Upon the assumption that you are a Buyer with Buyer’s remorse and you need a couple of days to figure things out, then you will certainly have to avoid doing anything that could be construed as affirming a contract.
So, if you act like there’s a contract in place, this could come back to haunt you.
This is all based upon the premise that there’s actually n contract because Form 100 was used, one or both agents were Designated Representatives, and the transaction was completed “electronically”.
Deposit: Pay Herewith
Don’t pay the deposit later as in “upon acceptance”. Throw the deposit in upfront, so that it’s there.
Here, we are assuming that there is no contract at all. So, if matters do not proceed, you will be entitled to its return. The reason is simple, you were just negotiating and you never got to the actual acceptance for a contract.
If you did this, then you could tie up the property for quite some time.
If you wait the 24 hours, and then don’t pay it, the Seller may say that’s a breach of contract, and terminate the transaction. So, doing that would shorten up the time period.
Conditions: Financing and Inspection
While you would have the right to terminate in good faith based upon either or both of these conditions being in place, you don’t have to worry about it. There’s no contract, so neither of those provisions apply. They simply provide you with something to discuss with the Seller.
Affirmation: Construed as Acceptance
You can appreciate that Courts really don’t like bad behaviour on anyone’s part. If there was no legal “acceptance” of the Agreement in the first place, then they will be looking for anything that you might have done or said or ultimately have failed to do, in order to draw the conclusion that there’s an enforceable contract.
What might that be? Well, paying the deposit could be such a fact. So, that’s why we paid it upfront.
Arranging for an inspection could be another reason. If there was no contract, then why would a Buyer inspect the property. So, pass on that step and there’s no “fact” which can be interpreted one way or the other.
Executing a Notice of Fulfillment or Waiver of a financing condition could also be construed as such a fact. A Court could say that once you did that, then there must be a contract.
Also, the submission of a letter of requisitions from a lawyer representing the Buyer could be construed as affirming the existence of a contract.
Finally, delay in and of itself. Here, nothing happened at all, but a Court could take the position that the lapse of time is sufficient to constitute acceptance. If you wanted out of a possible deal, then you should have said so. You had a duty to speak up. You said nothing while other parties acted to their detriment. So, on account of lashes (the principle of delay) you are stuck with the deal.
One thing for sure is that you did tie up that property for an extended period of time, which was your intention. And, you can’t wait forever!
Brian Madigan LL.B., Broker