otherwise prohibited by law.” provision, in Interpretation 19.1!

  3. To the question of how relevant is he REALTOR Code of Ethics and ARTICLE 18., to “mere posting” type listings:
    “Compliance with Statutory Requirements”
    The business of a REALTOR® shall be conducted in strict accordance with all statutory and regulatory requirements.” This Article would be applicable to “mere posting” type listings, to the extent of the REALTOR involvement in such listings.

  4. To the question of how relevant is he REALTOR Code of Ethics and ARTICLE 17., to “mere posting” type listings.:

    “Compliance with Board/ Association Bylaws
    The REALTOR® shall abide by the By-Laws, Rules, Regulations and policies established by the REALTOR®’s Real Estate Board, Provincial/Territorial Association, and The Canadian Real Estate Association (CREA).”
    The subject Article would clearly apply to “mere posting” type listings, in terms of the Listing Broker’s involvement. However, since a Buyer who approaches such a listing can do so directly without necessarily being represented by a licensed Registrant, and since the Seller is also typically not a Registrant, it could be argued that the subject ARTICLE could apply overall to “mere posting” type listings on as little as a one-third basis to potentially a two-thirds basis — the latter being the case, were a licensed Registrant to represent an actual Buyer(s).

  5. To the question of how relevant is the REALTOR Code of Ethics and ARTICLE 16., to “mere posting” type listings:
    “Discrimination
    The REALTOR® shall not deny professional services to or be a party to any plan to discriminate against any Person for reasons of race, national or ethnic origin, religion, colour, sex, family status, age, or sexual orientation, marital status or disability.” Article 16., is one that is obviously applicable.

  6. To the question of how relevant is the REAlTOR Code of Ethics and ARTICLE 15. Advertising Claims, to “mere posting” type listings:
    “15.1 Advertising of Compensation shall include the details of services provided and whether any additional charges may apply. If the services to be provided for the advertised Compensation do not include listing on a Board’s MLS® System, a statement to that effect must be included.” The subject Article does apply to “mere posting” type listings. However I have seen advertising where a brokerage that does provide a “mere listing” service takes it upon themselves to speak on behalf of competitor brokers, in terms of the willingness of competitor brokerages to generally be interested in an expired “mere posting” type listing. I feel it is highly inappropriate for a competitor to suggest what I may be willing to do.

  7. To the question of how relevant is the REALTOR Code of Ethics and ARTICLE 14., to “mere posting” type listings:
    “Advertising Listings of Other REALTORS
    REALTORS® may only advertise a property if such Advertising has not been restricted at the request of the Seller and is in accordance with provincial and federal regulations.”
    14.1 Listing brokerages may permit the Advertising of their properties by other brokerages when authorized in writing by the Seller to do so.
    14.2 Virtual Office Websites (VOWs), Internet Data Exchange Websites (IDXs) and any other similar sites or technologies which display properties of other REALTORS® shall be subject to all applicable laws, and be operated in accordance with the rules established by the appropriate real estate board(s) for such sites.

    The Mere Posting Agreement that is applicable in the Province I practice in makes no reference whatsoever to those sites referenced in Interpretation 14.2. Consequently unless this subject was address by way of a separate Form the “mere posting” seller wouldn’t have an opportunity to consent. As a result it is reasonable to believe that Article 14 isn’t being applied, as it should, to “mere posting” type listings.

  8. To the question of how relevant is the REALTOR Code of Ethics and ARTICLE 13., to “mere posting” type listings:

    “Advertising – Content/Accuracy All Advertising and promotion of properties shall accurately reflect property and other details and prominently display the name of the brokerage and any additional information required by provincial regulation.”

    “Interpretation: 13.1 REALTORS® shall not advertise or permit any person employed by them or otherwise affiliated with them to advertise real estate services or property without disclosing the name of the REALTOR®’s brokerage in a readily apparent fashion. If disclosing the name of the REALTOR®’s brokerage is impractical because of the nature of the display (e.g. text message, tweet, etc…) then no such disclosure is required, provided there is a link to a display that includes all of the required disclosures.”

    From what I’ve experienced, it is fairly common for a “mere posting” type listing to have the custom “For Sale” sign of a company that is in the business of facilitating Private Seller’s with unlicensed services. I’ve never noticed the listing brokerages name for the “mere postings” listing brokerage, on the aforesaid signs that I’ve seen. An “affiliation” can also be defined as an informal relationship. Based on the anecdotal evidence I’ve seen, the subject ARTICLE isn’t being applied to “mere postings”.

  9. To the question of how relevant is the REALTOR Code of Ethics ARTICLE 12., to “mere posting” type listings:

    “ARTICLE 12. Skilled and Conscientious Service
    REALTOR® shall render a skilled and conscientious service, in conformity with standards of competence which are reasonably expected in the specific real estate disciplines in which the REALTOR® engages. When a REALTOR® is unable to render such service, either alone or with the aid of other professionals, the REALTOR® shall not accept the assignment or otherwise provide assistance in connection with the transaction.”

    It should be noted that the Interpretations for the subject Article mention a “client” but not a “customer”. The applicable Service Contract in one Province mentions “due care”, while another Province mentions “reasonable care and skill”. The “due care” Province really doesn’t clarify what other services can be expected by a Customer (mere posting), while the “reasonable care and skill” Province mentions three specific services — two of which are largely clerical and the other service relates to the accuracy of data. Subsequent to the birth of “mere postings”, at least, one Province deleted the MLS Rule that had required a REALTOR to personally visit any property that they might list or sell — this was done (as I was told) because it was felt that the Competition Bureau of Canada might object to the aforesaid rule. The fact that a REALTOR should endeavor to personally visit any property that they might list or sell would seem fundamental to any notion of “Conscientious Service” — however, the subject Article doesn’t address or imply as to whether the intention of said ARTICLE favours a REALTOR to personally visit any property that they might list or sell [or a colleague REALTOR for that matter] or could the verification of property details be delegated to someone who is not a Registrant? In some Provinces, REALTORS receive special training from their Board or Association, as to how to properly measure a home. I recently received written confirmation from a “mere posting” seller that a representative from the For Sale by Owner Company had actually measured their home. All things considered, it is my considered opinion that the subject Article doesn’t substantially apply to “mere posting” type listings.

  10. To the question of how relevant is the REALTOR Code of Ethics and ARTICLE 11., to “mere posting” type listings:

    “ARTICLE 11. Personal Interest in Property
    A REALTOR® shall not buy or sell, or attempt to buy or sell an interest in property either directly or indirectly for himself or herself, any member of his or her Immediate Family, or any entity in which the REALTOR® has a financial interest, without making the REALTOR®’s position known to the buyer or seller in writing.” A “mere posting” is subject to this Article.

  11. To the question of how relevant is the REALTOR Code of Ethics and ARTICLE 10., to “mere posting” type listings:

    ” Outside Professional Advice ARTICLE 10.
    The REALTOR® shall encourage parties to a transaction to seek the advice of outside professionals where such advice is beyond the expertise of the REALTOR®.”

    Strictly speaking Article 10., doesn’t apply to “mere posting” type listings because there is no requirement for the listing brokerage or any other brokerage to participate per se’, in a subsequent transaction.

  12. To the question of how relevant is the REALTOR Code of Ethics and Articles 8. and 9.,
    to “mere posting” type listings:

    “Disclosure of Benefits to Clients ARTICLE 8.
    REALTORS® shall:
    a) obtain the consent of their Clients prior to: (i) accepting
    Compensation from more than one party to a transaction, or (ii) accepting any
    rebate or profit on expenditures made for a Client.
    (b) disclose to their Clients any financial or other benefit the REALTOR®
    or his/her firm may receive as a result of recommending real estate products or
    services to that party.”

    “Disclosure of Benefits to Customers ARTICLE 9.
    REALTORS® shall disclose to Customers:
    a) any financial or other benefit the REALTOR® or his/her firm may
    receive as a result of recommending real estate products or services to that
    party.
    b) any rebate or profit accepted by the REALTOR® or his/her firm for
    expenditures made for that party.”

    Articles 8. and 9. need to be considered jointly, in part because the Interpretation for
    Article 8., is also applicable to Article 9. It could be said that Article 8. doesn’t precisely

    pertain to “mere posting” type listings because it contains the requirement of “consent” that isn’t applicable to Article 9.

    It’s also interesting that the Interpretations for Articles 8, and 9. do make specific reference to some types of service providers, however they don’t mention Home Inspectors, nor do they exclude them.

    While Article 9. is applicable to “mere posting” type listings this fact raises another question. Should real estate practitioners be referring other service providers to a Customer? The
    referring of another service provider to a Customer requires the application of some discretion which shouldn’t be present in a non-fiduciary role. The Courts apparently decide whether an Agency Relationship existed or not, based on the circumstances of the actual relationship and
    not on the stated intention of the relationship. At least one Province in Canada has expressly prohibited real estate practitioners from referring Customers to other service providers. It should be considered whether Article 9., as written, could be problematic towards maintaining a
    Customer Relationship.

  13. To the question of how relevant is the REALTOR Code of Ethics and ARTICLE 7., to “mere posting” listings. Expenses Related
    to the Transaction:
    “A REALTOR® shall, prior to the
    signing of any agreement, fully
    inform the signing party
    regarding the type of expenses
    directly related to the real estate
    transaction for which that party
    may normally be liable.” Notwithstanding Interpretation 7.1: “In explaining fees for services, the REALTOR® shall
    not state or suggest that the type or level of fees is
    based on direction from a real estate Board, Association,
    Institute, Society or Council to which the REALTOR®
    belongs.” — which isn’t a service related point per se’ anyway, ARTICLE 7., does not pertain to “mere posting” listings in its plural sense.

  14. To the question of how relevant is the REALTOR Code of Ethics and ARTICLE 6., to “mere postings: “REALTORS® shall ensure that agreements regarding real estate transactions are in writing in clear and understandable language, expressing the specific terms, conditions, obligations and commitments of the parties to the agreement. A copy of each final agreement shall be furnished to each party upon their signing or initialing, and shall be dealt with in accordance with the instructions of the parties involved.” Technically ARTICLE 6., is not applicable to “mere posting” type listings per se’ because, by their nature, “mere posting” type listings or actually seller’s, are not required to have a REALTOR® involved in writing a prospective buyer’s offer or Agreement.

  15. To the question of how relevant is the REALTOR Code of Ethics and ARTICLE 5. Written Service Agreements to “mere postings”:
    “A REALTOR® shall ensure that all Service Agreements with consumers with the exception of Service Agreements with Buyers are in writing in clear and understandable language, expressing the specific terms, conditions, obligations and commitments of the parties to the agreement.” In truth, the specific Service Agreement in Ontario that relates to “mere postings” doesn’t comply with the spirit of the subject Article. The reason for this is because the applicable Service Agreement can’t be clear about the nature of “mere postings” in the absence of a full correlation to the relevance of the Agency working relationship as it relates to said Agreements. The “mere posting” Service Agreements merely refer a reader to a separate form that independently speaks to the subject of Agency!

  16. In reply to Brian’s apples and boat-post. . .

    Maybe there’s an “app for that,” Brian.

    Or at the very least, a recipe …

    We in the industry that is spinning violently out of control are sometimes feeling like we are working blindfolded.

    Or speaking of boats, a rowboat without oars… simply adrift in a sea of whirlpools.

    And then there are the adroit posts that find hecklers in the midst. So sad.

    Like I said in another post, it would be useful if we were all able to row the boat in the same direction instead of often, in current times, going round and round.

    Can’t see the North Star through the fog of the misanthropes, at times. For those who don’t like the business and those who don’t like others in the business there is likely a different calling where their expertise would be useful.

    “through a glass darkly” – definition:

    To see “through a glass” — a mirror— “darkly” is to have an obscure or imperfect vision of reality. The expression comes from the writings of the Apostle Paul… (Quoted) © 2005 by Houghton Mifflin Company.

    Carolyne L 🍁

    • Carolyne,

      What I find so sad is that you feel entitled to respond to Brian’s post here, instead of under the article where he submitted. It’s like you are “working blindfolded” and “without oars” when you undertake just to decide where to plant your submission to REM. This fine REM platform also has a “reply” button just to make it even simpler for the technically challenged, however you’re also the only one who has complained about the functionality of said “reply” button, or perhaps you really meant to complain about its existence!

  17. Alan M.,
    Consumers who enter a Mere posting agreement with a registrant almost universally obtains all the benefits contained in provincial legislation. Often for $99 or less a consumer gets so much value for $99 or less it would be crazy to ignore. This is not an alternative to a Full Seller Agency but rather an opportunity to capitalize on foolish registrants looking to make a quick buck. That said the fear of ORE to educate consumers on their rights keeps this opportunity hidden behind the veil of secrecy that is ORE today.
    The Consumer only needs to know:
    1) CREA or a local mls does not dictate how registrants are required to act, this is left to the provincial body.
    2) Errors and Omission Coverage is immediately accessible
    3) Registrants cannot bypass REBBA through opting out of regulations included in REBBA
    4) RECO does not care what CREA or OREA or any MLS says in Ontario
    5) RECO cannot even charge OREA or an MLS system or a Franchise real estate company because RECO has no jurisdiction over them.

    Finally when a registrant takes a “mere Posting” all REBBA requirements ( including the Code of Ethics for All Registrants ( not just REALTORS)) apply. A registrant cannot opt out under any circumstances.

    So, if a mere posting has incorrect room sizes or lot dimensions or does not disclose bylaw/permit infractions that a registrant is required by legislation to investigate the Registrant is still liable. Yes, after RECO convicts the Registrant for a breach where the Registrant has an agreement with a client to pay any damages the Registrant would encounter as a result of misrepresentations of a seller when relying upon listing information supplied by the Seller, then the registrant can sue the Seller in civil court to get reimbursed for those damages.
    The above said unless the Registrant fully disclosed this in full terms a layperson could understand he/she would lose that civil case and then with a written copy of the court proceeding verifying the Seller was not adequately informed, bring their own RECO charges against the Registrant.

    We are creating a website for consumers where they can access the information needed to protect their rights, right now. As non-registrants we can remove the veil of secrecy because the parts of the Code that require silence do not apply to us.

    Some registrants ( probably less than 15%) will appreciate the value this kind of consumer education creates while the majority will fear it. The fact is the law is the law and unethical registrants who skirt, bypass or ignor the law need to be held accountable by the public. We will use RECO’s ask Joe articles to prove points, decisions on the RECO website as support documentation and the plethora of googleable info links to solve this problem.

    Registrants can assist in the designing the site by dropping us an email at [email protected].

    • Ross,

      If you would like to challenge any of the points in my related emails to the subject of “mere postings” please feel free — I understand the subject.

      Ross, your following statement is convoluted in its brevity, but beyond that it is ridiculous: “Consumers who enter a Mere posting agreement with a registrant almost universally obtains all the benefits contained in provincial legislation.” First of all Ross, the Provincial Legislation has been worded so as to largely mirror what is contained in the REALTOR Code of Ethics — otherwise the REALTOR Code of Ethics would be nullified. Consequently the Articles need to be addressed one by one to be understood.

      Ross, you make claims that are simply silly, by saying: “CREA or a local mls does not dictate how registrants are required to act, this is left to the provincial body.” A local Board or Association handles Registrant to Registrant Complaints and the Provincial Regulatory Body handles complaints from consumers. MLS rules are subject to enforcement, so why would you try and cloud the subject. CREA is entitled to protect and promote its trademark entities, by law, and this is indirectly acknowledged in the Provincial legislation, as it must be.

      Ross, you continue to make statements like the following that really mean nothing, but are presented as an enlightening point: “Registrants cannot bypass REBBA through opting out of regulations included in REBBA” A Regulation either applies or it doesn’t apply based on the pertinent Agency Relationship.

      RECO doesn’t need to charge any Franchise because the Franchise can’t function without Registrants, whom RECO can charge — once again you don’t have a point.

      Ross I think you might do better if you tried to address my points one by one, but I won’t hold my breath!

      I will give you points however, for responding as yourself.

  18. To the question of how relevant the REALTOR Code of Ethics and Article 4. Is to “mere posting” listings: “A REALTOR® has an obligation to discover facts pertaining to a property which a prudent REALTOR® would discover in order to avoid error or misrepresentation.”

    Article 4. Is one of the most interesting as it relates to “mere postings” because a consumer simply wouldn’t know its relevance and would be more than likely to believe it is applicable. This could be true for both seller’s and buyer’s even if they have received Full Agency Disclosure. This Article is one of the strongest arguments against “mere postings” ethically — particularly as it relates to unrepresented buyer’s.

  19. The idea of a mere posting is that we are not obligated to provide fiduciary duties to the seller. We are simply offering exposure to Realtor.ca. So those duties and obligations do not apply and that is agreed upon by the seller and the brokerage at the time of listing…so no conflict!

  20. To the question of how relevant are “mere posting” listings to the REALTOR Code of Ethics and ARTICLE: 3. “Primary Duty to Client

    A REALTOR® shall protect and promote the
    interests of his or her Client. This primary
    obligation does not relieve the REALTOR® of the
    responsibility of dealing fairly with all parties to
    the transaction.”
    As it states, Article 3. reinforces that the Client comes first, by virtue of Duty over a Customer — consequently Article 3. doesn’t fundamentally apply to a “mere posting” type listing.

  21. To the question of how relevant are “mere postings” to the REALTOR Code of Ethics and ARTICLE 2. “Disclosure of Role – Agency

    A REALTOR® shall fully disclose in writing to, and is
    advised to seek written acknowledgement from,
    his or her Clients and those Customers who are
    not represented by other Registrants regarding
    the role and nature of the service the REALTOR®
    will be providing. This disclosure shall be made at
    the earliest possible opportunity and in any event
    prior to the REALTOR® providing professional
    services which go beyond providing information as
    a result of incidental contact by a consumer.”
    Article 2. does apply to “mere postings”. However, the real question is: is Article 2. being adhered to by everyone (registrants) who offer to list “mere postings”? I’ve seen evidence to suggest that some of these seller’s are not having any direct communication with the listing brokerage.

  22. To the question of how relevant the REALTOR Code of Ethics is to “mere postings”, lets start at ARTICLE: “1. Informed of Essential Facts

    A REALTOR® shall be informed regarding the
    essential facts which affect current market
    conditions” The aforesaid is intended to apply when the seller is primarily a client, consequently it has little relevance to a “mere posting”.

  23. I suppose it should come as no surprise that there would be contributors here on REM who would think that the subject of “mere postings”, as it relates to their impact on organized real estate, is limited to those industry members who offer said product.

    Organized real estate is a huge industry and because of the salaries that we are able to accommodate at CREA we should be a sophisticated industry, in terms of the initiatives that are generated from our governing body and in terms of the information they (CREA) put in front of us. The fact of the matter is that scholars have generated research papers that speak directly to the fundamental nature of this industry and yet we would seem to be entirely oblivious to this research.

    One such research paper that is pertinent to organized real estate addresses the stigma that has been traditionally associated with commissioned sales, in great detail. One sentence in one of these reports particularly caught my eye, as in my opinion it reinforces the overall damaging nature of “mere postings” to organized real estate — insomuch as they exacerbate a preexisting problem and as such are much like a virus! The quote I’m referencing is the following: “A real key to managing customer stigmatization is for the agent to obtain and maintain a clear understanding of the value of the agent in the sales process.” The simple fact of the matter is, that “mere postings” are an attack on the value of the sales agent in the process, and consequently represent an attack on organized real estate!

    CREA’s national advertising campaigns have already been criticized for their lame content, but more importantly, we need to recognize that we have a bigger problem that can’t be corrected with an advertising campaign — because you can’t correct a wrong, with an advertising campaign! The following is a link to the report I was referring to here; ironically this report came out four months prior to the meeting and vote in October 2010 regarding the Consent Agreement. http://www.baylor.edu/business_new/kellercenter/doc.php/194291.pdf

  24. “Dealings with other registrants
    7. (1) A registrant who knows or ought to know that a person is a client of another registrant shall communicate information to the person for the purpose of a trade in real estate only through the other registrant, unless the other registrant has consented in writing. O. Reg. 580/05, s. 7 (1).”

    The fundamental defining characteristic of a “mere posting” type listing is that the seller is not a “client” of the listing brokerage, it is the fact that they are not a client that makes it a “mere posting”.

  25. Probably the most emphasized and taught aspect of our practice within organized real estate is: Agency Law. For a veteran real estate practitioner to ask the following question publicly, is an embarrassment to organized real estate: “Are mere listings / postings subject to the same seller property “interaction” rules and regs, as are regular listings?” In addition, the asking of the question further demonstrates that as an industry it was more than likely that the delegates who voted to approve the proposed “Consent Agreement” in 2010, in fact attended a meeting where there was no “meeting of the minds” but despite this a legal and binding contract was subsequently entered into with the Competition Bureau of Canada.

    Carolyne, as you often do you’ve taken this discussion down one of your rabbit trails, but in this case you’ve offered some scenarios in the form of an hypothesis — after first having admitted that you’re not even clear on the fundamentals of the discussion. This would make for some good entertainment if it wasn’t so entirely bizarre. Normally when people contribute to a post they want to contribute what they know, instead of demonstrating what they don’t know, and then try to substitute a conjured up theory to replace what they don’t know. I presume you must be the Broker of Record for your name-sake brokerage and consequently would have a higher obligation to understand Agency Law?

    Carolyne, the following quote of yours has nothing to do with this discussion, but is bizarre in its own right: “I was recently denied a “viewing / check out of the listed property” appointment when I clearly said that I was honestly pre inspecting for a buyer who had asked me specifically to do so. The office said the agent had specified no appts unless the showing/viewing agent had a real live buyer in tow. My appointment request could not be confirmed. How would they know if bringing along a client that said person was just a nosy neighbour or a friend of mine. A little ridiculous?” It’s more than a little ridiculous that the listing Broker couldn’t trust that you wouldn’t try and deceive them by bringing an actor! You also didn’t indicate that you made any attempt to speak one-on-one with the listing agent, to see if he/she could answer your additional questions that you allege weren’t already addressed within the listing information. One reason that a listing brokerage may not consent to such a previewing is: because some competitors aggressively protect their farm areas (territory marking) by trying to be the first one (agent) in the door — as a means of impressing the seller(s) when they see the subject business card on their table. I’ve never had this problem myself, but apparently you have.

  26. PED – Ross et al
    Are mere listings / postings subject to the same seller property “interaction” rules and regs, as are regular listings?

    As points drawn to our attention in other REM posts where said “regular” agent seems to enlighten us as to how engaging in conversation with the said seller of the unlearned mere listing seller, the agent learns all sorts of things that the seller has not been told about agency, implied or otherwise, among other topics necessary to procure a sale of the subject property.

    How would the “viewing” agent have opened that discussion, one could wonder?

    Just curious regarding “permitted” engaging another agency’s seller in that sort of, what serms to be, a full out conversation.

    Is that a great method of soliciting a listing for when it expires, perhaps? Or even contract the seller – as a buyer? That wouldn’t be interfering with the listing, would it? Or would it not?

    Surely the mere listing seller, in future, would want to list with someone who has spent time enlightening “the prospect?” And maybe even hire that well informed agent to help the seller buy?

    Could this type of “conversation” maybe be defined as interfering with a listing? (Or at the least, “alienation of affection,” thinking?)

    Agents are emboldened sometimes thinking they are merely educating the public, (and that is definitely needed), but I would be concerned about viewing agents getting deeply involved in those sorts of conversations with another agent’s listing, mere listing or otherwise.

    I was recently denied a “viewing / check out of the listed property” appointment when I clearly said that I was honestly pre inspecting for a buyer who had asked me specifically to do so. The office said the agent had specified no appts unless the showing/viewing agent had a real live buyer in tow. My appointment request could not be confirmed. How would they know if bringing along a client that said person was just a nosy neighbour or a friend of mine. A little ridiculous?

    I reported back to my buyer and they elected to buy the same model listed elsewhere. They had wanted certain specifics regarding housekeeping situations regarding allergies.

    The subject house oddly enough expired and the following year sold in a lesser value market. With another agent.

    Brings back a memory of an old training method that was promoted in offices in the early 80’s and perhaps so, even today: how to prospect for buyers – make an appointment to view a listed property purely for purposes of checking it out for engaging the seller as a would be buyer – usually around the dinner hour when the owners are likely to be home, just a quick walk through – engage the seller in specific conversation; be friendly – ask the seller have they bought yet. Answer no.

    Engage seller in “buyer discussion,” (reinforcing mental thinking as not interfering with “the listing”); ask what they are looking for to buy, and where?

    Offer to show them a brand new listing you have or that someone has just listed. WOW! This method was actually taught and an office colleague made a career of so doing. Worked for him.

    First, in today’s environment, sign up your sellers to a proper buyer agency, simultaneously. Explain what a hypothetical situation might occur were they to just drop in at an open house.

    And instruct your sellers not to engage in conversations in their home, with viewing or showing agents; tell your sellers to let you know about such endeavours, and tell your sellers if the other agents have any questions, to contact YOU to ask such. Perhaps read my old consumer education article: “Insider Trading.” After all, you have been hired to do your job.

    * INSIDER TRADING – Be Careful What You Say – and to Whom
    (How much did you divulge already?)

    http://www.carolyne.com/caution.html

    Carolyne L 🍁

  27. PED’s following comment to Corolyne here is absolutely shocking: “I don’t even know if a mere lister is required to present anything other than the Working With a Realtor brochure, if that.” Given that PED is supposed to be an experience practitioner and wouldn’t be clear regarding this point, could only mean that there are other practitioners who could echo the same sentiment.

    There shouldn’t be any doubt whatsoever that as a bare minimum the “Working with a REALTOR” brochure should be presented to the Seller of a “Mere Posting” and explained. Other Provinces in Canada have even replaced the Working With a REALTOR brochure with a new and expanded version (document) to better explain the subject of Agency Representation to real estate consumers. The need for a “mere posting” Seller(s) to receive Agency Disclosure is as great, but surely even greater than those who would receive Full Agency Representation. The absence of such disclosure could give rise to an implied Agency.

    This is just one more example of the reckless beast we know “mere postings” moving around in the real estate marketplace having potentially broken its chain that would connect it to Agency Disclosure. RECO can’t be expected to come on REM and speak to every topic that comes up, but nothing should be holding them back from shedding some light on this one, in the interest of consumers!

      • I concur PED. I work alone. I don’t take mere posting listings either; and of course I was not in attendance at the Nfld referred to CB meeting. Only Boards could vote.

        But my query was in regard to permissibility of agents engaging in “teaching” conversation, engaging with other agent’s sellers, when the seller is part of the mere listing apparatus – a contract, offering advice where none was sought out possibly.

        Sometimes called “leading the (witness?)” … in this case the listing brokerage’s client/customer???

        Could perhaps be viewed as upstaging the knowledge of the mere listing brokerage people, how smart they are or aren’t (or perhaps speaking disparagingly about???), who may have been under contract NOT part of which was to supply “education?”

        Although certainly “agency” would have, could have, should have – been explained, one would think. By the seller’s rep, whatever his designation.

        Personally I find the discussion quite fascinating. It draws out how relationships within the industry can get in the way of helping the consumer buying and selling houses.

        We all learn from each other. It’s what makes the world go ’round. Alice said, as she looked down the rabbit hole :)

        Carolyne L 🍁

      • PED,

        Indeed, and that is precisely the attitude that was required, to breath life into the reckless beast (mere postings).

  28. Carolyne, I don’t know if fsbo sellers receive any instruction except to say that I have seen many fsbo sellers, when promoting their non-registered lister state that they have received advice throughout the process. If true and there is no reason to disbelieve them, non-registrants have engaged in trading without being registered and registrants as mere listers have taken on implied agency. That practice will come to an abrupt halt the day a seller’s smart lawyer enjoins a mere listing brokerage to a suit brought against them because sellers, particularly fsbos, don’t understand agency, much less implied agency.

    Over a year ago, RECO did confirm to me that a brokerage is required to verify all information they place on a listing, mere listings included. I presume that would be strictly from a REBBA offence standpoint and not civilly if the brokerage and seller agree to customer service where that line isn’t crossed. I’m not too sure if the courts under common law would make REBBA’s verification requirement overrule a customer agreement unless implied agency is involved.

    Having said that, it’s my opinion that the Ministry and by extension, RECO, are allowing a double standard to exist between mere listers and full service registrants – one lax, the other stringent which forces the boards to do the same. I don’t even know if a mere lister is required to present anything other than the Working With a Realtor brochure, if that.

  29. Discussion box reply doesn’t work, so posting here:

    PED – Do mere listings receive any instruction at all?

    The last time I heard of an agent measuring the “outside” of a property, as noted in a recent mere listings post, she did so to prove square footage, that she documented on her MLS listing.

    I happened to have a copy of the builder’s footprint of that model, because I had sold the model on nearby streets. I knew the square footage measurements taken were not correctly presented.

    I sold her brand new listing, only days on the market, but I attached a copy of the listing as a schedule and circled the point of reference re the square footage, and had my buyer and her seller acknowledge the notation circles with their initials.

    As well, I inserted a clause in the offer addressing the specific issue. “The buyer and seller acknowledge…”

    The listing agent who was in the business the same number of years as me, at the time, said she didn’t realize she had to, what I refer to as, “discount the divets.”

    She had not accounted for the double garage being “inset” into the dwelling, the front door being set back into the roofline, the upper level not being pulled forward to match the contiguous roofline of the main floor, etc.

    I was told I was operating in overkill and I needed to get over myself. That the “house is what it is, as viewed by the buyer.

    Sold sign went up on the lawn, and the transaction closed. The buyers still live in the house, many years later.

    Here is a link that my readers have found useful over the years, relative to offer check points. Does the mere listing taker review this sort of information at offer time? Or is the main concentration fixed on price (and or commissions required?).

    http://www.carolyne.com/offer.html

    Carolyne L 🍁

  30. With all the talk that has transpired around the subject of “mere postings” there hasn’t been any kind of a follow-up by way of anecdote — here anyway — in relation to a Real Estate Practitioner showing one of these listings and talking to the seller(s) about what they have agreed to and what they understand about what they’ve agreed to. These seller’s are not under an Agency Relationship and we are free to converse directly with them. I’m going to comment on one particular experience.

    This experience of showing a “mere posting” began by booking an appointment by using a phone number that is supposed to be the sellers, however my call was answered by some third party company mentioning a real estate related name. The seller was diligent in returning my call and accommodating my request for a showing. When I arrived at the subject property to show the home the first thing that I noticed was a “For Sale” sign that belongs to a particular Brand of a company that is in the business of Private Home Sales. In other words, the Brand and Logos of this “For Sale by Owner Company” are now, by default, indirectly associated with all the registered trademarks of the Canadian Real Estate Association. In all of Canadian business, is there another example where one organization has ever been obliged or induced by a Federal Government Agency to contaminate their legal trademark entities — either directly or indirectly? The aforesaid subject is pertinent, potentially, to all business interests in Canada that have a vested interest in protecting the goodwill associated with a trademark entity?

    The subject “mere posting” seller, in this case, is a very nice and educated individual, and through the course of our conversation relayed to me that they didn’t have any idea whatsoever, in terms of what their Agency Relationship with their listing brokerage consisted of or what it meant — in regards to the modified obligations (REALTOR code) and or Client status verses Customer status. This Seller dealt directly with the For Sale by Owner Company. If at some point there had been an Agency Disclosure Form presented, this Seller had no recollection of it, and in any event it wouldn’t have been explained by the licensed real estate practitioner. All indications were that the: For Sale by Owner Company was taking the lead regarding any direct interaction with this Seller.

    While the listing real estate brokerage is responsible for the accuracy of the information that is displayed on the Multiple Listing Service, the Seller advised me that it was the representative from the “For Sale by Owner Company” who actually took the measurements inside and out, for this home and listing. The aforesaid event would mean that, by default, an Errors and Omissions coverage held by a licensed practitioner is being extended, theoretically at least, to cover a: For Sale by Owner Company. The Seller also advised me that the representative from the For Sale by Owner Company counselled them when they asked how much selling commission should be offered to a cooperating brokerage, and recommended $1.00. The effect of the aforesaid is that someone who is not licensed to use a CREA trademark entity or influence the goodwill attached to any CREA trademark entity, has been put in a position where they can do exactly that — as a direct result of the existence of “mere postings”.

    With regards to the subject “mere posting” listing, the zoning is incorrectly represented, which is a fact that can be verified without even visiting a property — so what does this say about the potential integrity of the other information on the Multiple Listing Service (MLS) that would require a physical visit to the home, to verify?

    I’ve commented in the past about my concern over CREA’s trademark entities being potentially abused by “mere postings” as it would relate to unrepresented buyer’s who would approach one of these listings directly themselves. This aforesaid situation creates the potential for them to misinterpret the goodwill that has traditionally been attached to CREA’s trademark entities, as a result of overestimating the listing brokerages obligations — which would be ethically scandalous. If a seller of a “mere posting” can be in the dark about what their No-Agency status means as compared to what a Full-Agency status would mean, it just reinforces the inherent problematic nature of the reckless beast we know as “mere postings!

    • I should also mention that this particular subject “mere posting” Seller was also proceeding on the basis as though REALTOR Buyer Agency Contracts don’t exist, as there was no understanding whatsoever as to how said contracts could potentially impact or relate to a potential sale.

  31. One of the most puzzling aspects of the “mere posting” discussion is why there hasn’t been any related discussion regarding the subject of: Errors and Omissions Insurance Coverage. The fact that any Real Estate Boards or Associations would delete the practical common-sense rule that had required real estate practitioners to personally visit any and every property that they might list or sell, should have been seen as a serious potential change to an Insurers “Risk Exposure”. As a matter of fact, if our Errors and Omissions Coverage is still applicable even when a REALTOR hasn’t personally viewed a property, this should have been seen as a: “Material Change to a Risk”. When an Insurance Underwriter has identified a “material change to a risk” they should have given themselves a contractual option to: terminate the policy “Ab-initio” or to stipulate to a higher premium — if they are willing to remain on the risk.

    One explanation as to why an Errors and Omissions Insurer might not consider “mere postings” as a: material change to a risk, could be because they see any claims that would arise as a result of a real estate practitioner not personally visiting a property, as amounting to: Willful Negligence. After all if a practitioner has willfully decided not to visit a property that he/ she has listed or has written an offer on, perhaps it could reasonably be argued to amount to: Willful Negligence, and hence any claims that might consequently materialize would be excluded from insurance coverage!

    Should it be the case that “mere postings” are indeed excluded from any Errors and Omissions Insurance Coverage, this is enough of a reason on its own why the practice should never have been allowed!

  32. Shut down the MLS – without it, mere postings are worthless. People will need to go to the Realtor to get the information or the Realtors website. Anyone that is doing mere postings will then have to engage in higher service. Which they will not

    • Steve,

      The truth is that no one has really established that there is any consumer value to “mere postings” with the Multiple Listing Service. We know there are those brokers who seek to profit by offering “mere postings”, however. The MLS is a trademark entity with a proven concept that has been tightly intertwined with the REALTOR trademark, in a Full-Agency context. By pushing forward the concept (mere postings) the Competition Bureau of Canada was working on the presumption that since some brokers saw a chance to profit by and from “mere postings” the idea must also be in the best interests of competition and by default, consumers.

      In reality those who sell “mere postings” are charging for a product that doesn’t have a determinable actual consumer value, at the time they sell it. The fact that a home may sell as a “mere posting” doesn’t on its own establish inherent value in using this approach — the home may have sold anyway were it not on MLS. Were a buyer prospect to purchase a “mere posting” in part as a result of a false sense of comfort or security, as a result of not understanding how the REALTOR Code of Ethics is modified pursuant to “No Agency” (and this will happen), it would obviously be tantamount to an ethical crime — were it not for the fact the Competition Bureau of Canada has sanctioned the practice!

  33. Question, It’s been 2 years now and how many boards still have not started supplying the “alternate feature sheet” field to CREA in their RETS feed??

    What boards have not provided their members education on how best to use this field and why they must??

  34. Alan M, the media knows how to get eyeballs reading an
    article and as a result comments to increase their Google rank. We, as
    Realtors, can’t blame them for knowing how to attract an audience. Like our industry,
    theirs is a catch twenty-two in that when they publish an article that relates
    to real estate price growth or how one house produced hundreds of visitors and dozens of offers, they’re seen as some shills for the industry. When they produce one proclaiming the end is nigh, the very same people see them as truth tellers.

    Carolyne, good question. Because the rules allow brokerages via council authority (RECO et al), to legally opt out of fiduciary judiciary even though this runs counter to the reason we’re so regulated to begin with, I don’t believe there can be a level playing field until registration requirements and disclosure rules change. I’m still trying to wrap my mind around the fact that mere listers can take the mandatory courses for the sole purpose of obtaining valid recognition as a real estate practitioner but have no need to actually understand the nuances of representation or property law; bylaws; mortgages etc., or desire to keep abreast of those because they their sole purpose is to flog access to the MLS system without commitment to the customer.

    That distinction needs to be explained to the general public because for the most part they presume we’re all providing the same levels of service.

    Like the distinction between attorney and para-legal that’s all I really want of our regulators and it’s not asking much.

    • Ped,

      Like our industry, good journalism is about: competence and ethics. I do blame them for not taking the time to understand the issues, ahead of a quick and easy headline. At that rate a newspaper could hire anyone, or better yet, save some money and pick the least expensive submission from a freelancer!

  35. When mere postings were allowed, brokerages offering same were given a right that no full service brokerage is allowed – self-promotion within the body of the listing via the right to refer to their own web site.

    Had the tribunal ruled against CREA this time, even sellers would have had the same right. Full service brokerages would have been relegated to third class citizens within the very system they pay to develop and maintain.

    By demanding release of data accumulated by boards, both the past and present Competition Commissioners decided that the government has the right to dictate to a private organization how their business model will work and operate – that’s a first. Ironically, the ruling for CREA stopped short of doing exactly that. But, the CB will probably appeal to a superior court there too..

    The CB, media and fsbo providers, have all managed to mislead the public into believing that the information contained within a board’s system is public domain simply because the information relates to their selling activities. That’s akin to demanding access to all of the data within Facebook because they use the service or the rights to KFC’s secret recipe because they buy their chicken. Meanwhile, the only sales information under public domain is actually held by the province yet the CB knows they can’t win a suit requiring the provinces to release land titles information for free, to all of the general public, and so go around them by taking aim at organized real estate instead.

    I had no doubt about this outcome or the first CB go round with TREB, and while I think the CB’s case against TREB is not sound, I don’t have much faith on the outcome with the fall hearing considering it’s been bounced back down by a superior justice.

    • There are so many layers and levels, how can a level playing field ever be established that breaks no rules someplace in the midst, PED, all in the expediency of doing business by providing to clients all they need to know upon which to make their best choice decisions.

      Note that the brokerage who posts mere listings is responsible for the accuracy of of the seller’s content published. Is this a mashing down of the client/customer relationship? In fact creating a new breed of cat?

      A positive result of a mere listing, possibly, might be that it provides the sold information making CMA’s more complete for use of appraisers? Since the sold information would have been required to be reported by the brokerage that loaded into MLS systems?

      Our industry numbers require new blood membership to keep the boat afloat in all the arenas: whatever contributions are made via contract at any given office/brokerage. They have to pay to keep the lights on.

      Next comes Board(s), plural, because many within the ranks must pay fees to more than one board in order to access this hallowed information that the fight is about (no board membership, no MLS access); and there can be no provincial or federal association membership without board membership first in line; yet the concept of the brouhaha is to make this record keeping process wide open, available for free to the public at large – but not free to the membership. This is a grand example of oxymoron, is it not?

      Will membership also be permitted access for free to the same information, once the public at large has free, open access?

      Is it right to bite the hand that feeds you? then no longer required to must have board(s) membership, PED? Will the whole access to MLS and Teranet information be a free for-all? Including members?

      Just a thought: Or would a member simply elect to work from home and have their cleaning lady or lawn crew acquire the information, since it would cost them nothing – to sell back to the member for a fee (watch to see new companies form to collect for free and sell to members – under the pretext of saving search-time), or provide to a member for free if they buy a new vacuum or an insurance policy maybe, since that person would just be a member of the public, having direct access, that the member not only paid to collect, preserve and process, but paid to allow the public to have it for free. What’s wrong with this picture?

      Then of course follows City bylaw rules applied specifically to the real estate industry, municipal/regional, provincial and federal governing processing costs, rules and regulations – and of course all the related real estate ‘fee’ (Teranet, etc.) structures.

      Everyone, it seems, except the sales reps/brokers, as private corp employees and or public servants, has pension funds retirement programs in place, and many have sick day and disability benefits, paid holidays, dental insurance; some even drive company cars.

      All inclusive except none of it applies to the base of the whole support system – the dues paying membership at the grass roots level.

      Perhaps this message plays into Ahria’s thinking – about what should be told to a candidate new hire before he is accepted into the real estate field, who once knowing the innards and subset workings would choose to move into a career providing all the benefits and no need for hazard pay.

      If he/she is truly interested in joining the field, it might be useful to apply to one of the afore noted levels rather than sales per se, if they are indeed planning with their own future in mind.

      It’s not about the money: the commissions involved; it’s about the COGS. Yes, cost of goods sold.

      No different in the real estate field than it is in manufacturing, or any other industry. Although a rep is not purchasing something to re-sell, he does have a ‘cost’ of doing business, not unlike COGS. Costs that must be paid before gross income can even begin to be established on paper. And bear in mind that independent contractor definition (freedom status) only applies to taxation, nothing else. Tell the new, about to be hired, how this really applies, or not – to him or her. You get to make your own decisions, reporting to no boss (not exactly).

      Carolyne L

    • PED,

      I find the absence of balance in the Globe and Mail’s article of May 01, 2015 regarding the Competition Tribunal’s decision astonishing. Were balanced journalism a teeter-totter, CREA would need the aid of a, City of Toronto, Fire Departments Ladder-truck, to get down from their end of said: teeter-totter! Have you ever noticed how Globe and Mail rhymes with: Mop and Pail?

    • Its simple, SHUT DOWN REALTOR.ca and then there is no more problem. Put the listings back into the control of the realtors. With IDX and listing sharing, you brokerage can become their own MLS system. We pay for this thing, so we can take it down.

Leave a Reply