Remind Consumers: They Are What They Sign! #506

Sep 18, 2018

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Posted by
Chris Johnston
B.A., LL.B.

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When dealing with consumers, licensees will encounter those who do not read, write or speak English well, or even at all. While licensees are required to be proficient in English as a part of becoming licensed and meeting the English language proficiency requirement of Rule 2-6.1 of the Council's Real Estate Rules, consumers naturally have no such requirements.

Licensees should make efforts to encourage consumers to read and understand all transaction documents including the Contract of Purchase and Sale, disclosure forms and any forms required by the Real Estate Council of BC. The new agency forms prescribed by the Council are available in English, French, Chinese, Persian and Punjabi at https://www.recbc.ca/licensing/forms.html.

How that encouragement can be achieved depends on the situation, the licensee involved and the ability of the consumer to read, write, speak and/or understand English. There is no standard way to ensure the consumer understands and you can lead them to water but cannot make them drink, as the saying goes.

Some helpful tools to encourage a consumer to read and understand the transaction documents may include:

  1. Asking the consumer about their language abilities at the outset;
  2. Encouraging the consumer to have an unofficial translator available. This could be the licensee or someone from their office, a relative or friend of the consumer or someone else to assist in translation, if required;
  3. Asking the consumer if they understand the documents once they have been explained and whether they have any questions before they sign and initial the documents;
  4. Documenting all communications with the consumer on any language issues; and
  5. Recommending legal advice, where appropriate. Doing what you can to encourage the consumer to understand the transaction documents will make the deal smoother and reduce claims against the licensee as well as disputes between buyers and sellers. Ultimately, it will protect the consumer and licensee alike.

In a recent case1, a consumer who failed to read the contract they signed and claimed to have "relied on their Realtor," was not successful in their lawsuit against the licensee acting for them. The judge noted:

"I do not find the claimant's evidence compelling when they say, 'We just signed and relied 100% on our realtor.' As experienced, highly educated people, they either knew or ought to have known not to sign legal documents if they did not know what they are signing. Their failure to make any enquiry of their realtor does not enhance their credibility.

"Presumably the claimants went to (the licensee) because he could explain the various legal documents they were being asked to sign. They were spending well in excess of a million dollars. A modicum of due diligence on their part could reasonably have been expected, not the bare assertion that we relied 100% on our realtor."

Expectations of licensees will vary depending on the consumer's abilities, background and education. Licensees should take greater care explaining, reviewing and translating (or recommending someone else to translate) documents for those less experienced or less educated consumers.

Encouraging consumers to read and understand documents benefits all and ensures certainty in deals. Client service does not necessarily require your literal translation services, and you may not be qualified to do so, but encouraging a consumer verbally and in writing to read the documents that will bind them is an important step in protecting consumers.

Chris Johnston
B.A., LL.B.

  1. Taghipour v. Pezesh, PCBC Unreported North Vancouver Registry No. 1323754, March 27, 2018.
   

See also:
Kim v. Lee, PCBC Unreported Vancouver Registry No. 58570, January 24, 2001.
Boltezar v. Hutchinson, Unreported Vancouver Registry No. 08-22361, October 22, 2009.

Legally Speaking is published monthly. Real estate boards, real estate associations and REALTORS® may reprint this content, provided that credit is given to BCREA by including the following statement: "Copyright British Columbia Real Estate Association. Reprinted with permission." BCREA makes no guarantees as to the accuracy or completeness of this information or the currency of legal information.

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