Vacant Possession and Occupancy


Assuming the deal closes at 2:00 pm, the APS says 6:00 pm, the Registry Office closes at 5:00 pm and the end of the day is 11:59 pm, WHEN must vacant possession be given?


To answer this question, the correct time would be no later than 1:59:59 pm, or effectively one second BEFORE the actual closing time.

On a theoretical checklist, “vacant possession” would be one of the items marked off prior to the completion of the closing. You will also appreciate that there are numerous problems with this. Some Sellers, some agents and some lawyers don’t know the correct answer. Obviously, that doesn’t help. Then, some people are well-intentioned but they just don’t get out “in time”. They are nice, they are upset, they are apologetic, but they are still there. Others are there to assert their rights. And, even if they are wrong, from the Buyers perspective, there’s not much you can do when we are talking about a few hours.

Also, it doesn’t help that the Standard Form Agreement of Purchase and Sale has the WRONG closing time, namely 6:00 pm, when the Registry office closes at 5:00 pm. Some commentators have tried to explain this. But, there is no explanation. This was a simple ERROR. Otherwise, escrow closing arrangements would be detailed in the agreement relating to that extra hour.

The other problem which is a continuing one is that no one knows when the lawyers are really going to close the deal. Many times that is just a surprise. The Seller thinks that he has until late in the day, plans to be out by 3:00 pm, and then his lawyer calls and advises that the deal closed at 10:00 am. Thanks for the surprise! Now, he is in someone else’s house. If he tells his lawyer in advance that he needs most of the day to pack up and get out, his own lawyer will tell him that it can’t be any later than 4:59:59 because the Registry office closes at 5:00 pm. Naturally, that is just theoretical because it would take a minimum of about 45 minutes to complete the registration over the internet.

Realistically, 4:00 pm should be about the latest time to vacate. In some cases, the time of closing is very important, right down to the minute.

It would be helpful if this matter were addressed specifically in the Agreement of Purchase and Sale.

Brian Madigan LL.B., Broker

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