This is the provision in the OREA standard form Agreement of Purchase and Sale concerning “Notices”:
3. NOTICES: The Seller hereby appoints the Listing Brokerage as agent for the Seller for the purpose of giving and receiving notices pursuant to this Agreement. Where a Brokerage (Buyer’s Brokerage) has entered into a representation agreement with the Buyer, the Buyer hereby appoints the Buyer’s Brokerage as agent for the purpose of giving and receiving notices pursuant to this Agreement. The Brokerage shall not be appointed or authorized to be agent for either the Buyer or the Seller for the purpose of giving and receiving notices where the Brokerage represents both the Seller and the Buyer (multiple representation) or where the Buyer or the Seller is a self represented party. Any notice relating hereto or provided for herein shall be in writing. In addition to any provision contained herein and in any Schedule hereto, this offer, any counter-offer, notice of acceptance thereof or any notice to be given or received pursuant to this Agreement or any Schedule hereto (any of them, “Document”) shall be deemed given and received when delivered personally or hand delivered to the Address for Service provided in the Acknowledgement below, or where a facsimile number or email address is provided herein, when transmitted electronically to that facsimile number or email address, respectively, in which case, the signature(s) of the party (parties) shall be deemed to be original.”
Naturally, that did not cover Designated Representatives either for the Seller or the Buyer.
The major risk is that an Offer was never properly accepted, meaning that there is no contract. That’s great news if one of the parties suffers remorse, usually it would be the Buyer.
So, consider the following inclusion in Schedule “A”:
“Paragraph 3 Notices shall be deleted and the following shall be substituted therefor:
3. NOTICES: The Seller hereby appoints the Listing Brokerage or the Designated Representative as agent for the Seller for the purpose of giving and receiving notices pursuant to this Agreement. Where a Brokerage (Buyer’s Brokerage) or a Designated Representative has entered into a representation agreement with the Buyer, the Buyer hereby appoints the Buyer’s Brokerage or the Designated Representative as agent for the purpose of giving and receiving notices pursuant to this Agreement. The Brokerage and the Designated Representative shall not be appointed or authorized to be agent for either the Buyer or the Seller for the purpose of giving and receiving notices where the Brokerage or Designated Representative represent both the Seller and the Buyer (multiple representation) or where the Buyer or the Seller is a self represented party. Any notice relating hereto or provided for herein shall be in writing. In addition to any provision contained herein and in any Schedule hereto, this offer, any counter-offer, notice of acceptance thereof or any notice to be given or received pursuant to this Agreement or any Schedule hereto (any of them, “Document”) shall be deemed given and received when delivered personally or hand delivered to the Address for Service provided in the Acknowledgement below, or where a facsimile number or email address is provided herein, when transmitted electronically to that facsimile number or email address, respectively, in which case, the signature(s) of the party (parties) shall be deemed to be original.”
It is also possible to add that provision to Schedule “B”, so as to ensure that it would not pose a problem for Listing Brokerages.
Brian Madigan LL.B., Broker