Do you perceive any particular difference in the meaning of these two documents?
They are both used to firm up a deal.
What about the central vacuum that didn’t work on closing. Assume that there was a warranty that it would work on closing. And, also assume that, the home inspector found that it was broken.
Now, we want to “firm up” the deal.
Would an NOF vitiate the warranty? Would a Waiver vitiate the warranty?
You also, could use an Amendment to delete the “home inspection condition”. Would this make any difference, or are all three basically the same.
Fulfillment and Waiver, explain the use of each
Waivers and Notices of Fulfillments
The Notice of Fulfillment was created specifically to firm up a transaction that included a True Condition Precedent like a property severance. You can’t really just waive this. You don’t have the severance and you can’t buy half the property. That was truly all it was for.
Then, in the real estate industry further and better explanations were offered concerning its use, over the years, including the happening or the negation of an event as you mention. The difficulty was that this explanation really never went beyond the real estate community and has no impact whatsoever when it came to the Courts.
The deal was either firmed up by using either of these documents or it was not. It could also have been firmed up through the use of an Amendment. All three would work. All three would move the parties over to a firm deal. In the case of a home inspection condition, waiving, fulfilling or amending would all work. You would have the same result.
It wasn’t for several years following the Turney v. Zhilka case (1957 Supreme Court of Canada), that the Notice of Fulfillment (NOF) was drafted. For decades it wasn’t used at all. It really has only become popular in the last decade. And, you can’t really make up anything that the method you used to firm up the deal actually says or means anything other than that the deal was firmed up.
It doesn’t for example mean that the inspection took place, did not take place, was good, was satisfactory or was marginal. All of that would be a little bit of a pipe dream. But, if you did use an NOF it likely means that it probably took place.
However, you will appreciate that maybe it just means: “I have fulfilled this condition since I have decided not to proceed with the inspection at all…”. Thus, it may not even mean that the inspection took place.
If you are going to Court and you need to prove the condition of some item or you need to prove that a home inspection actually took place, then this is simple: just call the Inspector as a witness! What could be easier than that.
So, to firm up a deal, Waivers, Notices of Fulfillment and Amendments all work. Just remember that the Amendment requires both the Seller and the Buyer to sign.
Brian Madigan LL.B., Broker