Conditions Start When?

Question:

Conditions question. My buyer client had an Offer accepted last Thursday at 1:30 pm. It was irrevocable until 11:59 pm Thursday. Seller does not do e-signature and his out of town agent had to drive 2 hrs back to her office to get accepted paperwork scanned and sent back. Her scanner was broken. She told me over the phone that the Offer was accepted. Nothing was sent on Thursday.

On Friday, she sent me screenshots of the accepted offer. She told me the scanner was still broken and hard copy would not be delivered until Monday. I said no thank you, I’ll come pick up the hard copy as my client’s lender needs it!

I picked up a hard copy last Saturday. My Broker of Record confirmed that 5 business days begins from moment I received the accepted, fully executed agreement. I thought the Listing agent and I, were on the same page.

Now, the Listing agent is telling me conditions expire tonight, as per her Broker of Record telling her that the condition states 5 days from accepted offer. But we didn’t have the paperwork for another 2 days! Whose Broker of Record is correct?

Answer:

This doesn’t sound good. You could wait for 10 days to get your copy. Who cares! Nothing turns on that. But, it looks like you don’t have acceptance. That’s missing here. Yes, there was a verbal discussion. But, that’s nothing. You need a letter, fax or email saying that it was “accepted” and that must take place before the Offer expires.

Acceptance must be communicated within the irrevocable time. So, it seems that the Listing agent had until midnight Thursday. Even though they said it was accepted “out loud”, that’s not good enough.

Acceptance cannot be conveyed verbally, you need something in writing.

You need the “communication of acceptance” in writing. How? Letter, fax or email all work. Text is not good enough. The rest of the day goes by and.,.. crickets….., nothing. So, when do the conditions start etc? They don’t. You don’t have a deal. You are still negotiating. You need all new paperwork.

Text is not available because it’s not set out in the Notices provision in the Agreement of Purchase and Sale.

We require actual acceptance first. Here we don’t have it.

A written message is all you need. That moves it away from “verbal”, but it doesn’t have to be the actual full executed Agreement of Purchase and Sale. It just needs to convey the “acceptance message”. And, as required it must be letter (document) fax or email.

Theoretically, if you had received this message at 8:02 pm on Thursday evening, then, that’s the time that Conditions would have started.

Brian Madigan LL. B., Broker

www.OntarioRealEstateSource.com