December 1, 2023
Today, December 1, 2023, is a landmark in the real estate world; the Trust in Real Estate Services Act (TRESA) has come into effect. This act impacts all relationships between REALTORS® and buyers, sellers, and investors, among other changes. These shifts significantly increase your ability to trust real estate agents. Some changes are complicated, and we are here to break them down. Ken and I have been in the real estate industry for a combined total of over 65 years. We’re very conscious of our responsibility to share our insights on the changes happening in the industry because they impact all buyers, sellers, and investors.
Why the Changes?
We have witnessed several shifts in the industry over the decades, and the last significant shift was in 1994, which brought changes to buyer representation and multiple representation. TRESA brings more than a few alterations; we are now looking at a significant shift in the approach to real estate transactions. It’s fascinating because the change is so necessary, especially considering the complexity and confusion that sometimes surrounds real estate dealings.
Until now, the representation details have been somewhat ambiguous, and practices could vary between REALTORS® and buyers or sellers. TRESA is designed to bring more transparency and understanding to the process, making it easier for buyers and sellers to navigate the real estate landscape together and avoid the chaos of misunderstandings.
Understanding the Changes
So, what exactly is TRESA changing? Well, one of the most substantial alterations is the introduction of designated agency. Designated agency allows buyers and sellers to choose specific representatives within a brokerage. It departs from the previous common law agency, where the entire brokerage represented the client. Although common law agency will still exist, it is not the only option available.
What is a Designated Agency?
Imagine you’re at a buffet, and instead of the entire restaurant staff serving your table, you get to choose a personal server. That’s essentially what designated agency does in the real estate world. It’s all about choice and personalization. If you’re selling your home, you can designate an agent or team of agents within the brokerage to represent your interests exclusively. As a buyer, you can do the same, ensuring that your needs, best interests, and concerns are well-addressed throughout the home-buying process.
The Murky Waters of Designated Agency
Here is a practical example of a designated agency in action. In the past, if you showed up to an open house, you might chat with the REALTOR® to find out more about the home. Often, I would hear of situations like this, and the potential buyers would assume the friendly agent is helping them receive sound advice and guidance when, really, the REALTOR® is in a signed contract relationship with the sellers and is providing information based on the sellers best interests, not the prospective buyers.
In the realm of listing agents, allegiance lies with the seller until a potential shift in the relationship occurs. In the past, for some, this was once the agent and buyer entered a contract together. Or, for some, it was at some point before this. It was up to one’s interpretation of the standard in many ways. This is a simple example of one of many ways the waters were murky.
New Changes to Designated Agency
It’s crucial to know who your agent is working for – the buyer or the seller. This is your greatest financial investment, after all! I found this quite concerning as I want people to receive the best care possible, and it hurt my heart to know some people trusted they were getting advice geared towards them when that may not have been the case.
Under TRESA, agents cannot offer information or advice without exclusive representation. Client service is now only for people legally signed with the agent. If you show up at an open house, you’ll know the agent exclusively works for the seller. In the past, the agent could offer to show you other houses down the road that might be more of a match for your criteria. Now, an agent can only do that if you are being represented in writing by the agent. The only exception is if the agent showed you more of their brokerage’s listings.
Self-Representation
Under TRESA, buyers must primarily ask themselves, “Do I want to go with a REALTOR®?” Because if they don’t, they are automatically considered self-represented by law.
Self-representation seems straightforward. And it is anything but simple in the way it plays out. The stark contrast between self-representation and being represented by a professional becomes apparent when we consider a courtroom scenario.
Let’s say you’re being sued. Or you were in the wrong place at the wrong time and were accused of something. If you don’t go with a lawyer and self-represent, you’re not getting legal advice from professionals. You’re talking to the judge directly. The judge is going to assume that you know the process like a professional. This includes everything from the culture of being in a courtroom to the etiquette to the things to call people and when to be quiet. It also includes when to ask to approach, not to mention that you have the skill to go against another legal professional.
Whether you know all these things or not, the judge assumes this because you’re self-represented. In a court of law, you’re going up against another lawyer who’s been trained for years and years, who knows the laws, knows the precedent in past court cases, and has conducted thorough research. Would you really want to go up against someone like this on your own?
Just like in court, your choice for self-representation and all actions you do as a self-represented individual will be held against you if you make a mistake. If you are confused or unclear and mess up in real estate documents, the legal repercussions can be disastrous. Just like choosing a lawyer in court, when you and a REALTOR® choose to be in a contractual representation agreement, you are on even ground in the real estate transaction. And you have an agent who is legally bound to work in your best interests or face legal repercussions, fines or dire negative implications on their career.
Confidentiality Changes
Navigating the intricate web of real estate regulations involves not only understanding the rules but also recognizing the variations in how they are implemented. Take confidentiality, for instance—a cornerstone in real estate ethics. The concept is crystal clear: as a representative, maintaining confidentiality is paramount. Yet, the real-world execution can be a different story.
How many times have you attended an open house and, out of curiosity, asked the listing about the sellers’ motivations? The temptation to spill the details might be strong, and you may even get a compelling story in response. However, these indiscretions, like revealing why sellers are moving, erode the trust that should be inherent in such transactions and undermine the REALTOR® seller relationship. With TRESA, REALTORS® must have written permission to disclose any private information. The shift towards a more common-sense approach under the Trust in Real Estate Services Act phase 2 aims to enhance transparency and understanding in the real estate landscape.
TRESA outlines several other critical changes, including multiple representation and open bidding. If you want to find out more or are looking for more clarity on what we’ve covered, reach out to us at together@dekkerteam.com or 613-860-4663. We’ll send you the 12-page document outlining the disclosures required under TRESA. We love helping clarify your options so that your wisdom will flow.
