Use of Counter Offers in Ontario
The use of Counter Offers in Ontario real estate practice has grown significantly since negotiating by e-mail is still not permitted.
The expectation is that the Province will pass the appropriate enabling legislation in 2013. But who knows exactly when!
In the meantime, the Counter Offer can be helpful.
Remember that in the process of offers and counter offers, it is only the agent-to-agent communication which must be transmitted by fax.
Agent-to-client can be handled by e-mail.
Let’s look at an example. Bob is with XYZ Realty and represents Brenda. William is with ABC Realty and had Joyce’s house listed.
Brenda wants to put in an offer, so she meets with Bob personally and signs the papers. The offer is transmitted by fax to William’s office. He meets with Joyce reviews the offer and makes some changes. William then faxes the seller’s offer to Bob’s office.
Bob makes some changes and the offer is faxed back to William.
You will appreciate the problem here. At this point, the document has been faxed on three (3) occasions. The quality of the print is now at issue. The document is not that legible.
Both Bob and William have met personally with their respective clients concerning these negotiations.
At this point, the document is in William’s hands. Yes, he does have a somewhat blurry copy, but it is still legible and readable.
The preference might be to prepare a slightly revised brand new document, however, the original sits on Bob’s computer not his own.
So, William has one more option. He can resort to use of the Counter Offer form. This is a one page document.
He can email it to Joyce and have her sign it, scan it, and return it by e-mail. There’s no deterioration in the quality of the transmission. While a witness is not actually required in law, William can “authenticate” Joyce’s signature and forward it to Bob by fax.
Bob can simply arrange to have it signed and fax it back. That was two times through the machine. If we were still working with the first offer document we would now be at five (5) transmissions which would make this document completely illegible. And, that probably means “meaningless”, because a Court is not going to permit the introduction into evidence at trial of a standard form document in readable format. The Court will look at the actual document.
This Counter Offer form has some advantages in lengthy negotiations. It adds a level of convenience and at the same time protection, since the document is readable and legible.
When it just comes down to one issue, that is, price, the Counter Offer is the ideal document for use.
Just imagine the number of times the document would have to be faxed if both clients only had fax machines and no e-mail.
The combination of e-mail and the Counter Offer permit negotiations to take place in Ontario in a more sophisticated way. Actually, that would be just short of most of the jurisdictions in the United States which permit real estate transactions to be negotiated and concluded over the internet.
Brian Madigan LL.B., Broker is a Manager at RE/MAX West Realty Inc., Brokerage 416-745-2300.