My New Office Hours, Irrevocability Clauses, and the “Earliest Practical Opportunity”

As a lot of you are already aware, my wife and I welcomed our first daughter, Ellie, into the world on April 27, 2022.

As a direct result, I have adjusted my availability. Effective immediately, I am available to serve buyers and sellers as follows:

Sunday · OFF
Monday · OFF
Tuesday · 13:00 – 20:00
Wednesday · 13:00 – 20:00
Thursday · 13:00 – 20:00
Friday · 13:00 – 20:00
Saturday · 09:00 – 13:00

Outside of these hours, you are totally welcome to send me a text message, an email, or leave me a voicemail, and I will respond to you when I am available next.

But so long as we’re on the topic of office hours and availability:

I have a few thoughts I’d like to share on the irrevocability clause contained in the Agreement of Purchase and Sale (Form 100), the definition of presenting offers at the earliest practical opportunity, and how both of these items impact work-life balance as a realtor in Ontario.

Consider, for a moment, all the different professionals who are involved in real estate transactions. There are lawyers, insurance agents, accountants, and bankers, just to name a few. These professionals all share one thing in common: all of them (for the most part) keep regular office hours.

We are used to calling our lawyer at his office (on a landline, no less), leaving a message with his receptionist, and then awaiting a call back either later that day or the next.

But when it comes to realtors, there seems to be some prevailing expectation that we should be available on our cell phones 24/7, even when most other professionals are not held to that same standard.

A big part of where this expectation originates, I believe, has to do with the legislation surrounding how offers to purchase real estate are conveyed in Ontario. According to the Ontario Real Estate Association (OREA) and the Real Estate Business and Brokers Act (REBBA 2002), realtors in this province are required to present offers to their seller-clients at the earliest practical opportunity.

Why?

Well, there are many reasons for this requirement, but chief among them is the irrevocability clause contained in the Agreement of Purchase and Sale (Form 100).

It goes like this:

This offer shall be irrevocable by (Seller/Buyer) until (Time) on the (Date) day of (Month), after which time, if not accepted, this offer shall be null and void and the deposit shall be returned to the Buyer in full without interest.

In other words, accept our offer by such-and-such time, or this deal is dead in the water. Talk about a low-key, no-pressure approach, huh?

And look, I get that inclusion of this clause is necessary. After all, buyers cannot be expected to wait in limbo indefinitely for a response.

But if an offer expires in a matter of hours, how does the phrase “earliest practical opportunity” apply? The word practical is a touch ambiguous in this instance. Just because an offer was written with a three-hour irrevocable clause does not mean that it is practical for me, as a realtor, to present it to my client in the next three hours.

For that matter, it may not be practical for my client to look at it in the next three hours, either, nor to make a decision on it.

Here is a hypothetical scenario:

Let’s suppose, for a moment, that I am having dinner with my extended family one fine Sunday evening. I’ve already had two beers and four tall glasses of wine. Right before dessert is served, I get notified on my phone that an offer has come in that will essentially “expire” in three hours.

• Would it be practical for me to drop what I am doing and kick everybody out of my house so I can go review that offer with my clients?
• Unless it is an outstanding offer, how do you suppose my clients will feel having to make a decision in just a matter of hours?
• Even if my clients are the type to make a quick decision, is it ever a good idea to sell your house through an agent who is less than sober?

I think it’s fair to say that most reasonable folks would say no, it would not be practical to convey an offer right then.

But in practice, some agents use the irrevocability clause as a high-pressure sales tactic. Here are a couple of examples:

1. Just a couple of weeks ago, an agent sent me an offer at 7 pm on a Sunday night with a four-hour irrevocable…as in, if this offer is not accepted by 11 pm tonight, it becomes null and void. I advised the other agent that my seller is at church on Sunday evenings and would not be available to review this offer until sometime after 9 pm (if at all). The agent replied, “Your client brings her cell phone to church with her, doesn’t she? Just call her.”
2. A couple of years ago, I had an agent send me an offer on Thanksgiving around noon with an irrevocable set for 5 pm. I tried explaining to that agent that I had family commitments that day, as did my clients, and asked if she would be able to resubmit the offer with a 24-hour irrevocable, just as we had requested in the listing. She said no. She also said to me, and I’m paraphrasing here, “If I don’t get to take Thanksgiving off, then neither do you.”

These are only two examples. I could list many more.

And look, if an offer expires before I am able to present it, it is certainly not the end of the world. My seller-client can “counter” the same offer back to the buyer the following day with a new irrevocable date and time, but all of this still begs the question: how do agents balance time off with short irrevocable windows?

Well, here is how I am going to do it:

Going forward, all of my seller-clients will be signing a Seller’s Direction (Form 244) before their listing hits the market. This form gives me written permission to present offers to them during my regular working hours (noted above) regardless of what the irrevocable clause on an offer says.

I brought this very form to all of my existing seller-clients this week, and guess what? Every single one of my clients, without exception, was more than happy to sign it. It seemed totally reasonable to them that I would not be available to serve them 24/7.

• Might this decision piss off other agents who make a habit of submitting offers with short irrevocables? Sure. But I don’t work for those other agents. I work for my clients.
• And could restricting my availability cost me business over time? Sure. There might be sellers and buyers out there who would prefer an agent with around-the-clock availability.

And that’s all right with me.

As I’m often fond of reminding people, there are more than 1,000 active realtors in Niagara. If my approach to business does not suit you, you are free to work with someone else.

But just remember that when you hire that eager-beaver agent (the one who responds to your calls and texts 24/7), he or she might show up at your door at 7 pm one Sunday night, after chugging two beers and four glasses of wine, asking you to accept an offer before it expires at 11 pm.