Question:
The Buyer removed all conditions with a Notice of Fulfillment (NOF). There were four conditions , three were due on 23 March, and one was due 29 March.
By Amendment, the condition due 29 March was moved up to 23 March, so that all four conditions were due at the same time.
The NOF referred to all four conditions but recited one as being due on 29 March, I assume by accident.
Do we have a valid firmed up agreement? Is the NOF valid and enforceable?
Answer:
This calls for an interpretation of a valid contract where Courts will display some consideration and leniency. When it comes to contract formation, that’s different. The Courts will be very technical when it comes to the essential elements of a contract. Thei conclusion will often be: “you’re still negotiating”.
One of the issues that arises is the technical position that OREA/Humber took with respect to education. They focused on the lowest common denominator, that is, the least smartest person in the room, so that that person would not make any mistakes,
So, they took the copy and paste route.
Take the entire clause and if there are four of them, then copy all four, paste them into the NOF. That’s fine, it’s simple and it works. But, here someone got the wrong condition drawn from the actual APS rather than the Amendment. A Court will simply conclude that was a simple mistake concerning the date. It was still the same Condition and the intention was to remove them all. When there is already a contract in place, the Courts will look to enforce that agreement. They will interpret te document as they think the parties would have intended.
Here’s the shorter way to remove all four conditions. Simply state:
“The Buyer waives the following conditions:
- Financing,
- Home inspection,
- Appraisal, and
- Insurance.”
This is fairly straightforward. It’s done all the time, but not very frequently by real estate agents. Why? They would actually have to think and ensure that their short descriptions were accurate.
Brian Madigan LL.B., Broker