Extending the Closing Date with an Enforceable Term

Question:

Looking for a good clause for a flexible closing date that is mutually acceptable to both buyer and seller? Both Buyer and Seller want to have the option of moving the closing date if needed since both parties have a house to sell / buy.

Answer:

Here are some clauses for consideration:

For the Seller

The Buyer and Seller agree that the Seller, upon giving a minimum of _____days written notice to the Buyer (excluding, Saturday, Sunday or Statutory Holidays), may unilaterally extend the date set for completion, one or more times, not to exceed _____ days in total, to be calculated from the date of acceptance of this Agreement, for the purpose of ……

And, for the Buyer

The Buyer and Seller agree that the Buyer, upon giving a minimum of _____days written notice to the Buyer (excluding, Saturday, Sunday or Statutory Holidays), may unilaterally extend the date set for completion, one or more times, not to exceed _____ days in total, to be calculated from the date of acceptance of this Agreement, for the purpose of…….

Here are some examples, there are of course, many more:

  • extending the time to permit the Seller to obtain a Certificate of Appointment of Estate Trustee.
  • extending the time to permit (Seller/Buyer) to obtain the Consent of the Municipality to the severance proposed in Schedule C.
  • extending the time to permit the Seller to obtain vacant possession of the property following an application to the Landlord and Tenant Board..

You are aware that any provision to the effect that the parties will mutually agree to extend the closing is unenforceable. You cannot have an agreement to agree to something in the future. In fact, without saying anything, the parties could always agree to change the closing date.

To be effective: the right must be unilateral.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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