No Rights Are Lost if Amendment is Used

This particular issue doesn’t seem to go away. Some agents think that something “bad: will happen if a Buyer’s Agent uses an Amendment rather than their preferred choice, namely the Notice of Fulfillment.

Let’s assume we have a Home Inspection Condition. The deal is struck on Monday, and the Home Inspection Condition is due by Thursday. In fact, the inspection takes place on Wednesday. The Seller is present and lies about the condition of the roof to the inspector. On Thursday, the Buyer elects to proceed with the deal. The Buyer will take his chances with the roof but is not entirely happy.

The Buyer gets rid of the Condition by:

1) An Amendment deleting the Home Inspection Condition, or

2) a Notice of Fulfillment, or

3) a Waiver.

Any one of these three methods will work. The deal closes, the roof is a disaster and the Buyer decides to sue the Seller for false representations made to the home inspector at the time of the inspection on Wednesday.

In accordance with the rules of Civil Procedure and the rules of Evidence, the Buyer will call the Home Inspector as a witness to testify at trial.

If the Buyer used an Amendment, that does not mean the home inspection condition was not part of the original Agreement in the first place. It simply means that that clause was deleted by the parties on Thursday. It sat there for 4 days until it was removed.

If the NOF was used, that does not mean that the Buyer was “over the top” happy with the inspection. It simply means, that the Buyer has decided to proceed.

If the Buyer used a Waiver, that does not mean that any rights were lost or anything else, it simply means that the Buyer has decided to proceed.

There is no provision for “mind-reading” here, the Buyer’s thoughts are not relevant in any event. Any one of the three choices will work.

The Amendment requires two parties to sign.

The NOF and Waiver are both unilateral documents.  The result is the same in all three cases, and at trial, the home inspector gets to testify what the Seller said on Wednesday, and the “chips fall where they may”.

Naturally, the removal of the Home Inspection Condition clause does not mean that the clause was never there. It was there on Monday and lasted until Thursday. The fact of the matter was that the home inspection really did take place on Wednesday. That’s all there is to it.

The rest of the concerns simply boil down to over active and worried minds, nothing else!

CAUTION: it is risky to use an Amendment if the Seller is not co-operative. It may permit the Seller the option not to sign it, thereby allowing the time limit to expire and withdraw from the transaction.

Brian Madigan LL.B., Broker

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