The Problem Counting Days

Counting Days: Ontario Real Estate

Question:

If an agreement is accepted at 9:30 am, does the conditional period start that same day, or does it begin the following day?

The clause:

“This Offer is conditional upon the approval of the terms hereof by the Buyer’s solicitor.

Unless the Buyer gives notice in writing

delivered to the Seller personally or in accordance with any other provisions for the delivery of notice in this Agreement of Purchase and Sale or any Schedule thereto

not later than THREE (3) Business days after acceptance,

that this condition is fulfilled,

this Offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction.

This condition is included for the benefit of Buyer and may be waived at the Buyer’s sole option by notice in writing to the Seller as aforesaid within the time period stated herein.”

Answer:

Today, Thursday, February 13^th  is day 0, tomorrow Friday is day 1. Calendar days would take us to Sunday.

But, you used the more complicated and subject to interpretation “business days”. If you included a definition that would be great. Saturdays and Sundays are out. However, what about Family day coming up on Monday February 17^th?  Is it in or out? Unfortunately, since it is “provincial”, it is questionable and so far, unresolved by litigation.

The Banks happen to be closed so it would be best to leave it out.  The preference would be at least Tuesday February 18^th. The only for sure business day is Friday. If we leave out Family day is not a business day, then, that would bring us to Wednesday. If Family day is included as a business day, then the deadline is Tuesday.

Also, no one will have any idea what you mean if you use business days or banking days without a definition. If you are the Buyer, it goes in Schedule “A”. If you are the Seller and you expect to run into this frequently, then add it to Schedule “B”.

Some points and basic rules about “days”:

• Acceptance is Day 0
• Next day is Day 1
• Calendar days is preferred
• Days are all 24 hours, not shorter
• Be careful to note a shorter deadline on any particular day, specified in the Agreement
• Avoid banking days, since there is no definition in the Bank Act
• Avoid business days, it’s defined in TRESA, but the definition does not extend to Buyers and Sellers
• Using banking days, or business days, then be sure to define them in the Agreement
• the day begins at 12:00 am
• the day ends at 11:59:59 pm
• most years have 365 days, and every fourth year (leap year) has 366 days

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com