Since we know that there is a problem signing the current version of the Confirmation of Acceptance, how should the statement be handled?
It looks like you have the following options:
1) Amend it, and Sign it
2) Have it Signed by the Agent
3) Add another Statement
1) Amend it and Sign it
You will recall that it appears in the OREA standard form Agreement of Purchase and Sale as follows:
Confirmation of Acceptance: Notwithstanding anything contained herein to the contrary, I confirm this Agreement with all changes both typed and written was finally accepted by all parties at _____am/pm this _____ day of _____20xx.
_____________
(Signature of Seller or Buyer)
Prior to this version of the standard form, the statement was called “Confirmation of Execution”. So, the quick answer is change it back!
You need to delete the word “Acceptance” in the title in the first line, and substitute “Execution”, In the third line, you need to delete the word “accepted” and substitute the word “executed”. That should do the trick! The person who is the last to sign can reasonably sign that statement because it is true.
The downside, of course, is that it only deals with step one in the two step acceptance process.
2) Have it Signed by the Agent
The actual problem with the new statement is that the agent is the one who handled the communication of the acceptance. That means it is only the agent who can truly sign the Confirmation of Acceptance.
So, in the signature line which says:
(Signature of Seller or Buyer)
delete “Seller or Buyer” and substitute “Agent”.
The correct time for the agent to insert, will be the time of communication, not the time that their client signed the document. That time is merely the execution of the agreement, or the first step in the acceptance process.
Now, at least, the document appears to be regular on its face, and the statement is made by a person who has personal knowledge.
You will indeed appreciate that there is a lot of room for questioning of a person who otherwise signed a false statement, either in the examinations for discovery or at trial. Don’t expose yourself to any unnecessary risks.
This way, with that minor change to the “agent”, the statement is “true” and the agent is “truthful”. That’s certainly a good way to start a lawsuit.
3) Add another Statement
The missing item in this process has been documenting “the communication” of the acceptance. That’s the final step, in this two step process.
So, why not have another statement which actually says precisely that:
Confirmation of Communication: Notwithstanding anything contained herein to the contrary, I confirm that I personally communicated the final acceptance of this Agreement with all changes both typed and written, on behalf of the Offeree to the Offeror in accordance with the agreed upon method of communication at _____am/pm this _____ day of _____20xx.
_____________
(Signature of Agent)
This statement should be signed by the Agent, It should include a time prior to the expiration of the irrevocable time.
What would it mean?
Let’s assume the irrevocable period was to expire at 8:00 pm, if “7:59 pm” were inserted, then it would be clear that it was properly accepted within time, because there’s still one minute to go.
The issue now is where would you place such a statement? It could be a stand alone document. If that is the case, then the Confirmation of Acceptance should be changed as noted above. You need both statements to be true.
Also, you could change it in Schedule “B”. This is the added schedule often posted on MLS Listings by the brokerage to be attached as part of the Offer. In effect, it would override the standard form. But, you have to say that in the schedule
COMMENT
You will notice that there are several ways to address the issue and several possible solutions which were covered here. There are many more.
If you are unsure how to handle this matter, then you should consider seeking advice from a lawyer or a solicitor practising in the field of real estate.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com