Let’s have a look at two clauses:
No Waiver
“This Agreement of Purchase and Sale is conditional until 9:00 p.m. on the 25th day of November, 202_, (“Due Diligence Date”) to permit the Buyer to investigate, make inquiries, attend at the property and conduct such tests as may be necessary, conduct market feasibility studies, determine the appropriate and suitability for development of the property, receive information from Municipal, County and Conservation authorities and evaluate costs thereof, in relation to developing the subject property. If the Buyer is not fully and completely satisfied, in his sole and absolute discretion (to be determined upon a subjective basis only) then, the Buyer may terminate this Agreement of Purchase and Sale by giving written notice to the Seller at any time before 9:00 pm on the Due Diligence Date. Upon receipt of this notice of termination, the agreement of purchase and sale shall become null and void and the deposit together with any accrued interest thereon, without deduction shall be paid to the Buyer.”
Waiver Added
“This Agreement of Purchase and Sale is conditional until 9:00 p.m. on the 25th day of November, 202_, (“Due Diligence Date”) to permit the Buyer to investigate, make inquiries, attend at the property and conduct such tests as may be necessary, conduct market feasibility studies, determine the appropriate and suitability for development of the property, receive information from Municipal, County and Conservation authorities and evaluate costs thereof, in relation to developing the subject property. If the Buyer is not fully and completely satisfied, in his sole and absolute discretion (to be determined upon a subjective basis only) then, the Buyer may terminate this Agreement of Purchase and Sale by giving written notice to the Seller at any time before 9:00 pm on the Due Diligence Date. Upon receipt of this notice of termination, the agreement of purchase and sale shall become null and void and the deposit together with any accrued interest thereon, without deduction shall be paid to the Buyer. This Condition is included for the benefit of the Buyer and may be waived by the Buyer, by notice in writing delivered to the Seller or the Seller’s agent at any time prior to 9:00 p.m. on the Due Diligence Date.”
The Waiver Issue
So, do you need the Waiver: yes or no? Really, it’s that simple a question!
Answer
No, it’s not necessary, at all.
Reason
The first Condition was drafted as a Condition Subsequent. The deal is going forward UNLESS, the Buyer steps up and says “no”.
The same Condition Subsequent is not enhanced in any way by adding the Waiver.
Brian Madigan LL.B., Broker