Let’s set out an overlay of OREA’s terminology over that of RECO:
1) 1) Existence
2) 2) Evidence
3) 3) Made (OVERLOOKED)
4) 4) Communication
5) 5) Submitted (NEW)
6) 6) Received, (DIFFERENT)
7) 7) Presented.
So, the result of all of this is CONFUSION. The view that OREA has taken is one which is consistent with contract law, that’s the OREA viewpoint “in my opinion”.
In drafting Form 801, the requirement is “made” by the legislation, but that requirement is ignored by OREA. Instead, OREA provides a substitute word namely “submitted”. However, when we are talking about contract law, “submitted” has a totally different meaning. It refers to an Offer having been at least, delivered into the possession of the Listing agent, for subsequent presentation. This is an Offer which the Listing agent will have in its possession. It could have arrived by fax, email, text, courier or personal delivery. Possession of the document will have left the hands of the Buyer’s agent and will be in the hands of the Listing agent.
The Offer will later be presented to the Seller.
In cases where the Buyer’s agent personally attends upon the Seller for presentation, then we will have the submitted Offer, coincident in time with the time of Presentation.
Again, that is not something of concern to the Regulator.
The time of submission is not relevant. That’s too late. All the phantom Offer damage would be done by then.
We have to go back, effectively to look at some of the steps. OREA drafted Form 801, in part to serve as evidence of an Offer. Fair enough, that’s close to the legislation, which deals with the existence of an Offer.
It is the “communication” of the Offer which is the key point for RECO. How did the Listing Brokerage “hear about” the existence of the Offer in the first place? That needs to be documented in writing: fax, email, text, courier, personal delivery.
Once we know that, we have RECEIPT, and that will be the time which is recorded. Remember, of course, that this was the information which was being “bandied about” to create enthusiasm about a bidding war.
While missing that point in its entirety, OREA Form 801 documents the submission, and requires evidence of whether the submission was “by fax by email, or in person”. This information is not required at all. This is the actual transfer of possession of the Offer. This does not in essence deal with the Offer being real or imaginary. We already know that it’s real. The Buyer’s representative “said so, in writing”. And, we can believe that because that person is a registrant under REBBA, 2002.
Form 801 goes on to set out the presentation time and document whether that took place by “fax, email or in person”. This is not required by the legislation. This simply reinforces the point that RECO and OREA are talking two different languages about the same topic.
The presentation method and time are not relevant for the purposes of phantom Offers and generating false enthusiasm for a bidding war. Yet, OREA documents it. The only realistic possibility, is that OREA is dealing simply with contract law and has failed to appreciate the nuances of the legislation and the requirements of the Regulator.
Brian Madigan LL.B., Broker
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