Using a Common Survey Clause (Ontario)

Question:

Consider the use of the following clause which is in common usage:

“The Seller agrees to provide, at the Seller’s own expense, not later than 9 pm on the third business day following acceptance of this offer, an existing survey of said property.”

Answer:

Although this is a very short clause, there are several issues here. Paragraph 26 provides that this added clause will supersede Paragraph 12. So, the good news is that you are getting something, and that’s more than what the standard form APS said.

Whatever it is will be delivered by 9:00 pm. The problem is that most Brokerages will be closed by that time, so the Listing Agent will likely have to deliver it much earlier or try to track down someone in the evening.

Next, we really don’t know for sure what a business day might be. There’s no such thing. But, you could have another provision somewhere in the APS which might exclude Saturdays, Sundays, and Statutory Holidays. Without that, it just means everyday. Banking days wouldn’t be any better.

An existing survey is an upgrade over the APS. There was no limitation to either possession or control, so that presents a challenge for the Seller. That’s a normal restriction in the Agreement.

The clause calls for an original, not a copy, not a photocopy and not a picture taken on someone’s phone. This means that the original needs to be delivered and there may be, only one. This document may be in the possession of the Seller’s lawyer or the first mortgagee.

There is no obligation to update the survey. But, rejoicing might be somewhat premature. Now, for the bad news. This clause calls for a survey of the property not a building location survey (which is really what you want). So, the Seller could go to the Registry office, purchase a Plan of Subdivision for the entire 300 lots, for $10  and that would be good enough.

Paragraph12 : Documents and Discharge

Buyer shall not call for the production of any title deed, abstract, survey or other evidence of title to the property except such as are in the possession or control of Seller. If requested by Buyer, Seller will deliver any sketch or survey of the property within Seller’s control to Buyer as soon as possible and prior to the Requisition Date.

Comments

Consider saying: “Up-to-date survey showing all improvements….”.

 I always like a date rather than business days It’s so open business days it means different things to different people

 I cross out up to date and insert existing. If I have it, I cross out the entire clause and give them what we have and have all parties initial the copy of the survey, and add it as a schedule

Remember the Seller will give us his survey , but we are not demanding he do an update . I probably would have made it “5 days”, unless there was an issue I was concerned about .

After specific date; remove “at his expense”; insert “in his possession”.

Brian Madigan LL.B., Broker

www.OntarioRealEstatSource.com

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