The views expressed in this column are solely those of the author.
When TRESA arrived in December 2023, the ministry killed the word “customer.” The reasoning was sound. Under REBBA, the distinction between client and customer confused the public, and confusion in a fiduciary relationship is dangerous. So the self-represented party (SRP) replaced the customer, a person who is not a client of any brokerage and who receives no services, opinions or advice.
Language is conduct
Two and a half years later, I want to ask an impolite question: did the customer actually die, or did we just stop saying the name? Here is an example of how I often hear agents talk to and about sellers and landlords (and I suspect that you do, too): “I brought my seller a self-represented buyer.” “I brought a tenant to the landlord; the tenant was self-represented.” That language is common, and language is conduct. RECO Bulletin 2.7 is explicit that a representation agreement can be written, oral or implied. And that implied representation arises the moment an agent begins providing services, opinions or advice to any person without a written agreement. It clarifies that even where the SRP has signed the disclosure-to-self-represented-party acknowledgement form, conduct that contradicts the disclosure can still create an implied representation.
What ‘bringing’ implies
Now consider what “bringing” someone actually means. It means the agent found them, showed them properties and helped them toward the successful completion of this transaction. That is the vocabulary of agency. If the agent represents the seller, they did not bring a buyer to the seller; they showed their client’s listing to a stranger. The moment they frame themselves as the active party procuring the buyer, they are describing services rendered to the person the paperwork says they do not serve.
And nobody says “I brought you a buyer” for free. The phrase is almost always a remuneration claim. Under TRESA, entitlement to remuneration is captured in a representation agreement, and brokerages are prohibited from entering into agreements with self-represented parties to provide assistance or to charge for it. Many agents tell me that when they bring a self-represented party, they either get the full commission or more than they would have received had they represented only the seller. The agent claiming they brought the SRP is claiming the very relationship the SRP form denies exists. They want the commission logic of representation while disclaiming their duties. That was the concern with the customer relationship. Have we buried the word and kept the arrangement?
Leasing: where the imbalance is worst
Nowhere is this clearer than in leasing. Rentals are full trades under TRESA, subject to the same guidelines, forms and prohibitions, but the culture treats them as “lesser transactions,” often staffed by the newest registrants with the least trading experience. Consider this: an unrepresented tenant responds to a listing, and the landlord’s agent walks them through the application, tells them what to offer and coaches them on the paperwork. That tenant understandably believes the agent is helping them. Tenants are often younger, lower income and under time pressure, which means the power imbalance the SRP disclosure exists to cure is at its worst precisely where the disclosure is least likely to be given.
The missing enforcement record
Here is what should trouble us most. I went looking for the enforcement record on all of this, and the silence was the story.
To the best of my ability, I couldn’t find one. RECO’s published regulatory actions are busy. Fines for unverified square footage, unauthorized lockbox access, trust account failures and undisclosed multiple representation. The leasing files are there too: one agent was referred for arranging leases without the client’s knowledge and diverting rental funds; another for arranging a lease for someone who did not own the property. But as far as I can determine, over two and a half years, not one published decision has prosecuted the SRP framework itself. No fine for advising an SRP. No penalty for a missing disclosure form. No finding of implied representation.
There are two ways to read that silence. The first is that compliance is excellent. However, nobody who has worked in a FSBO or a rental market believes this. The second is that the violation is invisible to its victim. The SRP who received helpful advice from “their” agent does not know a rule was broken. They got the same ambiguity in service that the old “customer” received; there is no discernible difference and no clarity in communication between the unrepresented party and the represented party, and the harm looks like service. The seller or landlord on the other side closed the deal. RECO’s complaint-driven model cannot see a violation in which every participant walks away satisfied. Helpfulness generates gratitude, not complaints. The complaint-driven model isn’t activated unless a deal collapses and the SRP discovers, at the worst possible moment, that nobody owed them anything.
Conduct, not paperwork
The SRP acknowledgement form does not determine the relationship. Conduct does. And our industry’s habitual language keeps confessing to relationships the paperwork denies. If Phase 3 wants to finish what TRESA started, it should stop waiting for complaints that will never come and start auditing the file where the confession is already written: the one where an agent adjusted their remuneration because they “brought” a self-represented party they claimed they never represented.
Dixie MacDonald is a sales representative with Sotheby’s International Realty Canada in Prince Edward County and Quinte, with more than 16 years in residential resale. A trusted and effective Realtor, she welcomes referrals.
In addition to a B.A. in English Literature and two certificates in adult education, she holds the SRES, ABR, GREENre, CCRS, CCGR and PSA designations. She facilitates in the provincial real estate education program and is a professional development instructor with various boards and associations. She writes for REM and on Substack.
Dixie MacDonald Sales Representative Sotheby’s International Realty Canada 1867 Yonge Street, Suite 100, Toronto ON M4S 1Y5 t 416.960.9995 | f 416.960.3222 dixie.macdonald@
I’ve always considered (always, since it was introduced) the SRP to be pointlessly confusing. A SRP wants to be self-represented…until they can’t find a piece of info. After that, they want answers. The SRP only serves to muddy the relationships between all parties, and potentially puts the agent in a place of conflict. Get rid of it.
Further to your comment, I agree this designation is confusing. Has this Author searched the Reco complaints from the other end, that being, complaints against a Realtor for not providing advice and assistance even though the complainant had decided to be a self represented buyer. As we all know, humans will be humans, they want their cake and they want to eat it too So, yes, there have been complaints to Reco against Realtors by the public for refusing to offer assistance Of course, under the new rules and regulations they could not be found to be in error, so there were no fines issued. But herein lies a problem and it would behoove Reco to better educate the public on this issue of being a self represented buyer, The public was confused with the “customer” designation and they are equally confused, if not more, with the self represented designation. It sounds good to them because they think it will allow them to purchase a home at a lower price, but they still want the advice and guidance of a realtor. So once again I say, Reco should be providing information to the general public by advertising so that people can see it and hear it being explained, just what it means to be self represented. Of course, this is just my perspective on the issue.
I do agree that auditing by both the Broker of Record and Reco should be done to ensure that there are no “commission adjustments” for transactions with self represented buyers. A self represented buyer requires “no action” on their behalf by the Realtor, therefore no remuneration.
A very interesting article.
P. Brewitt
P. Brewitt, overall, I agree, but I tend to disagree with your last statement.
An SRP requires no action, but any action taken should qualify the realtor for compensation, as long as all of the disclosure forms are completed. An SRP that asks about well info and receives “I can’t help you” as a response (I am in a rural area and deal with urban and suburban property), if left to their own devices, could lead to a serious litigation issue if facts are not found, and the buyer inevitably looks for someone to blame. I know of a local buyer, intent on saving a few bucks, who ended up with a $10,000 bill to repair a well and lines, the condition of which was not disclosed to the buyer. Perhaps it’s just the wording of your comment.
Peter:
I take your point but somewhere in all of this, buyers who choose to be self represented need to assume responsibility for their own knowledge or conversely, lack of it. Having said that, if a seller is aware of latent defects and doesn’t disclose they should be held legally liable for whatever damages the buyer incurs. These disclosures can be part of Schedule “B” and form part of the APS without the appearance of implied agency. Frankly, I do believe Realtors are and have been in the past in the position of darned if they do, darned if they don’t.
You do raise a great point.
A good issue is raised here, though I have concerns about the entire line of reasoning. I agree this is an issue that needs addressing and thank the author for bringing it forward, I just respectfully disagree with the arguments made. I understand that publishing constraints sometimes require articles don’t have sufficient space to put forward all aspects and so I am only taking issue with the points as presented.
The entire chain of argument is hypothetical based on a hypothetical customer and a hypothetical agent in a hypothetical transaction, all acting in a predetermined manner that is then painted on to the entire industry. Nothing is ever this simple.
It is first assumed that entitlement to a fee is a direct function of what paperwork is filled out. This is very inaccurate. In real estate the fee is compensation for getting the job done, not for who signed what document. Notice no client ever complains about our fees until after the buyer/tenant has been found. Then everything changes. I once heard an economist half jokingly describe this as a principle based on the world’s oldest profession, that “Value of services rendered diminishes greatly after the services have been rendered.” This applies directly in commercial real estate.
Before tying this together, I must comment on one more concern. The arguments imply that consumers are innocent and unsophisticated while agents are just waiting to take advantage. They are not and they are not.
Many, if not most, tenants/buyers refuse to sign any documents in commercial plus if you start putting paperwork in front of people before establishing a relationship, things go south in this business. They don’t sign anything because signing something only increases liability on their part. I can’t argue with that.
As go agents, most are not waiting to take advantage of tenants/buyers, though I agree the client would be better served if they would just sign agency. Note, most sophisticated institutional tenants do work with their own agents for that very reason.
So, to tie this all together, if we are going to deny an agent compensation because a tenant wasn’t a signed client, then I want to get paid when I work for months for nothing. Even when we do bring a tenant/buyer as a signed client, the seller/landlord still wants to reduce fees. Indeed, you cannot have your cake and eat it too.