From time to time, copies of Agreements of Purchase and Sale will simply be unreadable.
If you are the real estate agent what should you do?
First, they didn’t just start out to be unreadable, they were faxed, scanned, faxed and scanned again. In some cases, someone might have taken a photographic image of the document, and then faxed that.
Even in 2021, we have people using old and ineffective equipment.
The result is that we have illegible and unreadable documents. That’s not good for anyone.
The difficulty going forward is to determine, what (if anything) you are going to do about the situation.
This is what is said in the Code of Ethics:
Written and legible agreements
(a) any agreement that deals with the conveyance of an interest in real estate is in writing; and
(b) any written agreement that deals with the conveyance of an interest in real estate is legible.
(2) Subsection (1) applies, with necessary modifications, if a brokerage and a customer have an agreement that provides for the brokerage to provide services to the customer in respect of any agreement that deals with the conveyance of an interest in real estate.
No Clarity Copy
The copies of the Agreement of Purchase and Sale are to be clear and legible. A “clarity” copy is simply a document for convenience. It is easier to read. It should not be signed under any circumstances. The deal is set forth in the original Agreement of Purchase and Sale. Although a few people may have to “squint”, it is still readable.
Slightly Illegible Copy
Now, the next question is the illegible copy. That would constitute a breach of the Code of Ethics (as indicated above) if that is what you are working with. Rather than run the risk of signing a new document, “squinting” or using some other means of improving the resolution of the document might work.
Completely Illegible Copy
The further issue arises with the “completely illegible” copy. This is a document which is so bad, that it doesn’t make any sense. No one can read it and people attempting to read it might come to different conclusions. This document runs the risk of not being an agreement at all. So, this document needs to be replaced. You could throw a clause in the new Agreement to the effect, that this reflects the bargain struck by the parties on xx August, 2021.
In this case, the actual document that you have in hand is little to no use to anyone.
Remedies and Options
If you are facing an illegible document such that you wonder whether you have any agreement at all, then, it should be fixed asap. It doesn’t make any sense to wait. You have a risky situation right now. Likely, things will get worse, not better.
So, while the “deal” is still fresh in everyone’s minds, put the deal on paper and have everyone sign again.
This document cannot be signed now as if it had been signed earlier. That would be falsely backdating the document.
The correct manner to address the issue would be to make reference to the earlier deal and mention the date of that deal. This new Agreement then reflects that deal, previously negotiated.
Going forward remember that there is a notable difference between a document which is difficult to read and one which is impossible to read.
Brian Madigan LL.B., Broker