A Federal Court judge on Sept. 25 allowed a class-action lawsuit alleging home sellers in the Toronto area have been forced to pay artificially inflated commissions for years. The lawsuit alleges major brokers and real estate organizations in Toronto implemented rules that essentially stifled competition for buyer brokerage services, leading to higher prices. But what exactly is buyer brokerage and what is its role in the potentially landmark lawsuit? The Financial Post’s Shantaé Campbell explains.
500 Richmond St. W., Ph12, Toronto
Asking price: $1,495,000 (June, 2023)
Selling price: $1,475,000 (July, 2023)
Taxes: $5,283 (2023)
Days on the market: 22
Listing agent: Christopher Bibby, Re/Max Hallmark Bibby Group Realty
June wasn’t the greatest time to list a large condo in downtown Toronto, especially as it was only a few weeks after the Bank of Canada bumped up interest rates. On the other hand, the sunny weather played to this two-storey penthouse’s greatest asset – its 820-square-foot rooftop terrace.
“The main selling feature of this suite was the terrace [because] it was the largest terrace in the complex, and the owner spent quite a bit of time preparing the garden space,” said agent Christopher Bibby. “In terms of presentation, summer months were ideal.”
“But after that first round of interest rate hikes in early June, a little of the momentum was taken out of the market.”
It didn’t take long for one buyer, who already lives in the mid-rise, to make a determined bid for the 1,579-square-foot space.
“It’s unique because it’s the largest unit in the building, and the average penthouse that comes up is about 1,100 square feet,” said Mr. Bibby.
“The buyer was actually someone in the building, so they knew how rare and uncommon it is to have this terrace and interior space, and the fact this owner had done a renovation with an updated kitchen and bathrooms also held value.”
What they got
This over 20-year-old penthouse has south-facing windows along the living and dining area, and primary bedroom above.
The kitchen has stainless steel appliances and there is hardwood flooring throughout, including the den upstairs.
A storage locker and parking complete the package. Monthly fees are $737.
The agent’s take
“Down the street, the Ace Hotel opened up,” said Mr. Bibby. “You can literally see it from the unit, and the restaurant on the rooftop terrace has become a big draw for the area.”
“The Waterworks building across the street also has a food hall that just opened up.”
Hong Kong shares drop 3%, dragged down by real estate and energy
Hong Kong’s Hang Seng Index dropped more than 3% Tuesday, dragged by its real estate and energy sectors.
The benchmark index’s loss of over 500 points is a significant decline, Everbright Securities’ Kenny Ng told CNBC via e-mail.
“On one hand, this was driven by profit-taking following a 400-point rise last Friday,” the securities strategist explained. “Additionally, the US dollar index has remained relatively strong, exerting downward pressure on the Hong Kong stock market.”
The index was last trading down 3.16% after coming back from a holiday on Monday.
Ng highlighted how property stocks were among the largest decliners Tuesday, given the high-interest environment.
Hong Kong listed property stocks were firmly in the red. Country Garden Holdings plunged 7.67%, leading losses in the sector, while Longfor Group Holdings lost 4.82%. New World Development shed 6.69%, and Henderson Land Development traded 6.15% lower.
“Coupled with the relatively sluggish mainland Chinese real estate market, it is expected that this sector will continue to face downward pressure in the short term,” Ng added.
China’s property market has struggled with faltering consumer confidence, as property giants Evergrande and Country Garden were mired in debt problems.
Separately, beleaguered Chinese property giant Evergrande resumed trading in Hong Kong. Shares have been volatile since resuming trade in late August following a 17-month suspension. The stock rose 22% in early trade. The firm’s EV unit also halted trading Tuesday.
Toronto real estate class-action could affect billions of dollars in commissions
What does ‘buyer brokerage’ mean?
This transformation prompted the creation of specific legislations and regulations by provincial governments and real estate regulatory bodies in Canada, such as the Real Estate Council of Ontario (RECO), the Canadian Real Estate Association (CREA) and the Toronto Regional Real Estate Board (TRREB).
These rules and protocols serve to formalize and oversee buyer brokerage relationships by instituting a framework governing duties, responsibilities, disclosure, consent and confidentiality.
Where do commissions come in?
Nationwide, commission structures for real estate agents and brokerages typically involve a percentage-based commission derived from a home’s sale price, but the rates vary.
For example, if a home sells for $1 million with a commission of five per cent, the total commission amounts to $50,000. This sum, paid by the seller, is generally shared equally between the seller’s and buyer’s agents, each receiving $25,000. However, the precise division can fluctuate, being contingent on the agreement established between the seller and their agent.
Why are commissions split this way?
According to CREA, the organization does not mandate a specific commission split or dictate how commission should be allocated between the listing and buyers’ realtors.
Rule 220.127.116.11 in CREA’s by-laws and rules states: “The listing realtor member agrees to pay to the co-operating (i.e. buyer’s) realtor member compensation for the cooperative selling of the property. An offer of compensation of zero is not acceptable.”
In an email, RECO said commission rates are not fixed. “Commission rates are not set or approved by the Real Estate Council of Ontario, government authorities, real estate associations or real estate boards,” it said.
The splitting of commission between the buyer’s and seller’s agents is nonetheless a well-established practice in real estate designed to promote cooperation, balance and fairness within the industry. The idea is that a shared commission incentivizes buyer agents to introduce more potential buyers to the home, leading to a faster and possibly more profitable sale.
Furthermore, the commission model serves to reduce potential conflicts of interest by eliminating the buyer’s direct financial obligation to their agent, preventing undue pressure on buyers and ensuring accessibility to agent services.
Why is this a problem?
The lawsuit lodged by plaintiff Mark Sunderland against defendants TRREB, CREA and various real estate brokerages contends that an arrangement known as the ‘buyer brokerage commission rule’ has been in effect since at least March 2010.
Sunderland’s lawsuit posits that this arrangement has impeded market competition, compelling sellers to incur costs they would not otherwise bear in the absence of such an agreement. Furthermore, it contends that this setup precludes the negotiation of price and quality of the service.
Barwick says that even without formal policies mandating uniform rates, brokers, reliant on peer co-operation to draw buyers to properties, can help uphold a standard commission rate locally, especially for buyers’ brokers.
Michael G. Osborne, an attorney who specializes in antitrust and competition law at Cozen O’Connor in Toronto, says that from a competition point of view, there is a potential issue pertaining to the mechanism wherein brokerages must become members of CREA and TRREB to operate. Essentially, though Broker A and Broker B have no direct written agreement between them, by aligning with an association’s rules they can be seen by the Competition Bureau to be operating under an indirect “hub and spoke” agreement.
How much is at stake in the lawsuit?
Kalloghlian Myers LLP is seeking compensation for anyone who has sold a home since 2010, though they have not yet put an overall dollar value on what they are seeking.
If every transaction covered by TRREB is affected, the sums involved could be substantial.
According to annual sales and average price figures on TRREB’s website, more than $880 billion in residential real estate changed hands between 2010 and 2022. Five per cent commission on those sales would amount to $44 billion, with as much as half going to buyer brokerages.
Can home sellers participate in the lawsuit?
In a class-action lawsuit, individuals who are similarly affected are generally automatically included, meaning there’s usually no need to actively “get in on” the lawsuit. If the ruling is in favour of the class, affected individuals will be notified about their entitlements. The duration of such lawsuits can vary widely, depending on the complexities involved and the legal pathways taken.
Should compensation be awarded, the distribution could take several years.
Katy Perry real estate battle inspires a bill to protect elders from financial abuse
While Katy Perry prepares to take the stand in court, a bill with her name might be going to DC.
The “Fireworks” songstress and her partner Orlando Bloom are currently tied up in a legal battle with 84-year-old Carl Westcott, the founder of 1-800-Flowers, who claims he was on painkillers when he agreed to sell the couple his Santa Barbara mansion. Perry and Bloom are not named in Westcott’s filing, which is against the couple’s business manager, Bernie Gudvi.
As the trial rages on, members of the Wescott family are throwing their support behind a newly launched campaign for the Protecting Elder Realty for Retirement Years (PERRY) Act. “The Katy PERRY Act addresses the risks of elder financial abuse, especially as it relates to property and real estate sales and transfers,” a website for the act explains.
Representatives for Perry did not immediately respond to EW’s request for comment.
Jason Kempin/Getty Images Katy Perry
In an op-ed for The Federalist, Carl Wescott’s son, Chart Wescott, called upon California and other state legislators to pass the act, which establishes a 72-hour grace period during real estate sales and transfers of personal residences that allows either party to rescind the agreement without penalty, if one party is over the age of 75.
The website also lists the 38 state and local politicians who are backing the act.
Per PEOPLE, Perry and Bloom originally purchased the 9,285-square-foot home from Wescott in July 2020 for $15 million. Days after the deal was finalized, Wescott claimed that he had been recovering from spinal surgery at the time of the agreement.
During opening statements last Wednesday, Westcott’s attorney Andrew Thomas said that his client, who was diagnosed with the genetic brain disorder Huntington’s Disease in 2015, had been showing signs of “delusion” and “intrusive thoughts” after taking the painkillers and was still recovering from “post-operative delirium.”
In a countersuit, Perry is seeking more than $5 million in damages due to loss of potential rental income and for the cost of maintaining other properties that she and Bloom rent. She is expected to remotely testify this week in the non-jury trial which began last Wednesday.
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