TRESA Compliance, In Practice

The rules changed on 1 December 2023 and a good deal of ordinary brokerage practice changed with them. Most compliance problems now come from habits formed under the old framework.

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O. Reg. 365/22Designated RepresentationOpen OffersInformation Guide

Code of Ethics | Representation | Disclosure | Office Policy

Where brokerages are actually exposed.

Helping an unrepresented buyer, which used to be good service, can now be a breach.

Designated representation adopted on paper but not in practice gives you the risk without the protection.

An offer disclosure made without a documented seller direction is hard to defend later.

The Information Guide has to be provided before services begin, not at the offer stage.

Quick Answer

What does TRESA require that REBBA did not?

The Trust in Real Estate Services Act, 2002 came fully into force on 1 December 2023 with its second phase of regulations, and the Code of Ethics now sits in O. Reg. 365/22. Four changes matter most in daily practice. The customer category is abolished, so every person is now either a client under a written representation agreement or a self-represented party. Assistance to a self-represented party is restricted to what is incidental to advancing the interests of the registrant’s own client on the other side. Designated representation becomes available, allowing a brokerage to act for both sides through individually designated registrants rather than entering multiple representation. And the open offer process allows a seller to direct that the contents of competing offers be disclosed. Each of these changes what a registrant may safely say and do, and each of them requires a change to the paperwork rather than merely to the intention.

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THE CATEGORY THAT DISAPPEARED

There Is No Longer Any Such Thing as a Customer

Under the previous framework a brokerage could serve someone as a customer. That gave the registrant a limited relationship with limited duties, and it was widely used for the party on the other side of a deal who did not want their own representation. It is gone. Since 1 December 2023 a person dealing with a brokerage is a client, with a written representation agreement, or a self-represented party, with no agreement at all.

The important part is what a registrant may do for a self-represented party. Assistance is permitted only where the registrant represents the party opposite, and only where the help is incidental to the services being provided to that client and advances that client’s best interests. It is not a general permission to be helpful.

In practice this catches experienced registrants more often than new ones, because the instinct to assist is well established and used to be entirely proper. Explaining a clause, suggesting a change to a closing date, walking an unrepresented buyer through a form: each of those may now be outside what is permitted, depending on whose interests it actually advances.

DESIGNATED REPRESENTATION

Adopting It Properly, Not Just Declaring It

Designated representation lets a brokerage hold clients on both sides of a transaction without that being multiple representation, because representation runs through the designated individual registrants rather than through the brokerage as a whole. It is optional, and adopting it is a decision with consequences beyond the agreement wording.

The agreements have to reflect it, the office policy manual has to reflect it, and, most importantly, the actual handling of confidential information has to reflect it. If two designated registrants sit in the same open office, share a transaction management system with no access controls, and discuss files freely, the designation is a label rather than a barrier.

That gap is where the risk sits. A brokerage that has declared designated representation has told its clients that their confidential information is protected in a particular way. If the internal reality does not match, the brokerage has created an expectation it is not meeting, which is a worse position than never having adopted the model at all.

THE OPEN OFFER PROCESS

The Seller Decides, and the Direction Should Be in Writing

A seller may direct that the contents of competing offers be disclosed to other buyers who have submitted offers. The seller chooses the scope: price alone, or deposit, conditions and closing date as well. The seller may also change that direction as further offers come in, disclosing for some and not for others.

What is never disclosed is personal information about the buyers, and disclosure runs only to those who have actually registered and submitted an offer, together with their representatives.

The compliance point is simple and frequently missed. This is the seller’s decision, not the brokerage’s, and the safe practice is a written direction that records what may be disclosed and when it changed. A verbal instruction that nobody wrote down is difficult to rely on if a buyer later complains that the process was run unfairly, and that complaint is easy to make and awkward to answer.

BEFORE ANYTHING ELSE

The Information Guide and When It Has To Be Given

TRESA requires that a person be given the prescribed information guide before a registrant provides services to them. The word before is doing real work in that sentence. Providing it later, or attaching it to an offer, is not compliance, and it is the kind of failure that is trivially easy for an investigator to establish because it is entirely documentary.

The same applies to representation agreements. A representation relationship requires a written agreement, and services provided ahead of that agreement sit in an uncomfortable place.

Neither of these is conceptually difficult. They fail because of workflow rather than understanding: the guide sits in a folder nobody opens, or the agreement is signed at the same appointment as the offer because that is when everyone is in the room. Fixing them is a matter of changing the sequence of the office’s standard process, which is why compliance work here usually starts with the process rather than the paperwork.

Common Questions

Frequently Asked Questions

When did TRESA come into force?

The second phase of regulations came into force on 1 December 2023, at which point the framework that had operated under the Real Estate and Business Brokers Act, 2002 was replaced. The Code of Ethics is now in O. Reg. 365/22.

Can I still help a buyer who has no agent?

Only within limits. You may assist a self-represented party where you represent the party opposite and the assistance is incidental to the services you are providing to your own client and advances that client’s interests. General assistance offered because it seems helpful is no longer safe, even though it used to be ordinary practice.

Does designated representation remove the need for disclosure?

It changes what has to be disclosed rather than removing disclosure. The point of the model is that a brokerage holding clients on both sides is not thereby in multiple representation. But clients still have to understand the arrangement they are in, and the brokerage still has to keep the confidential information of each designated relationship genuinely separate.

Who decides whether competing offers are disclosed?

The seller. A brokerage should not decide it and should not infer it. The seller directs what may be released and can change that direction as further offers arrive. Recording the direction in writing is the practical protection, because the alternative is arguing afterwards about what was said.

When must the information guide be given?

Before services are provided to the person. Providing it afterwards does not cure the failure, and because the requirement is documentary it is one of the easiest breaches for an investigator to establish.

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Call Message

TRESA Compliance, In Practice

What does TRESA require that REBBA did not?

Speak to a Regulatory Defence Lawyer

There Is No Longer Any Such Thing as a Customer

Adopting It Properly, Not Just Declaring It

The Seller Decides, and the Direction Should Be in Writing

The Information Guide and When It Has To Be Given

Frequently Asked Questions

Review Your TRESA Compliance

Lexaltico LLP

Ready to Talk? Start My Enquiry

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