Buyer and Offer Transparency

The new TRESA legislation permits Offer contents to be shared in whole or in part.

Assuming that the Buyer is not pleased with this disclosure of their Offer contents, then they might consider including the OREA Clause which has been drafted up as follows:

“Notwithstanding anything to the contrary contained in this Agreement of Purchase and Sale or any Schedule thereto and notwithstanding that the Seller has the right pursuant to the Trust in Real Estate Services Act, 2002 to disclose the details and content of this offer, if the Seller, Seller’s Brokerage, or any other person discloses the whole or any part of the details or content of this offer to any person prior to acceptance, then upon written notice to the Seller prior to acceptance this offer shall forthwith be revoked and become null and void and any deposit shall be returned to the Buyer in full without deduction.”

So, specifically, what did that actually say in terms of the way out:

  • then upon written notice
  • to the Seller prior to acceptance
  • this offer shall forthwith be revoked and become null and void…

This situation simply provides the Buyer with a choice to continue to participate or not.

How: by written notice

When: prior to acceptance

What: the Offer is revoked

Now that we have this clause, we will actually require written notice. That means Form 108 which is called “Notice of Revocation”.

It contains the following wording:

“the Buyer hereby notifies the Seller that the offer is forthwith revoked and null and void.”

Certainly, if the Buyer chooses to use the OREA Clause, then this OREA Notice of Revocation will also be required.

If you were the Seller in this situation, there’s no real stress. Once you have shared everything, there is the risk that this one Buyer will elect not to proceed. However, you have for example until 10:00 pm to accept. Offers were shared at 5:00 pm.

Until you actually have received this specific Notice from the Buyer, their Offer is still in play.

The Buyer decides not to proceed with the Offer and they draw up the papers and send them over by way of Form 108 at 7:00 pm. The Seller still had from 5:00 pm to 7:00 pm to accept. At 7:01 pm, it’s now too late.

Effectively, if you wanted better control as the Buyer, you should have proceeded with the “automatic revocation” method, rather than this deferred consideration method.

Brian Madigan LL.B., Broker

Comments 3

  1. I feel this clause is not valid until the offer is accepted. It’s only a clause in an unaccepted offer. Just like any other clause.

    1. The irrevocable is in force because the offer is under seal, and further this clause would also be in force for the same reason

    2. Post

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