Real estate agents flout laws by entertaining bully bids in secret
Action particularly benefits those who represent both the seller and the buyer
It’s not enough that Toronto-area homebuyers are facing competition so fierce that list prices have become virtually meaningless and bully or pre-emptive offers are increasingly the norm. Now there’s an added twist. Some sellers’ agents say they will no longer notify other interested consumers when their client decides to entertain a pre-emptive bid, and not wait for the date they set to consider all offers.
Ontario’s real estate rules require the property seller’s brokerage to notify all other interested buyers that a “bully” offer, usually well over the asking price for the property, is being considered.
That notice allows other consumers to compete for the same property if they want to.
But, in the super-heated Toronto-area market, some brokers are including a line in their listings saying they reserve the right to accept pre-emptive offers without notice.
It is particularly advantageous to agents who are representing both the seller and the buyer. This is because they don’t have to split their commission. Agents “double-ending” a sale need written permission from both the seller and buyer to do so.
“But that doesn’t account for people who are bidding on the house who end up losing on it because their agent isn’t the one who’s double-ending the deal,” said Kelvin Kucey, deputy registrar, regulatory compliance of the Real Estate Council of Ontario (RECO).
Rules around notifying consumers about bully offers form one of the areas covered in a RECO bulletin this week which reminds agents of their obligations around competitive bids.
The bulletin puts agents on notice that they “have really got to level the playing field for consumers because this market is showing no signs of slowing down,” Kucey said.
“Offer handling,” a broad category that covers bully offers, competing bids, commissions and whether realtors are properly disclosing their own interests, comprises the biggest category — 15 per cent to 20 per cent — of about 2,700 complaints the regulatory agency expects this year.
“It makes sense in a hot market that people, who are unfortunately on the outside of a trade that they really wanted to be part of, are going to be concerned about how they ended up on the outside,” Kucey said.
It’s only fair, he said, that when a seller decides to consider a bully offer, other interested consumers understand that the bid date previously set no longer holds.
“If the rules of the game have changed, everybody’s entitled to know.
“You can’t change the rules halfway through the game,” he said.
“That’s what we’re taking umbrage with is this attempt by certain brokerages to say, ‘If we get a pre-emptive offer, we’re not going to let you know.’
“Well, no, you’re not going to do that because you are expressly required to advise people what’s going on.
“You can’t just play games like that,” Kucey said.
Agents know the rules and know that this kind of “terrible” practice isn’t allowed, said David Fleming of Bosley Real Estate, who believes RECO should come down harder on realtors who repeatedly violate the rules.
He’s among those who say that preemptive bids can limit the amount a seller gets for their property.
“I haven’t worked with a bully (bid) and we’ve done very well on offer night,” he said.
But, he added, “there are (agents) who are just out there thinking about the next deal and they’re not thinking about their long-term career. There’s zero benefit for the seller. Those agents are either giving that client bad advice or they’re working on their end game.”
Of agents who don’t want to notify other potential purchasers, Fleming asked:
“Are they lazy? Do they not want to make 20 phone calls or send 20 emails?
“If I was to work with a bully offer, I would call every single agent and then I would page them. Then I would email them. I know the rules and I need to be sure they’re followed.”
“There are (agents) who are just out there thinking about the next deal and they’re not thinking about their long-term career.” DAVID FLEMING BOSLEY REAL ESTATE
While there is a complaint process, it’s of little use to consumers in a fast-paced market where homes can sell in hours. It takes about six months on average for RECO to investigate a complaint, Kucey said.
A first offence for a violation, such as failing to notify buyers of a preemptive bid, would probably only result in a $5,000- to $10,000-fine.
The maximum is $25,000, even for a first offence, if the matter is sufficiently egregious.
“If (agents) are flouting these requirements, they’re going to be prosecuted,” Kucey said.
“It’s not going to be a warning or caution. There are going to be prosecutions and it’s just a matter of time till we get to the maximums.”
Typically, RECO revokes 15 to 20 registrations a year, usually for criminal or serious civil reasons.