Residential Realty Clauses
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RESIDENTIAL (RES)
(A) AGENCY DISCLOSURE
| R-Agency-01 | Sub-Agent Compensated through the Listing Broker |
| R-Agency-02 | Single Agency (Buyer as Customer and Seller as Client) |
| R-Agency-03 | Single Agency (Seller as Customer and Buyer as Client) |
| R-Agency-04 | Buyer Broker Compensated through Seller |
| R-Agency-05 | Buyer Broker Compensated through the Listing Broker |
| R-Agency-06 | Buyer Broker Compensated through the Buyer |
| R-Agency-07 | Dual Agency (When Applicable. Do no use in conjunction with Sub-Agent or Single Agency) |
(B) DEPOSIT/PAY A FURTHER SUM
| RES - 01 | Balance of Purchase Price |
| RES - 02 | Pay a Further Sum |
| RES - 03 | Deposit Increase - Additional Payment |
| RES - 04 | Deposit Increase - Multiple Payments |
| RES - 05 | Deposit Increase - On Removal of Condition(s) |
| RES - 06 | Deposit - Interest Bearing |
(C) DELIVERY OF DOCUMENTS
| RES - 07 | Delivery of Documents (including Facsimile) |
(D)CHARGE/MORTGAGE FINANCING
(i) Arranging Financing
| RES - 08 | Conditional Upon Arranging a New Charge/Mortgage |
| RES - 09 | Conditional Upon Arranging a New Charge/Mortgage - As a Percentage of the Purchase Price |
| RES - 10 | Buyer to pay Prepayment Charges for Existing Charge/Mortgage |
| RES - 11 | Assumption of Existing Charge/Mortgage (No Approval) |
| RES - 12 | Condition: Assumption of Existing Charge/Mortgage (Chargee/Mortgagee Approval) Condition Precedent) |
| RES - 13 | Seller Take Back Charge/Mortgage |
| RES - 14 | Seller Take Back - SIMPLE INTEREST ONLY |
(ii) Charge/Mortgage Privileges
| RES - 15 | Post Dated Cheque Provision |
| RES - 16 | Postponement Privilege |
| RES - 17 | Postponement Clause - Alternative 1 |
| RES - 18 | Postponement Clause - Alternative 2 |
| RES - 19 | Prepayment Privilege (Fully Open) |
| RES - 20 | Prepayment Privilege (Open in Accordance with Principal Amounts Falling Due) |
| RES - 21 | Prepayment Privilege (Open on Anniversary Date) |
| RES - 22 | Prepayment Privilege (Subject to Bonus) |
| RES - 23 | Renewal Privilege (Same Terms/Conditions Except for Further Renewal Privilege) |
| RES - 24 | Renewal Privilege (Specific Renewal Privileges) |
| RES - 25 | Right to Demolish |
| RES - 26 | Transfer/Acceleration Provision (At Option of Chargee/Mortgagee) |
(iii) Other Charge/Mortgage Conditions/Requirements
| RES - 27 | Conditional Upon Credit Check |
| RES - 28 | Conditional Upon Discharge of Specific Charge(s)/Mortgage(s) - Cost |
| RES - 29 | Conditional Upon Paydown of Existing Charge/Mortgage by Seller |
| RES - 30 | Conditional Upon Sale of Charge/Mortgage by Seller |
| RES - 31 | Sale of Charge/Mortgage by Seller Prior to Closing (Buyer's Co-operation |
| RES - 32 | Source of Down Payment (VTB) |
| RES - 33 | Payment of Penalty to Discharge Charge/Mortgage |
(E) POWER OF SALE
| RES - 34 | Power of Sale (General Provision) |
(F) SALE OF BUYER'S PROPERTY
| RES - 35 | Conditional Upon Sale of Buyer's Property |
| RES - 36 | Sale of Buyer's Property - Escape Clause |
| RES - 37 | Escape Clause (Removal of All Conditions) |
| RES - 38 | Conditional Upon Removal of Conditions on Buyer's Property |
| RES - 39 | Conditional Upon Seller's Release from Previous Agreement |
(G) G.S.T. CLAUSE
| RES - 40 | G.S.T. Where Buyer is a Registrant (Commercial Component) |
(H) REPRESENTATIONS/WARRANTIES
| RES -41 | Chattels - No Warranty .... |
| RES - 42 | Fixtures/Chattels - Good Working Order |
| RES - 43 | Seller Representations (General Clause) |
| RES - 44 | Seller Representations (Termination Remedy) |
| RES - 45 | Swimming Pool |
| RES - 46 | Swimming Pool (By-law Compliance) |
| RES - 47 | Swimming Pool (Winterization) |
| RES - 48 | Warranties - Specific Time Period |
| RES - 49 | Warranties - Survive Completion |
| RES - 50 | Warranties - Survive Completion (Limited to Current Transaction) |
(I) SURVEYS
| RES - 51 | Buyer Acknowledges Possible Survey Requirement |
| RES - 52 | Seller Agrees to Provide Existing Survey with Declaration |
| RES - 53 | Seller Agrees to Provide New Survey |
(J) UFFI CLAUSES
| RES - 54 | UFFI Present in Building |
| RES - 55 | Seller has No Knowledge of UFFI |
| RES - 56 | UFFI Found But Corrective Action Taken |
| RES - 57 | UFFI Removed from Building |
| RES - 58 | UFFI Test Performed with Negative Result |
| RES - 59 | UFFI Test Performed with Positive Result But Within Acceptable Limits |
(K) MISCELLANEOUS CLAUSES
| RES - 60 | Right to Assign Agreement of Purchase and Sale |
| RES - 61 | Right to Assign Agreement - Seller's Consent |
| RES - 62 | Assignment of Prior Agreement |
| RES - 63 | Change of Completion Date by Buyer |
| RES - 64 | Change of Completion Date by Seller |
| RES - 65 | Conditional Upon Inspection - Seller Allowed to Remedy |
| RES - 66 | Conditional Upon Inspection of Property by a Home Inspector - General Inspection |
| RES - 67 | Conditional Upon Home Inspection - Limited Inspection |
| RES - 68 | Delivery of a Report |
| RES - 69 | Conditional Upon Inspection by a Third Party |
| RES - 70 | Conditional Upon Inspection of Property - Termites |
| RES - 71 | Conditional Upon Satisfactory Soil Test. |
| RES - 72 | Conditional Upon Solicitor Approval (Buyer) |
| RES - 73 | Conditional Upon Solicitor Approval (Seller) |
| RES - 74 | Right of Re-Inspection |
| RES - 75 | Condition: Over-leveraged Properties |
| RES - 76 | Condition: Arrange New Charge/Mortgage (Condition Subsequent) |
| RES - 77 | Ontario Heritage Act Designation |
| RES - 78 | Agricultural Activities Acknowledgement |
(A) AGENCY DISCLOSURE
R - Agency - 01 Sub - Agent Compensated through the Listing Broker
The parties to the transaction hereby acknowledge that the Co-operating Broker has acted, and is acting as Sub-Agent of the Seller and will be compensated through the Listing Broker.
R - Agency - 02 Single Agency (Buyer as Customer and Seller as Client)
The Buyer hereby acknowledges that the Broker
_____________________________________, is the Agent of the Seller, representing
the interest of the Seller, and Buyer consents to proceed with this transaction.
R - Agency - 03 Single Agency (Seller as Customer and Buyer as Client)
The Seller hereby acknowledges that the Broker ________________________________________, is the Agent of the Buyer, representing the interest of the Buyer, and Seller consents to proceed with this transaction.
R - Agency - 04 Buyer Broker Compensated through the Seller
The parties to the transaction hereby acknowledge that the Broker is the Agent of the Buyer, working under a Buyer Agency Agreement, representing the interest of the Buyer and the Broker will be compensated through the Seller.
R - Agency - 05 Buyer Broker Compensated through the Listing Broker
The parties to the transaction hereby acknowledge that the Co-operating Broker acts for the Buyer under a Buyer Agency Agreement and that the Co-operating Broker will be compensated through the Listing Broker.
R - Agency - 06 Buyer Broker Compensated through the Buyer
Buyer Broker Compensated through the Buyer The parties to the transaction hereby
acknowledge that the Co-operating Broker acts for the Buyer under a Buyer Agency
Agreement and that the Co-operating Broker will be compensated through the
Buyer.
R - Agency - 07 Dual Agency (When applicable. Do not use in conjunction with Sub-Agent or Single Agency.)
The parties to the transaction hereby acknowledge that the Listing Broker represents the interests of the Seller and the Buyer, and there has been, and is, dual agency. The Seller and the Buyer have previously acknowledged and consented to such dual agency.
(B) DEPOSIT/PAY A FURTHER SUM
RES - 01 Balance of Purchase Price
The Buyer agrees to pay the balance of the purchase price, subject to adjustments, in cash or by certified cheque, to the Seller on the completion of this transaction.
RES - 02 Pay a Further Sum
The Buyer agrees to pay a further sum of ____________________________________________ ($________________), subject to adjustments, in cash or by certified cheque, to the Seller on completion of this transaction.
RES - 03 Deposit Increase - Additional Payment
The Buyer agrees to pay a further sum of ____________________________________________ ($________________), to ____________________, in cash or by negotiable cheque, not later than _____ p.m. on the ________day of ______________, 20 , as a supplementary deposit to be held in trust pending completion or other termination of this Agreement. This amount is to be credited towards the purchase price on completion of this transaction.
RES - 04 Deposit Increase - Multiple Payments
The Buyer agrees to pay the following supplementary deposits in the amounts stated not later than: [List Appropriate Times, Dates and Amounts] to _________________________, in cash or by negotiable cheque, to be held in trust pending completion or other termination of this Agreement. Such payments are to be credited towards the purchase price on completion of this transaction.
RES - 05 Deposit Increase - On Removal of Condition(s)
The Buyer agrees to pay a further sum of ____________________________________________ ($________________), to ____________________, in cash or by negotiable cheque, at the time of notification of fulfillment or removal of the condition pertaining to ____________________, as an additional deposit to be held in trust pending completion or other termination of this Agreement. This amount is to be credited towards the purchase price on completion of this transaction.
RES - 06 Deposit - Interest Bearing
The Buyer and the Seller hereby direct the deposit holder to place same in an interest bearing account or term deposit, with any accrued interest on the deposit to be paid to the Buyer as soon as possible.
(C) DELIVERY OF DOCUMENTS
RES - 07 Delivery of Documents (including Facsimile)
Any notice relating hereto or provided for herein shall be in writing. This Offer, any counter offer, notice of acceptance thereof, or any notice shall be deemed given and received, when hand delivered to the address for service provided herein or, where a facsimile number is provided herein, when transmitted electronically to that facsimile number.
NOTE: This Facsimile Clause may not be required as it appears as Clause #6 on the Agreement of Purchase and Sale.
(D) CHARGE/MORTGAGE FINANCING
(i) Arranging Financing
RES - 08 Conditional Upon
Arranging a New Charge/Mortgage
This Offer is conditional upon the Buyer arranging, at the Buyer's own expense, a new __________ Charge/Mortgage for not less than _______________________ ($__________), bearing interest at a rate of not more than ____ % per annum, calculated semi-annually not in advance, repayable in blended monthly payments of about ___________ ($_____________), including principal and interest, and to run for a term of not less than _____ years from the date of completion of this transaction.
Unless the Buyer gives notice in writing delivered to the Seller not later than _____ p.m. on the _______day of __________, 20 , 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 the Buyer and may be waived at the Buyer's sole option by notice in writing to the Seller within the time period stated herein.
NOTE 1: A waiver for the Buyer is included unless the Charge/Mortgage is to be arranged with specific Chargee/Mortgagee; i.e. if it is to be arranged through the Seller's Chargee/ Mortgagee then so state in the description and DO NOT provide a waiver, otherwise the Seller could suffer a substantial monetary penalty to discharge an existing Charge/Mortgage (or see RES - 10 below).
NOTE 2: If a Seller Take Back Charge/Mortgage is also being arranged, delete "not less than" preceding the amount being financed (otherwise the property could be over financed to the detriment of the Seller's security).
NOTE 3: In the event a Finder's Fee is received from a lending institution or Mortgage Broker, it is wise to include an acknowledgement such as the following:
"The Seller acknowledges that the agent will receive a Finder's Fee of $___________ in connection with the arranging of financing for the Buyer".
RES - 09 Conditional Upon Arranging a New Charge/Mortgage - As a Percentage of the Purchase Price
This Offer is conditional upon the Buyer arranging, at the Buyer's own expense, a new_____ Charge/Mortgage for not less than ____% of the purchase price, bearing interest at a rate of not more than ____% per annum, calculated semi-annually not in advance, repayable in equal blended monthly payments, amortized over a period of not less than__ years and to run for a term of not less than___ years from the date of completion of this transaction. Unless the Buyer gives notice in writing delivered to the Seller not later than ___p.m. on the __day of_______, 20 ____, 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 the Buyer and may be waived at the Buyer's sole option by notice in writing to the Seller within the time period stated herein.
RES - 10 Buyer to pay Prepayment Charges for Existing Charge/Mortgage
If the Charge/Mortgage being arranged by the Buyer is not obtained through the existing Chargee/Mortgagee, _________________, the Buyer will pay to the Seller, in addition to the purchase price, all prepayment and bonus charges which the existing Chargee/Mortgagee lawfully charges the Seller.
RES - 11 Assumption of Existing Charge/Mortgage (No Approval)
The Buyer agrees to assume the existing ________________________Charge/Mortgage held by ______________________for approximately__________________________, $_______________), bearing interest at the rate of _____% per annum, calculated semi-annually not in advance, repayable in blended monthly payments of __________________ ($____________), including both principal and interest, and due on the ________ day of _______________, 20 ____.
NOTE: The personal covenant of the original Chargor/Mortgagor still applies following the assumption of the Charge/Mortgage by the Buyer.
RES – 12 Condition: Assumption of Existing Charge/Mortgage (Chargee/Mortgagee Approval) (Condition Precedent)
The Buyer agrees to assume the existing ________________________Charge/Mortgage held by ____________________________ for approximately ___________________, ($________________), bearing interest at the rate of _____% per annum, calculated semi-annually not in advance, repayable in blended monthly payments of __________________ ($____________), including both principal and interest, and due on the ______day of _____________, 20 ____. This Offer is conditional upon the Buyer obtaining the approval of the Chargee/Mortgagee to assume the existing Charge/Mortgage.
Unless the Buyer gives notice in writing delivered to the Seller not later than _____ p.m. on the _____day of _________, 20____, 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. The Buyer hereby agrees to proceed immediately to make an application and provide such material as may be required by the Chargee/Mortgagee for approval of the Buyer as the Chargor/Mortgagor.
NOTE: This clause is a true Condition Precedent and neither a Seller nor a Buyer is entitled to waive this condition.
RES - 13 Seller Take Back Charge/Mortgage
The Seller agrees to take back a _________________________ Charge/Mortgage in the amount of ______________________________________________ ($_________________), bearing interest at the rate of _____% per annum, calculated semi-annually not in advance, repayable in blended monthly payments of ______________________________ ($________________), including both principal and interest, and to run for a term of _____ years from the date of completion of this transaction. (See Prepayment Privileges, Clauses RES - 19, RES - 20, RES - 21 & RES - 22.)
NOTE: Without a prepayment privilege, the borrower does not have any automatic right to early discharge of the Charge/Mortgage or prepayment of principal.
RES - 14 Seller Take Back - SIMPLE INTEREST ONLY
The Seller agrees to take back a _________________________ Charge/Mortgage [for the balance of the Purchase price] OR [in the amount of ____________________________________________ ($________________)] bearing interest at the rate of _____% per annum, repayable interest only __________[state payment interval, e.g., monthly, quarterly, etc.] and maturing on the ______ day of _______, 20___. (See Prepayment Privileges, Clauses RES - 19, RES - 20, RES - 21 & RES - 22.)
NOTE: Without a prepayment privilege, the borrower does not have any automatic right to early discharge of the Charge/Mortgage or prepayment of principal.
(ii) Charge/Mortgage Privileges
RES - 15
Post Dated Cheque Provision
The Buyer shall deliver to the Chargee/Mortgagee on the closing of this
transaction, and on each anniversary of the closing, a series of post-dated
cheques to cover all Charge/Mortgage payments due during the next twelve months.
RES - 16 Postponement Privilege
This Charge/Mortgage shall contain a clause permitting the renewal or replacement of the existing first Charge/Mortgage at any time, provided that any increase in the principal amount of the new first Charge/Mortgage over the amount of principal owing under the first Charge/Mortgage at the time of renewal or replacement shall be applied in reduction of the principal amount of this Charge/Mortgage; and the
Chargee/Mortgagee hereunder shall execute and deliver to the Chargor/Mortgagor such postponement agreement, Charge/Mortgage Statement, or other documents as the first Chargee/Mortgagee may reasonably require, forthwith upon request.
NOTE: If Charge/Mortgage being arranged is a third, etc., change clause to read: "replacement of the first and/or second Charge(s)/Mortgage(s)" and "principal owing under the first and/or second Charge(s)/Mortgage(s)".
RES - 17 Postponement Clause - Alternative 1
The Chargor/Mortgagor shall have the privilege of renewing or replacing the existing first Charge/Mortgage at any time provided that any increase in the principal of the new first Charge/Mortgage over the amount of principal owing under the first Charge/Mortgage at the time of renewal or replacement shall be applied without penalty in reduction of the principal amount of this Charge/Mortgage and the Chargee/Mortgagee will execute and deliver to the Chargor/Mortgagor a postponement agreement in favour of the new first Chargee/Mortgagee.
RES - 18 Postponement Clause - Alternative 2
The Chargee/Mortgagee will execute and deliver to the Chargor/Mortgagor a postponement agreement in favour of the new first Chargee/Mortgagee, provided that such replacement Charge/Mortgage shall not bear interest in excess of _____% per annum and if such financing is for an amount greater that the outstanding principal balance of the existing first Charge/Mortgage at the date of registration of the new first Charge/Mortgage, such increase shall be paid towards the reduction of the principal balance outstanding on this Charge/Mortgage.
RES - 19 Prepayment Privilege (Fully Open)
This Charge/Mortgage shall contain a clause permitting the Chargor/Mortgagor, when not in default, the privilege of prepaying all or part of the principal sum outstanding at any time or times without notice or bonus.
RES - 20 Prepayment Privilege (Open in Accordance with Principal Amounts Falling Due)
This Charge/Mortgage shall contain a clause permitting the Chargor/Mortgagor, when not in default, the privilege of prepaying all or part of the principal sum on any payment date or dates without notice or
bonus, provided that any partial prepayment shall equal the sum of the principal amounts of the payment(s) next falling due under the Charge/Mortgage.
RES - 21 Prepayment Privilege (Open on Anniversary Date)
This Charge/Mortgage shall contain a clause permitting the Chargor/Mortgagor, when not in default, the privilege of prepaying on each anniversary date a sum not to exceed _____% of the original principal mount, without notice or bonus.
RES - 22 Prepayment Privilege (Subject to Bonus)
This Charge/Mortgage shall contain a clause permitting the Chargor/Mortgagor, when not in default, the privilege of prepaying on any payment date a sum not to exceed _____% of the original principal amount, ubject to a bonus of __________ month's interest on the amount of principal being repaid.
RES - 23 Renewal Privilege (Same Terms/Conditions Except for Further Renewal Privilege)
This Charge/Mortgage shall contain a clause permitting the Chargor/Mortgagor, when not in default, the privilege of renewing this Charge/Mortgage on its maturity, for a further term of _____ year(s) on the same terms and conditions save and except for the right to any further renewal.
RES - 24 Renewal Privilege (Specific Renewal Privileges)
This Charge/Mortgage shall contain a clause permitting the Chargor/Mortgagor, when not in default, the privilege of renewing this Charge/Mortgage upon its maturity, for a further term of _____ year(s) at the rate of interest charged by ____________________, on the date thirty days preceding the maturity date of the Charge/Mortgage, to credit worthy borrowers for _____ year Charge/Mortgage loans, and otherwise on the same terms and conditions save and except for the right of a further renewal.
RES - 25 Right to Demolish
This Charge/Mortgage shall contain a clause providing that the Chargor/Mortgagor shall have the right to alter or demolish any or all of the existing buildings now on the property without such activity
constituting waste under the terms of this Charge/Mortgage, provided that such alteration or demolition shall comply with all applicable by-laws, building codes or other applicable laws or regulations.
RES - 26 Transfer/Acceleration Provision (At Option of Chargee/Mortgagee)
This Charge/Mortgage shall contain a clause providing that if the Chargor/Mortgagor sells, assigns, or otherwise transfers title to the property or places a Charge/Mortgage on the property without the express
consent of the Chargee/Mortgagee then, at the sole option of the Chargee/Mortgagee, all monies secured thereby shall become due and payable immediately, together with interest accrued to the date thereof.
(iii) Other Charge/Mortgage Conditions/Requirements
RES - 27 Conditional Upon Credit Check
This Offer is conditional upon the Seller being satisfied concerning the personal and/or credit worthiness of the Buyer. Unless the Seller gives notice in writing to the Buyer or to the Buyer's address as hereinafter indicated not later than _____p.m. on the _____day of ________, 20 ___, 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 the Seller and may be waived at the Seller's sole option by notice in writing to the Buyer within the time period stated herein.
RES - 28 Conditional Upon Discharge of Specific Charge(s)/Mortgage(s) - Cost
This Offer is conditional upon the Seller being satisfied that the cost to discharge the ___________ Charge(s)/Mortgage(s) shall not exceed the sum of ______________________, ($_______________).
Unless the Seller gives notice in writing delivered to the Buyer or to the Buyer's address as hereinafter indicated not later than ________p.m. on the ___________day of ______, 20 , 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 the Seller and may be waived at the SELLER's sole option by notice in writing to the Buyer within the time period stated herein.
NOTE: Most discharges are covered in the printed Agreement.
RES - 29 Conditional Upon Paydown of Existing Charge/Mortgage by Seller
The Seller agrees to pay the existing ____________ Chargee/Mortgagee the sum required to reduce the interest rate by _____% for the term of ____ year(s) of this Charge/Mortgage. This Offer is conditional upon the Seller being satisfied that the cost to reduce the interest rate to _____% shall not exceed the sum of __________________________________________($________________). Unless the Seller gives notice in writing delivered to the Buyer or to the Buyer's address as hereinafter indicated not later than _____ p.m. on the ________ day of _______________, 20____, that this condition is fulfilled, this Offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction. This condition is included for the benefit of the Seller and may be waived at the Seller's sole option by notice in writing to the Buyer within the time period stated herein.
RES - 30 Conditional Upon Sale of Charge/Mortgage by Seller
This Offer is conditional upon the Seller obtaining at the Seller's own expense, a commitment for the sale of the aforementioned _____________________Charge/Mortgage [for an amount of not less than ________________________($________________)] OR [at a discount of not more than _____% of the amount of said Charge/Mortgage]. Unless the Seller gives notice in writing delivered to the Buyer or to the Buyer's address as hereinafter indicated not later than _____ p.m. on the _____________day of _______________,20 ___, 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 the Seller and may be waived at the Seller's sole option by notice in writing to the Buyer within the time period stated herein.
RES - 31 Sale of Charge/Mortgage by Seller Prior to Closing (Buyer's Co-operation)
The Buyer acknowledges that the Charge/Mortgage being taken back by the Seller may be sold. The Buyer agrees to co-operate fully with the Seller in connection with the sale of this Charge/Mortgage, and shall provide such personal and financial information, together with such documents as the Assignee of the Charge/Mortgage may reasonably require, forthwith upon request by the Seller, in order that the sale of the Charge/Mortgage may be completed.
RES - 32 Source of Down Payment (VTB)
The Buyer warrants that the down payment stated in this transaction shall be at least _____% of the purchase price and does not incur any payment obligations or indebtedness.
RES - 33 Payment Penalty to Discharge Charge/Mortgage
The Seller acknowledges that there may be a penalty to discharge the existing Charge/Mortgage and agrees to pay any costs, expenses or penalties incurred in discharging the existing Charge/Mortgage.
(E) POWER OF SALE
RES - 34 Power of Sale (General Provision)
It is further understood that on the date of acceptance of this Offer there is default under the terms of the Charge/Mortgage which entitles the Seller to exercise the Power of Sale. The only evidence of the default which the Buyer may require shall be a statutory declaration by the Seller setting forth the facts entitling the Seller to sell under the Power of Sale, including the particulars of the notice of exercising the Power of Sale, the names of the persons upon whom service of the notice has been effected, and declaring that default under the Charge/Mortgage entitling the Seller to exercise the Power of Sale has continued up to and including the date of acceptance of this Offer and to the time of closing. The Buyer understands and agrees that the Chargor/Mortgagor has the right to redeem the property up to the time of waiver or expiration of all rights of termination or fulfillment of all conditions and this Agreement is subject to that right. In the event of redemption by the Chargor/Mortgagor, this Agreement shall be null and void and any deposit monies paid will be refunded in full without deduction.
Where a court of competent jurisdiction prevents the completion of the within sale by an interim, interlocutory or permanent injunction or otherwise, then the Seller (Chargee/Mortgagee) is not obliged to complete the said transaction and the Agreement shall be terminated and the deposit shall be returned to the Buyer in full without deduction. In no event shall the Seller be responsible for any costs, expenses, loss or damages incurred or suffered by the Buyer and the Seller shall not have any further liability to the Buyer whatsoever.
Notwithstanding other provisions of this Agreement, the Seller shall not be required either on or before closing to discharge its own Charge/Mortgage or any existing Charges/Mortgages, liens or other encumbrances subsequent in priority to the Seller's Charge/Mortgage, which may be registered against the Property.
The Buyer also acknowledges that the Seller makes no representation and/or warranties with respect to the state of repair of the premises, inclusions of chattels or fixtures, or ownership of fixtures or appliances, and the Buyer agrees to accept the property "as is". Chattels and fixtures on the premises may or may not be included with the premises but the Seller shall not be obliged to remove any chattels or fixtures. All the provisions of the Mortgages Act shall supersede any part of this Agreement which may be in variance thereof or in conflict therewith.
NOTE: Most Chargee(s)/Mortgagee(s) have their own specific clauses concerning Power of Sale. Each situation should be carefully analyzed prior to the drafting of an Agreement of Purchase and Sale.
(F) SALE OF BUYER'S PROPERTY
RES - 35 Conditional Upon Sale of Buyer's Property
This Offer is conditional upon the sale of the Buyer's property known as ______________. Unless the Buyer gives notice in writing delivered to the Seller not later than ____p.m. on the ______day of ____________,20, 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 the Buyer and may be waived at the Buyer's sole option by notice in writing to the Seller within the time period stated herein.
RES - 36 Sale of Buyer's Property - Escape Clause
Provided further that the Seller may continue to offer the property for sale and, in the event the Seller receives another Offer satisfactory to the Seller, the Seller may so notify the Buyer in writing by delivery to the Buyer or to the Buyer's address hereinafter indicated. The Buyer shall have _____ hours from the giving of such notice to waive this condition by notice in writing delivered to the Seller, failing which this Offer shall be null and void, and the Buyer's deposit shall be returned in full without deduction.
NOTE: The Escape Clause only requires the removal of one specific condition.
RES - 37 Escape Clause (Removal of All Conditions)
Provided further that the Seller may continue to offer the property for sale and, in the event the Seller receives another Offer satisfactory to the Seller, the Seller may so notify the Buyer in writing by delivery to the Buyer or to the Buyer's address hereinafter indicated. The Buyer shall have ______ hours from the giving of such notice to waive all conditions by notice in writing delivered to the Seller, failing which this Offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction.
RES - 38 Conditional Upon Removal of Condition on Buyer's Property
This Offer is conditional upon the Buyer receiving notification of the removal of all conditions in an existing Agreement of Purchase and Sale for the property known as ________________________. Unless the Buyer gives notice in writing delivered to the Seller not later than _____ p.m. on the _______day of ____________, 20____, 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 the Buyer and may be waived at the Buyer's sole option by notice in writing to the Seller within the time period stated herein.
RES - 39 Conditional Upon Seller's Release from Previous Agreement
This Offer is conditional upon the Seller being released from a prior Agreement of Purchase and Sale. Unless the Seller gives notice in writing delivered to the Buyer or to the Buyer's address as hereinafter indicated not later than _____ p.m. on the ______day of _______________, 20___, 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.
NOTE: This clause is a true Condition Precedent and neither a Seller nor a Buyer is entitled to waive this condition.
(G) G.S.T. CLAUSE
NOTE 1: G.S.T. is applicable to: New properties; substantially renovated properties; properties where input tax credits have been claimed.
NOTE 2: The sale of large parcels of land and vacant land can be subject to capital gains and/or G.S.T. This can depend upon: present and future use; who is selling and who is buying. EXPERT ADVICE SHOULD BE SOUGHT.
RES - 40 G.S.T. Where Buyer is a Registrant (Commercial Component)
The Buyer shall deliver to the Seller on closing: 1. a statutory declaration that the Buyer is a registrant within the meaning of Part IX of the Excise Tax Act of Canada (the "Act") and that the Buyer's registration is in full force and effect; 2. reasonable evidence of the Buyer's registration under the Act; and 3. an undertaking by the Buyer to remit any tax eligible under the Act in respect of this transaction and to indemnify the Seller against all loss, costs and damages resulting from the Buyer's failure to do so.
(H) REPRESENTATIONS/WARRANTIES
NOTE 1: Various warranty clauses are provided. Care must be taken to ensure that the correct wording is utilized to reflect the agreement of the parties.
NOTE 2: When drafting these clauses, you may wish to provide a specific time limit for the Buyer to notify the Seller. (See Warranties - Specific Time Period)
RES - 41 Chattels - No Warranty
The Buyer acknowledges that there is no express or implied warranty by the Seller on the chattels included in this Agreement of Purchase and Sale.
RES - 42 Fixtures/Chattels - Good Working Order
The Seller represents and warrants that the fixtures and chattels as included in this Agreement of Purchase and Sale will be in good working order and free from all liens and encumbrances on completion. The Parties agree that this representation and warranty shall survive and not merge on completion of this transaction, but apply only to the state of the property at completion of this transaction.
RES - 43 Seller Representations (General Clause)
The Seller represents and warrants that on completion: __________________________________ e.g. There is no known damage to the basement, roof, or elsewhere caused by water seepage or flooding. The Parties agree that these representations and warranties shall survive and not merge on completion of this transaction, but apply only to the state of the property at completion of this transaction.
RES - 44 Seller Representations (Termination Remedy)
The Seller represents and warrants that on completion: e.g. There is no known damage to the basement, roof, or elsewhere caused by water seepage or flooding. The Parties agree that these representations and warranties shall survive and not merge on completion of this transaction, but apply only to the state of the property at completion of this transaction. The Buyer, at the Buyer's sole option, may terminate this Agreement at any time prior to completion in the event any of the representations and warranties contained herein are incorrect, and the deposit shall be returned to the Buyer in full without deduction.
RES - 45 Swimming Pool
The Seller represents and warrants that the swimming pool and equipment are now, and on the completion date shall be, in good working order. The Parties agree that this representation and warranty shall survive and not merge on completion of this transaction, but apply only to the state of the property existing at completion of this transaction.
RES - 46 Swimming Pool (By-law Compliance)
The Seller represents and warrants to the best of the Seller's knowledge and belief that the swimming pool, its equipment, and the fencing of the said pool, comply with all applicable by-laws, regulations, and legislation. The Parties agree that this representation and warranty shall survive and not merge on completion of this transaction, but apply only to the state of the property existing at completion of this transaction.
RES - 47 Swimming Pool (Winterization)
The Seller agrees to winterize the swimming pool and equipment prior to completion, and shall provide a written undertaking on completion that the Seller shall be responsible for any costs or expenses incurred by the Buyer if the swimming pool and equipment are not properly winterized, provided only that the Buyer gives written notice of any claim to the Seller not later than _____ p.m. on the _________ day of _______________,20 , failing which the Seller accepts no responsibility for costs.
RES - 48 Warranties - Specific Time Period
The Parties agree that the representations and warranties stated herein shall survive and not merge on completion, but shall expire at _____ p.m. on the ______day of ______________,20 ____, and be of no further force and effect unless the Buyer, prior to such expiry, has given written notice of a claim under the warranty to the Seller.
RES - 49 Warranties - Survive Completion
The Parties agree that the representations and warranties stated herein shall survive and not merge on completion of this transaction.
RES - 50 Warranties - Survive Completion (Limited to Current Transaction)
The Parties agree that the representations and warranties stated herein shall survive and not merge on completion of this transaction, but apply only to the state of the property at completion of this transaction.
(I) SURVEYS
NOTE 1: See Form 101, Clause - Documents and Discharge.
NOTE 2: Buyer should acknowledge, in the Offer, any known easements. See Form 101, Clause - Title.
NOTE 3: Allow adequate time and ensure deadline is prior to end of requisition period.
Alternatively, the requirement for a survey could be "within _____ days after waiver of all conditions (and prior to end of requisition period)".
NOTE 4: Do not use the phrase "up-to-date". This expression is subject to different interpretation by individual Buyers, Sellers and their respective Solicitors.
RES - 51 Buyer Acknowledges Possible Survey Requirement
The Buyer acknowledges that a new survey may be required for purposes of financing and also to satisfy the requirements of the Buyer's Solicitor, and agrees to obtain said survey at the Buyer's expense.
RES - 52 Seller Agrees to Provide Existing Survey with Declaration
The Seller agrees to provide, at the Seller's own expense, not later than __p.m. on the ____ day of ________, 20____, an existing survey of said property showing the current location of all structures, buildings, fences, improvements, easements, rights-of-way, and encroachments affecting said property.
The Seller will further deliver, on completion, a declaration confirming that there have been no additions to the structures, buildings, fences, and improvements on the property since the date of this survey.
RES - 53 Seller Agrees to Provide New Survey
The Seller agrees to provide, at the Seller's own expense, not later than __p.m. on the ____day of ____________, 20____, a new survey of said property showing the current location of all structures, buildings, fences, improvements, easements, rights-of-way, and encroachments affecting said property.
(J) UFFI CLAUSES
RES - 54 UFFI Present in Building
The Seller discloses and the Buyer acknowledges that the building contains urea formaldehyde foam insulation. The Buyer accepts the property in that state and further acknowledges that the Seller does not warrant the quality or quantity of the insulation or the quality of its installation.
RES - 55 Seller has No Knowledge of UFFI
The Seller has no knowledge as to whether the property has been insulated with urea formaldehyde foam insulation and specifically makes no warranty in that regard. This paragraph supersedes any other term or condition or warranty in relation to urea formaldehyde foam insulation.
NOTE: Use where Seller has no personal knowledge of UFFI (i.e. a corporation handling a company transfer, Seller selling under Power of Sale, etc.). The Buyer may consider making the Offer conditional on an inspection for UFFI.
RES - 56 UFFI Found But Corrective Action Taken
The Seller represents and warrants that the building was insulated with urea formaldehyde foam insulation but has undergone the following corrective actions: _______________________________.
The Parties agree that this representation and warranty shall survive and not merge on completion of this transaction, but apply only to the state of the property at completion of this transaction.
NOTE: Details of all corrective action should be inserted in the space provided or supporting documentation attached as a Schedule.
RES - 57 UFFI Removed from Building
The Seller represents and warrants that, although urea formaldehyde foam insulation (UFFI) was installed in the building, such UFFI was removed in ________, _______, by _____________________, and the Seller further warrants that, to the best of his knowledge, no UFFI has been installed in the building since such removal. The Parties agree that this representation and warranty shall survive and not merge on completion of this transaction, but apply only to the state of the property at completion of this transaction. As evidence of the removal, the Seller attaches the following documents as Schedule "____" which shall form part of this Agreement of Purchase and Sale.
RES - 58 UFFI Test Performed with Negative Result
The Seller represents and warrants that the building was tested for the presence of urea formaldehyde foam insulation (UFFI) on the ___day of ______, ________, by _________________, and the result of such testing indicated that no UFFI was present in the building, and on the basis of such results the Seller provides this warranty. This clause applies only to UFFI and does not, in any way, include the testing of urea formaldehyde emissions from sources other than UFFI. The Parties agree that this representation and warranty shall survive and not merge on completion of this transaction, but apply only to the state of the property at completion of this transaction. As evidence of such testing, the Seller attaches the following documents as Schedule "______" which shall form part of this Agreement of Purchase and Sale: _________________________________________.
RES - 59 UFFI Test Performed with Positive Result But Within Acceptable Limits
The Seller acknowledges that the building contains urea formaldehyde foam insulation (UFFI) and was tested for the presence of emissions from UFFI on the ________ day of __________,______, by ______________________________, and (year)(month) (month) (year) (itemize documents) (year)(month) the results of such testing indicated that emission from UFFI are within the acceptable limits and no further actions have been taken. As evidence of such testing, (itemize documents) the Seller attaches the following documents as Schedule "_____" which shall form part of this Agreement of Purchase and Sale:_________________________________________________.
(K) MISCELLANEOUS CLAUSES
RES - 60 Right to Assign Agreement of Purchase and Sale
The Buyer shall have the right at any time prior to closing, to assign the within Offer to any person, persons or corporation, either existing or to be incorporated, and upon delivery to the Seller of notice of such assignment, together with the assignee's covenant in favour of the Seller to be bound hereby as Buyer, the Buyer hereinbefore named shall stand released from all further liability hereunder.
NOTE: Do not use when the Agreement includes a VTB Charge/Mortgage.
RES - 61 Right to Assign Agreement - Seller's Consent
The Buyer covenants and agrees that the Buyer will in no way directly or indirectly assign, rent, lease, convey, list or in any way advertise for sale, sell, or otherwise transfer the Buyer's rights under this Agreement prior to completion to any other person without the express written consent of the Seller. Such consent may be granted or withheld at the Seller's sole option.
RES - 62 Assignment of Prior Agreement
The Buyer acknowledges that the Seller has purchased the property by way of a prior accepted Agreement of Purchase and Sale, a copy of which is attached as Schedule "_____" hereto, and the Seller is assigning the Seller's rights thereunder to the Buyer. Upon acceptance of this Offer, the Seller shall give written notice of Assignment to any other parties affected by this Agreement. If the Seller is unable to complete the transaction by reason of default of the party from whom the Seller has purchased the property, the Seller shall not be liable for any damage or loss incurred by the Buyer, and this Agreement of Purchase and Sale shall become null and void and the deposit shall be returned to the Buyer in full without deduction.
RES - 63 Change of Completion Date by Buyer
Notwithstanding the completion date set out in this Offer, the Buyer may _______________ the completion date of the transaction by not more than ______ days, by giving written notice of the amended completion date to the Seller or the Seller's Solicitor at least ______ days in advance of the earlier of the completion date set out herein and the amended completion date.
RES - 64 Change of Completion Date by Seller
Notwithstanding the completion date set out in this Offer, the Seller may ____________________ the completion date of the transaction by not more than _____ days, by giving written notice of the amended completion date to the Buyer or the Buyer's Solicitor at least _____ days in advance of the earlier of the completion date set out herein and the amended completion date.
RES - 65 Conditional Upon Inspection - Seller Allowed to Remedy
This Offer is conditional upon the inspection of the subject property by a home inspector at the Buyer's own expense and the obtaining of a report satisfactory to the Buyer or a report revealing deficiencies in the property which the Seller is willing and able to remedy. Unless the Buyer gives notice in writing delivered to the Seller not later than __ p.m. on the____ day of_________, 20____, 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. The Seller agrees to co-operate in providing access to the property for the purpose of this inspection. This condition is included for the benefit of the Buyer and may be waived at the Buyer's sole option by notice in writing to the Seller within the time period stated herein.
RES - 66 Conditional Upon Inspection of Property by a Home Inspector - General Inspection
This Offer is conditional upon the inspection of the subject property by a home inspector at the Buyer's own expense, and the obtaining of a report satisfactory to the Buyer in the Buyer's sole and absolute discretion. Unless the Buyer gives notice in writing delivered to the Seller not later than _____ p.m. on the ______day of ____________, 20____, 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. The Seller agrees to co-operate in providing access to the property for the purpose of this inspection. This condition is included for the benefit of the Buyer and may be waived at the Buyer's sole option by notice in writing to the Seller within the time period stated herein.
RES - 67 Conditional Upon Home Inspection - Limited Inspection
This Agreement is conditional upon the Buyer, at the Buyer's own expense, having the relevant building(s) inspected by a bona fide home inspection firm to determine that the building(s) are in sound structural and mechanical condition and that the electrical system is safe and adequate, and that, in the written opinion of the home inspection firm, all deficiencies can be remedied at a cost not greater than _________________ ($_______________). Unless the Buyer gives notice in writing delivered to the Seller not later than _____ p.m. on the ______day of _________, 20____, 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 the Buyer and may be waived at the Buyer's sole option by notice in writing to the Seller within the time period stated herein.
RES - 68 Delivery of a Report
In the event the foregoing condition is not fulfilled or waived by the Buyer, the Buyer agrees to provide the Seller with a true copy of the Inspection Report and all estimates related thereto prior to the return of the deposit herein.
RES - 69 Conditional Upon Inspection of Property by a Third Party
This Offer is conditional upon the inspection of the subject property by ________________________ and the obtaining of a report satisfactory to the Buyer at the Buyer's own expense. Unless the Buyer gives notice in writing delivered to the Seller not later than ____p.m. on the _____day of ______________, 20 , 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. The Seller agrees to co-operate in providing access to the property for the purpose of this inspection. This condition is included for the benefit of the Buyer and may be waived at the Buyer's sole option by notice in writing to the Seller within the time period stated herein.
RES - 70 Conditional Upon Inspection of Property - Termites
This Offer is conditional upon the Buyer or the Buyer's appointed representative inspecting the subject property for termites and obtaining a report satisfactory to the Buyer at the Buyer's own expense. Unless the Buyer gives notice in writing delivered to the Seller not later than ___ p.m. on the __day of ____, 20____, 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. The Seller agrees to co-operate in providing access to the property for the purpose of this inspection. This condition is included for the benefit of the Buyer and may be waived at the Buyer's sole option by notice in writing to the Seller within the time period stated herein.
RES - 71 Conditional Upon Satisfactory Soil Test
This Offer is conditional upon the Buyer obtaining at the Buyer's own expense, soil tests verifying the land is satisfactory to the Buyer, in the Buyer's sole and absolute discretion, for the construction of a ______on the land. Unless the Buyer gives notice in writing delivered to the Seller not later than _______ p.m. on the ________day of ______,20, 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. The Seller agrees to co-operate in providing access to the land for the purpose of the soil tests. This condition is included for the benefit of the Buyer and may be waived at the Buyer's sole option by notice in writing to the Seller within the time period stated herein. If the Buyer fails to provide a notice of fulfilment of the condition or fails to waive the condition as provided above, the Buyer agrees to reasonably restore any alterations to the condition of the property caused by the soil tests.
RES - 72 Conditional Upon Solicitor Approval (Buyer)
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 not later than __ p.m. on the ________ day of __________, 20___, 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 within the time period stated herein.
RES - 73 Conditional Upon Solicitor Approval (Seller)
This Offer is conditional upon the approval of the terms hereof by the Seller's Solicitor. Unless the Seller gives notice in writing delivered to the Buyer or to the Buyer's address as hereinafter indicated not later than ___ p.m. on the ______day of ______, 20___, 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 Seller and may be waived at the Seller's sole option by notice in writing to the Buyer within the time period stated herein.
RES - 74 Right of Re-Inspection
The Buyer shall have the right to inspect the property one further time prior to completion, at a mutually agreed upon time, provided that written notice is given to the Seller. The Seller agrees to provide access to the property for the purpose of this inspection.
RES - 75 Condition: Over-leveraged Properties
The Seller hereby acknowledges that the real property is subject to registered encumbrances that may, given the Seller's obligation to pay commissions and other related closing costs, exceed the available proceeds of sale from this transaction. This Offer shall, therefore, be conditional upon the Seller obtaining the written approval of all Chargees/Mortgagees and other registered encumbrances as to the final acceptance of this Offer and their agreement to discharge their encumbrances without payment in the aggregate.
RES - 76 Condition: Arrange New Charge/Mortgage (Condition Subsequent)
The Buyer may terminate this Agreement through written notice delivered to the Seller not later than ______ p.m. on the _______ day of ___________, 20____, if a new first Charge/Mortgage cannot be arranged by the Buyer, at the Buyer's expense. This Charge/Mortgage is to be for a sum of not less than ______________________________________, ($______________) bearing interest at a rate of not more than _____% per annum, calculated semi-annually, not in advanced, repayable in blended monthly payments of about ___________________________, ($__________), including both principal and interest, and to run for a term of not less than _____ year(s) from the date of completion of this transaction. Upon receipt of the above notice, this Agreement shall be null and void and the deposit shall be returned to the Buyer in full without deduction. If no such notice is received within the above time limit, then this term of contract shall be deemed waived by the Buyer and this Agreement shall remain valid and binding whether or not such Charge/Mortgage has been arranged.
RES – 77 Ontario Heritage Act Designation
The parties hereto acknowledge that the subject property is/may be designated as a Heritage Property and is subject to the provisions of The Ontario Heritage Act, 1974. The Buyer acknowledges that the Seller has made this disclosure. The Buyer accepts the property with this designation and agrees to continue with this transaction.
RES – 78 Agricultural Activities Acknowledgement
The Buyer acknowledges that the property lies within partially within, adjacent to or within two kilometers of an area zoned, used or identified for agricultural and food production activities and that such activities occur in the area. These activities may include intensive operations that cause discomfort and inconveniences that involve, but not limited to dust, noise, flies, light, odour, smoke, traffic, vibration, operating of machinery during any 24 hour period, storage and utilization of manure and the application by spraying or otherwise or chemical fertilizers, soil amendments, herbicides and pesticides. One or more of these inconvenience have protection in Ontario under the Farming and Food Production Protection Act.