There is a standard form Counter Offer form which has been drawn up for use in Ontario.

There are some small issues which should be addressed if you propose to use the Form, and have it signed by your own client by e-mail

·        Acceptance

·        Attachments

·        Irrevocable Time

·        Authentication

Acceptance

The counter offer includes a reference to the acceptance of a previous offer. This is not possible. In law, that offer was rejected in its entirety. What is really proposed is to reuse some of that wording, and perhaps to change the price.

So, you might consider the following:

Delete as above in pre-printed Form:

The Seller accepts the attached offer and all its terms and conditions subject to the following amendments, exceptions and/or additions:

Insert:

The Seller agrees and adopts the offer as submitted by the Buyer evidenced by an Agreement dated 6 June 202x, together with changes agreed by the parties, as evidenced by their initials 8 June 202x, with the exception of the purchase price, which the Seller proposes to be __________ dollars ($__________)

Attachments

You will notice in the standard form that the offer which was not accepted, but which is to form the basis of the further negotiations is to be attached.

This is problematic. This document might already have been faxed 3 times, so it is already deteriorating, and difficult to read. Don’t fax it back and forth another two of three times. That defeats the purpose. Now, it will be completely useless, since it will be unreadable.

If you are able to create a suitable readable “PDF”, then, that would work.

The best advice would be to leave it “intact”, by referring to it as a document only. That leaves the third transmission, the good copy that can be relied upon later.

Notice the wording above. It was identified as an agreement dated on a certain date and amended as of a certain date.

Irrevocable Time

The form itself refers to a date but not a time. So, if you want to receive a phone call just before midnight, then leave this the way it is, otherwise specify the actual time that the Offer expires. That would then be consistent with other standard form documents.

Authentication

On the assumption that you propose to have your client sign the Counter Offer form, scan it and e-mail it back to you, then you will not be able to “witness” the signature, even if the client confirms this fact to you over the phone. However, what you can do it authenticate the document by deleting the word “witness” and inserting the words “authenticated not witnessed”.

Comment

It is preferable, of course, to simply meet with clients and deliver original signed documents all the time. However, increasingly, time constraints and the pressures by clients to undertake transaction efficiently call for some innovative approaches.

The Counter Offer form is a handy document to be used as long as it is amended appropriately.

Use of Document Execution Software

Increasingly, document execution software is being used. Each of the different platforms are somewhat different. It’s important to familiarlize yourself with the systems you propose to use. The same issues noted above arise and you will need to address these issues if you use the Counter Offer Form.

Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com