COVID-19 REAL ESTATE UPDATE - MARCH 30

REBBA PHASE 2

The Minister of Consumer and Business Service has filed Phase 2 regulations to support the implementation of the Trust in Real Estate Services Act, 2020 (TRESA, 2020). TRESA, 2020 amends the Real Estate and Business Brokers Act, 2002 (REBBA), the legislation that governs real estate brokerages, brokers and salespersons (registrants) in Ontario, setting rules for how they conduct business and interact with the public.

The following key changes will take effect on April 1, 2023:

• The Real Estate and Business Brokers Act, 2002 will be renamed the Trust in Real Estate Services Act, 2002 (TRESA, 2002). 

Code of Ethics Regulation (Code) 

• A new Code of Ethics regulation will replace the current Code of Ethics regulation, which articulates registrant requirements in relation to matters such as integrity, quality of service and conflicts of interest.  
• The technical and procedural requirements (other than the provisions related to the procedures of the discipline committee and appeals committee) from the current Code will move to the General regulation and the Educational Requirements, Insurance, Records and Other Matters regulation under REBBA.

Offer Process

• A registrant will be permitted to conduct an open offer process and disclose the details of competing offers at the seller’s direction. This will give the public more choice in the real estate trade process. 
• Registrants will be prohibited from disclosing any personal information or identifying information through this process.

Information and Disclosure Obligations

The amendments in TRESA, 2020 and regulation changes will:

• Improve the information       registrants must provide to buyers, sellers and others in relation to       providing real estate services.  
  • This is intended to        help the public understand their choices for engaging or interacting with a registrant, as well as the different obligations registrants have under the different forms of engagement or interaction.
• Require the Registrar       appointed by the Real Estate Council of Ontario (RECO) to publish an       information guide. Registrants will be required to provide the guide and explain its contents to a person before providing them with services or       assistance.

· Furthermore, to enhance consumer protection, the following general requirements will apply to all disclosures under the Act and regulations made by registrants to the public: 

• A disclosure, consent       or acknowledgement must be written in plain language that is clear and       concise and it must be presented in a manner that brings to the person’s       attention the information that must be conveyed;    
• A disclosure must be       identified by the prominent placement of the word “disclosure”. 

· In addition, other specific requirements will be prescribed for certain mandatory disclosures (e.g., in relation to multiple representation; property interest in real estate; material facts about real estate). 

Real Estate Council of Ontario (RECO) Powers and Tools

· The amendments in TRESA, 2020 along with the regulation changes will  help RECO operate more efficiently and focus its compliance and enforcement efforts where they are most needed and most effective, by: 

• Updating the rules       about the information RECO’s Registrar must make publicly available; 
• Specifying the purposes       for which the Registrar can require registrants to provide transactional       data and related information to the Registrar; and, 
• Providing the Registrar       with additional authority over administrative matters related to certain       advertising, record-keeping and notice requirements.

Discipline Committee Composition and Procedures

· A new regulation dealing with the rules and procedures of the discipline committee will be in place, incorporating the relevant provisions currently found in the Code and General regulation.  In addition, the new regulation includes certain updated provisions in relation to committee composition, appointments and processes.

The regulations are available on the Ontario e-Laws website.

The ministry’s proposal to add a condition to the existing exemption for auctioneers generated a significant amount of feedback during the consultation process.  As a result, the ministry will continue to consider this issue in Phase 3 of regulation development.

Preliminary work on Phase 3 of regulation development is expected to begin later this year and will also include proposals for the development of an administrative penalties regime and consideration of a specialty certification program.

If you have any questions, please contact the ministry at REBBA@ontario.ca 

On March 30, 2022, Hon. Steve Clark, Minister of Municipal Affairs and Housing, introduced Bill 109, More Homes for Everyone Act, 2022.   

Below are a number of regulatory changes that the government is proposing.  Note that FOLA did not send in a Submission.

Proposed Development Charges Act changes (the proposed More Homes for Everyone Act, 2022)

Comments Closed 

Proposed Planning Act changes (the proposed More Homes for Everyone Act, 2022)

Comments Closed 

Proposed amendments to O. Reg. 509/20 under the Planning Act in support of the proposed More Homes for Everyone Act, 2022

Comments Closed

Proposed amendments to O. Reg. 82/98 under the Development Charges Act, 1997 in support of the proposed More Homes for Everyone Act, 2022

Comments Closed

Also proposed are a couple of regulatory changes from the Ministry of Government & Consumer Services:

Amendments to the New Home Construction Licensing Act, 2017 to protect purchasers of new homes

The Ministry of Government and Consumer Services is proposing amendments to the New Home Construction Licensing Act, 2017 (Licensing Act) to help address the issue of inappropriate or unethical behaviour by vendors. The proposed amendments would also enhance the Home Construction Regulatory Authority's (HCRA's) enforcement powers, among other things.

Comments Closed

Amendments to the Ontario New Home Warranties Plan Act

The Ministry of Government and Consumer Services is proposing amendments to the Ontario New Home Warranties Plan Act (Warranties Act).

Comments Closed 

Dye & Durham (Unity) Fee Increases 2022

FOLA LETTER TO DYE & DURHAM CEO - Feb 2022

DoProcess Fee Hikes - 2021

FOLA Letter to DoProcess - Jan 18, 2021

Home buyers face higher costs after Dye & Durham hikes real estate software prices 400%, lawyers warn - Globe & Mail Jan 27, 2021

DoProcess's Response

In August 2021, the Ministry of Municipal Affairs and Housing in Ontario posted proposed complementary and consequential changes to Minister's regulations under the Planning Act on consequential and complementary changes that need to be made to the existing Consent Applications regulation. 

You can find the posting here.

VIEW FOLA's SUBMISSION HERE

PRINCE EDWARD ISLAND PLANNING ACT AMENDMENTS

In November 2021, FOLA was made aware of proposed changes to the Planning Act in PEI.

FOLA responded with a submission re: Bill 42: An Act to Amend the Prince Edward Island Lands Protection Act.

FOLA contends that the proposed legislation in PEI could create liability for lawyers in Ontario who may be asked to commission documents for the purchase of lands in PEI.

VIEW FOLA'S SUBMISSION HERE.

Click here for FOLA's most recent COVID-19 update.

For past COVID-19 updates, click here 

List of banks allowing lawyers to make the payment of mortgage discharges by wire 

LSO guidance on wire transfers and, in particular, who is responsible for the wire transfer fees (Dec 17)

SCJ Notice re: Appeals from the Landlord and Tenant Board in the Divisional Court (Effective August 24, 2020)

SCJ Notice re: filing direction for Commercial List and Estates List matters  (Aug 17)  *applies to Toronto only. The processes in other regions are unchanged  

Direct link to Lawyers Delayed Closing Escrow Agreement Working Group site for the Lawyers Delayed Closing Escrow Agreement  

HERE ARE SOME TIPS

CLOSING REAL ESTATE DEALS DURING A PANDEMIC 

BASIC APPROACH FOR REMOTE SIGNING

On April 23, 2020, the Ontario Government amended an order under s. 7.0.2(4), of the Emergency Management and Civil Protection Act permitting wills and POAs witnessed virtually (through audio – visual communication) to be signed in counterpart from the date of the order.  It is intended that this order will remain in place until the end of the declared state of emergency.

This amendment simply revokes Schedule 1 of O. Reg 129/20 and replace it with a new Schedule 1 that includes both the virtual witnessing provisions (unchanged since April 7 and in effect for the duration of the state of emergency) and the new counterpart signature provisions, effective from the date of the order onward for the duration of the state of emergency.

You can view the order here and read the legislation here.

On April 7, 2020, the Lieutenant Governor in Council made an order under s. 7.0.2(4), of the Emergency Management and Civil Protection Act permitting virtual witnessing for wills and powers of attorney provided that at least one person who is providing the service as a witness is a licensee pursuant to the Law Society Act. 

The Order is not retroactive and will be in place for the duration of the declaration of emergency. 

The Order in Council can be found here and on e-Laws, as a regulation under the Emergency Management and Civil Protection Act.