Inappropriate Schedule “B” in Ontario

Some Brokerages just won’t leave it alone. There is a standard form OREA Agreement of Purchase and Sale, but they simply have to change it.

What is wrong with this Schedule “B”?

My comments are shown in Italics.

THIS SCHEDULE MUST REMAIN AS WRITTEN OR THE OFFER SUBMITTED WILL NOT BE CONSIDERED! 

Naturally, it needs to be presented. It is the Seller’s decision whether to accept or reject, not the Brokerage.

As per the signed Form 244 “Seller’s Directions”, there will be no pre-emptive offers or offers with escalation clauses, being considered.

That’s fine. In complete sentence but the meaning is there.

Deposit instructions: All deposits must be in the form of a bank draft made out to the “Seller’s Lawyer in Trust”. No deposits are required until the offer is FIRM & BINDING. The Buyer(s)will have 5 business days from the time, the offer is FIRM & BINDING. The Buyer(s)or the Buyer’s agent will deliver the deposit (bank draft), personally or couriered directly to the Seller’s Lawyer’s office. With the understanding that the Buyer(s), must also provide the Seller’s Brokerage with an acknowledgement from the Seller’s Lawyer, of receipt of the full deposit, in the time stated. 

Odd, places Seller at risk. Lowers the bar somewhat from the standard OREA form. Sounds lazy, from the Listing agent’s perspective. Don’t use “business days” unless they are defined specifically in the APS.

Also, the trigger time should be “acceptance”. Using “firm and binding” clouds the issue and might be interepreted to mean that it doesn’t start until all conditions are satisfied, fulfilled or waived.

Last “apparent sentence” was incomplete.

The Buyer(s) acknowledges that by execution of this Agreement of Purchase and Sale, they are creating a binding Agreement, whether or not they have submitted the deposit, and that they are under strict obligation to remit the deposit as per the deposit requirements and timeline contained herein. Failing which, the parties to this Agreement irrevocably acknowledge and agree that the Seller shall be at liberty to offer the property for sale, without the requirement for a “Mutual Release”, noting that notwithstanding the aforementioned, failure to remit the deposit as specified herein, may still be deemed an anticipatory breach of this Agreement of Purchase and Sale, with the seller reserving the right to seek damages and any other remedies available to them. 

This is the law anyways. Why would one add a paragraph stating this? Irrevocably acknowledge is simply “nonsense talk”. May still be deemed, seems odd. The Seller has the option. Unusual way to express this.

For the purpose of this transaction, the terms “business days”, will mean, any day other than a Saturday, Sunday, or a statutory holiday in Ontario. 

Ok, missed this. It should define on the basis of federal or provincial laws or both.

 Buyers and Sellers agree and/or acknowledge that no information provided by xxxxxxxxxx Inc. Brokerage and it’s registrants is to be construed as expert legal, financial, tax, environmental advise and that they have had the opportunity to consult with any such professional advisors, prior to signing this Agreement. 

It’s is incorrect, they mean “its”.

Completely unnecessary. It’s already there, and it’s ineffective anyways.

The parties hereto consent and agree to the use of electronic signatures, pursuant to the Electronic Commerce Act 2000, S.O.2000, c17 as amended from time to time with respect to this Agreement and any other documents respecting this transaction. 

This is already there.

The Buyer(s) and Seller(s), acknowledge and agree that they are required to close this transaction notwithstanding any impacts of COVID-19.

Very silly comment. Any of those Covid references need to be deleted.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com