Commission

Paragraph 8 of the Multiple Listing Contract—Seller’s Obligation to Refer Inquires and Offers; Commission Lost, Contingent Upon Giving Written Notice #376

Legally Speaking

By Gerry NeelyB.A. LL.B. Paragraph 8 of the standard Multiple Listing Contract requires the seller to refer and deliver all enquires of offers to purchase the listed property to the listing agent. It can be a lifesaver for a listing agent whose claim for commission would fail because his or her acts didn’t fall within

Contract of Purchase and Sale – Clause 18 #344

Legally Speaking

By Gerry Neely B.A. LL.B I understand it is the standard practice of a licensee to explain the significance of the Contract of Purchase and Sale terms to the parties to it, before it is signed. This is particularly desirable for Clause 18, in which the parties agree there are no representations, warranties, etc. other

Commission Claim Lost, Restrictive Contract Wording #339

Legally Speaking

By Gerry NeelyB.A. LL.B. Earning a commission is very much an all or nothing venture. It is made riskier by the court’s strict interpretation of a listing contract to determine whether the acts of an agent who claims a commission, fall within the precise wording of the contract. It is important that an agent not

Finder’s Fee; Unlicensed Person Entitled to Enforce Payment #334

Legally Speaking

By Gerry NeelyB.A. LL.B. A Supreme Court of British Columbia judge decided an individual who was not licensed as an agent or salesperson under the Real Estate Act was entitled to payment of $50,000 for introducing a buyer to property sellers. Since Section 47 of the Act bars a claim for commission or other remuneration for an

Commission, Receiver/Manager Can’t Be Sued Personally for Sale of Unionized Business, Seller Discharged Employees, Not Liable for Payment Made by Buyer to Settle Grievance #327

Legally Speaking

By Gerry NeelyB.A. LL.B. An agent who is given a listing of real property by a receiver/manager licensed under the Bankruptcy and Insolvency Act can confidently expect to be paid if a buyer contracts during the term of the listing to purchase the property in question and completes the purchase. Unfortunately, the agent with a listing from

Commission Claims Made in Small Claims Court #275

Legally Speaking

By Gerry Neely B.A. LL.B The increase several years ago of Small Claims Court monetary jurisdiction to $10,000, opened the door for a number of licensees to sue for payment of a commission which they might otherwise have chosen to forget about. The advantage is that there are no costs, other than minor court costs,

Personal Property Security Act – Commission Trust; Contract of Purchase and Sale (Paragraph One) Restrictive Covenant; Third Party Approval of Plans Not a Minor Defect of Title #267

Legally Speaking

By Gerry Neely B.A. LL.B The last column No. 266 ended with the suggestion that licensees with independent contractor contracts containing commission trusts, might wish to file a Financing Statement in the Personal Property Security Registry in Victoria, against the possibility that the Supreme Court of British Columbia may conclude that the commission trust creates

Contract with Unincorporated Company a Nullity; Unlicensed Person Posing as Licensed; Residential Assessment – Market Value Included Not GST; Cheque Yore Spilling #265

Legally Speaking

By Gerry Neely B.A. LL.B Two decisions illustrate the risk of not using the full name of a company purchasing property, or the failure of a company to be incorporated at the date it received the benefit of an assignment of a contract. In the first case, which involved an agent’s claim for commission, the

Commission Cases #191

Legally Speaking

By Gerry Neely B.A. LL.B The importance of the exact wording of the terms of a listing contract from which an agent expects to obtain a commission are illustrated in recent decisions of the B.C. Court of Appeal and the Manitoba case which follows. An agreement between a broker retained to obtain financing for land

Commission Cases #189

Legally Speaking

By Gerry Neely B.A. LL.B The right of an agent to a commission arose in a case where the vendor refused to complete a sale because just two days prior to closing, the purchaser substituted a nominee company for himself as the purchaser of the vendor’s property. The vendor on the afternoon of the day

Interest – The Criminal Illegal Rate #151

Legally Speaking

By Gerry NeelyB.A. LL.B. In times like these we might feel that high interest rates are a crime, but they don’t become a crime under the Criminal Code of Canada until the effective annual rate exceeds 60%. Since a rate of 59% per annum baldly stated in a loan agreement would make even the most

Commission on a Sublease #148

Legally Speaking

By Gerry NeelyB.A., LL.B. A company held a very profitable sublease on commercial premises for a remaining term of approximately two years, with four successive rights of renewal of five years each. It wanted to sub-sublease the premises and told an agent that it would pay a commission to the agent if he found a

Commission Cases #128

Legally Speaking

By Gerry Neely B.A. LL.B Two recent commission cases in which the judges could have as readily ruled against the licensees were instead resolved in their favour. In the first case, the owner of a small commercial property was attempting to sell it himself. When a licensee responded to an ad and asked for a

Professional Incorporations – Continued #123

Legally Speaking

By Gerry Neely B.A. LL.B The response to the previous column discussing the lower rate of tax paid by a corporation carrying on an active real estate business confirmed that while everyone agrees that the federal deficit is too high, no one wants to be first in line to reduce it. The response also warrants

Commission – Not Payable, Lack of Effort #120

Legally Speaking

By Gerry Neely B.A. LL.B A real estate salesman in Alberta who advertised himself as a farm and ranch specialist was given a general listing in 1982 for the sale of a ranch. The only offers received were unacceptable and in April 1983, the owner agreed to renew the listing, but only until July 1,

Commissions #113

Legally Speaking

By Gerry Neely B.A. LL.B There are occasions when a licencee agrees reluctantly to pay part of a purchaser’s costs out of the licencee’s commission, to make a deal between a cash-short purchaser and the vendor. Since this helps the vendor, the licencee might well think that the licencee’s decision to help the purchaser is

Commissions, Garnishees and Interest #97

Legally Speaking

By Gerry NeelyB.A. LL.B. Before weave the memory of 1986 too far behind, some questions have been asked concerning several of the 1986 Legally Speaking columns. Column 90 discussed a case where an agent was unable to collect a commission where a purchaser had defaulted, and the listing contract omitted to state what the vendor’s obligation would

Commission – Solicitor’s Liability for Payment; Garnishee Orders #92

Legally Speaking

By Gerry NeelyB.A. LL.B. The decision of an Ontario District Court Judge is good news for licensees but bad news for solicitors who are too dutiful in carrying out their clients’ instructions. A vendor had accepted an offer containing in the standard form of offer to purchase the following words: “the undersigned accepts the above

Commission – Purchaser’s Default #90

Legally Speaking

By Gerry NeelyB.A. LL.B. You have a listing agreement with a vendor, a binding contract of sale is signed but the sale collapses because of the vendor’s refusal to complete. The Courts will enforce your claim for commission even though the listing contract does not specifically state what your rights are where the vendor is

Commissions – Listing Agreements for Court Ordered Sales #82

Legally Speaking

By Gerry NeelyB.A. LL.B. A recent decision in an action which is likely to go on for some time involves an owner of a foreclosed property that was sold by Court Order, who has sued the lawyer who was advising him throughout the foreclosure proceedings. The basis of the action is that the lawyer consented

Section 30 Real Estate Act #78

Legally Speaking

By Gerry NeelyB.A. LL.B. This is the section that prohibits payment of any commission or other compensation to any unlicensed person for “acting or attempting or assuming to act, as an agent or salesman.” BCREA has been asked whether payment of a tip for a tip that leads to a listing, is a breach of

Salespersons’ Duty to Obtain Highest Price #74

Legally Speaking

By Gerry NeelyB.A. LL.B. A short listing and a quick sale not only puts money in the bank and caviar on the toast, but it also avoids some of the problems for a licensee that can arise where property is on the market over a lengthy period of time and the salesperson’s familiarity with it

Commission – Open Listing #73

Legally Speaking

By Gerry NeelyB.A. LL.B. An open listing given by the owner of property in the fall of 1982 to half a dozen agents – the introduction of the eventual purchaser by a licensee who is not one of the half dozen – a signed agreement by the owner to pay the licensee the commission –

Damages in Lieu of Commission #62

Legally Speaking

By Gerry NeelyB.A. LL.B. The advantages of a listing agreement which fully describes the basis upon which a commission is earned and the obligations of the owner toward the listing agent, in order to support a claim for commission or for damages in lieu of commission, are illustrated by the facts of the following case.

Mobile Home – Freedom of Choice to List With Any Agent #60

Legally Speaking

By Gerry NeelyB.A. LL.B. An arbitrator acting under the provisions of the Residential Tenancy Act has provided reasons for a decision involving the owner of a mobile home in a park, who had listed her home for sale with a real estate company not approved by the landlord. When the tenant had moved her home onto a

Payment of Commission #48

Legally Speaking

By Gerry NeelyB.A. LL.B. A recent judgement is of the good news/bad news type of bad joke – the good news, Mr. Agent, is that you have earned a commission, the bad news is that you can’t enforce payment of it. These circumstances arose in a case in which a vendor agreed to sell the

The Case of the Absconding Apparent Attorney or, Whose Liability #45

Legally Speaking

By Gerry NeelyB.A. LL.B. How would you decide which of two innocent parties, the vendor or the purchaser, should bear the loss which arose when the solicitor acting for the purchaser gave the real estate agent an n.s.f. cheque for the commission of $4,350.00, and then disappeared? By the agreement signed by the parties, the

Deposits #43

Legally Speaking

By Gerry NeelyB.A. LL.B. While it is not necessary to have a deposit in order to create a binding contract, having a deposit or even the promise of a deposit has proven to be beneficial to vendors where the purchasers have declined to proceed with their purchases. This can be equally as important to the

Commission Dispute Between Agent and Salesperson #34

Legally Speaking

By Gerry NeelyB.A. LL.B. A salesperson’s right to payment of a commission or of a bonus earned during his employment, but not paid before the salesperson left the agent with whom he was employed, has been examined in several cases. In the first case, after an amicable parting, the agent considered that some of the

Damages, Deposits; Separate Legal Representation for Vendors #26

Legally Speaking

By Gerry NeelyB.A. LL.B. In an Ontario case which arose because of a purchaser’s refusal to close a real estate transaction, the vendors were awarded S5,000.00 general damages for the “vexation, frustration, distress and anxiety, caused solely by the failure of the Defendants (Purchasers) to complete this transaction upon the date agreed upon.” This was

Income Tax #25

Legally Speaking

By Gerry NeelyB.A. LL.B. One of the results of the reduction in residential sales has been an increase in the number of trades of residential properties between people who can’t find a satisfactory cash buyer. For any one entitled to deduct moving expenses under Section 62 of the Income Tax Act, the question of how the

Commission #24

Legally Speaking

By Gerry NeelyB.A. LL.B. “A 1980 decision in which licensees who did not have a listing were successful in obtaining payment for services rendered by them,”. . . illustrates that even in a slumping market for real estate, there are opportunities for a licensee to be of service and to be paid for doing so.

The Real Estate Act and the End of the 100% House #23

Legally Speaking

By Gerry NeelyB.A. LL.B. Unless a recent decision is reversed on appeal or the Real Estate Act is changed, the 100% house may disappear. This describes the arrangement between an agent and salesperson where the agent receives no part of the commission earned by the salesperson, but, instead, receives a rental or other payment which defrays the

Special Circumstances for Listing Agents’ Commission #22

Legally Speaking

By Gerry NeelyB.A. LL.B. Since the subject of this column, which was requested by the Legislative Committee of BCREA, is one which raises more questions than it answers, it would be appropriate to start it by saying, “HELP WANTED – a reference to the report of a decision of a British Columbia Court which might

Duty of a Vendor to Make Himself Available on Closing Date #10

Legally Speaking

By Gerry NeelyB.A. LL.B. Can vendors who neither want to complete their sale nor pay a commission, succeed by the simple act of making themselves unavailable at the time fixed for completion, and by instructing their conveyancer to do the same. Not according to a decision of a Vancouver County Court Judge in an action