Clauses & Phrases For use with Contracts of Purchase & Sale

Transcription

1 Clauses & Phrases 2015 For use with Contracts of Purchase & Sale

2 ASSOCIATION OF SASKATCHEWAN REALTORS CLAUSES AND PHRASES FOR CONTRACTS OF PURCHASE AND SALE 2015 EDITION

3 INTRODUCTION The Association of Saskatchewan REALTORS (Association) can best fulfill its responsibility and role in organized real estate by ensuring that all registrants engaged in real estate have an opportunity to be properly trained and well informed, and thereby better serve the public in a professional manner. To this end, this series of clauses and phrases is provided to complement the growing list of educational programs, reference materials, and standard forms available to the general membership. Poorly drafted Offers to Purchase are a significant problem in real estate practice. As with any contract, the purpose of each item included must be clear and so specific that there is no misunderstanding possible with regard to who will do what, by what date, etc. When in doubt on any issue, registrants are advised to seek the advice of their broker, or branch manager, and if necessary, a lawyer. Taking extra care when drafting clauses and phrases in offers may help to prepare an enforceable contract. Registrants must be familiar with the form of contract they are using and be knowledgeable as to how to use the necessary clauses and phrases. No clause or phrase should be used without due consideration as to its meaning and effect and must be tailored to suit the needs of the parties. While the sample clauses and phrases provided in this booklet are useful in many circumstances, they should be used only as a guide. It is important that the applicable clause or phrase be reviewed and considered carefully prior to inserting it into a contract, to ensure that the clause or phrase is suitable for the circumstances of the particular situation. Any clause or phrase used must clearly and accurately reflect the intention of the buyer or seller. The sample clauses and phrases may need to be altered accordingly. Registrants must recognize their limitations and refrain from negotiating contracts beyond the scope of their knowledge and experience. ii

4 GENERAL DISCLAIMER AND CAUTION TO USER The Association of Saskatchewan REALTORS (Association) has developed these clauses and phrases for its members to consider in the preparation of contracts of purchase and sale. The clauses and phrases, which are contained herein, are provided solely for the purpose of guidance and do not in any way constitute required wording or legal advice. Every real estate transaction is unique and the Association of Saskatchewan REALTORS does not warrant and is not responsible in any way for the adequacy, sufficiency, applicability, accuracy, or suitability or any of the clauses or provisions hereinafter set out. Further, the Association of Saskatchewan REALTORS assumes no liability for the utilization of any of the clauses or provisions hereinafter set out. The registrant is encouraged to seek expert advice as warranted in the drafting of agreements. Revised August, 2015 COPYRIGHT Association of Saskatchewan REALTORS Saskatoon, SK S7J 2V8 Phone: Toll-free: Website: iii

5 IMPORTANT INSTRUCTIONS TO USERS a) Typed Supersedes Printed: Any clauses or phrases added to the body of the offer will supersede any information in the pre-printed form. Care must, therefore, be taken with any inclusions to ensure that both parties are clear about the intent of any such inclusions. b) Conditions Versus Warranties/Representations: The decision to utilize a condition, warranty, or other representation will depend largely on circumstances. The vast majority of clauses are presented in condition format; however, various warranty examples have been included. The reader should note that most warranties are made to the best knowledge and belief and do not extend beyond the current transaction. Many variations exist in the marketplace and caution is advised when using warranties and representations. c) Subject to Clauses: It is always important to be clear on whether a condition you are putting into an offer to purchase is a condition precedent (i.e., a subject to clause) or not. A condition precedent refers to a condition that must be fulfilled prior to closing for the offer to purchase to be complete. In general, these clauses are used to deal with preliminary matters, such as financing, inspections, or the sale of the Buyer s home. Usually, these subject to conditions are so important that if they are not satisfied or waived in writing, the deposit is returned to the Buyer and the contract is void. When all subject to conditions in the offer have been satisfied, or waived in writing with the agreement of both parties, then a binding contract exists between the Buyer and Seller. If the Buyer subsequently defaults or fails to complete the transaction, the Buyer is in breach of contract and the Seller may be entitled to take whatever remedies exist in law, including retaining the deposit. iv

6 When utilizing subject to clauses, be as specific as possible. Ensure that a date is inserted for satisfaction or removal of the conditions. d) Terms of the Contract: Terms are important inclusions to the offer, e.g., possession date, what chattels remain, etc. While these terms are enforceable as part of the contract for which the parties can sue and be sued, the sale does not automatically cancel if not adhered to. Subject to clauses are usually not used for such terms of the contract you would not want the sale to be automatically cancelled if the Seller, on closing, failed to leave the fridge and stove that had been included in the contract. e) Alternative Wordings: The clauses and phrases provided are examples and have been provided for information purposes only. Users should carefully read the particular clause or phrase and revise as required to meet individual circumstances. f) Capitalized Words: The first letter of selected words has been capitalized for emphasis only and should not be viewed as a required format. g) Use of Pronouns: This material should be read with all changes of gender and number as the reader may feel is required. v

7 TABLE OF CONTENTS INTRODUCTION... ii GENERAL DISCLAIMER AND CAUTION TO USER... iii IMPORTANT INSTRUCTIONS TO USERS... iv A. CLAUSES AND PHRASES... 1 PART 1: RESIDENTIAL CLAUSES... 1 AGENCY... 1 AGENCY-1 Seller to Only Pay Seller s Brokerage... 1 AGENCY-2 Buyer Pays Buyer s Brokerage... 1 AGENCY-3 Buyer s Agent Paid by Both the Seller s and Buyer s Brokerages... 1 AGENCY-4 Limited Dual Agency/Disclosure of Payment... 1 AGENCY-5 Not in Limited Dual Agency... 1 AGENCY-6 Single Agency/Buyer as Customer and Seller as Client... 1 AGENCY-7 Single Agency/Seller as Customer and Buyer as Client... 2 AGENCY-8 Registrant Disclosure... 2 ALARM SYSTEMS... 2 ALARM-1 Alarm System to be Removed... 2 ALARM-2 Alarm System to be Kept but Not Monitored... 2 ALARM-3 Buyer to Assume Monitoring Charges to Alarm System... 2 BUILDINGS/CONSTRUCTION... 2 BUILD/CONST-1 Condition Obtaining Building Permit... 2 BUILD/CONST-2 Walk-Through Inspection Deficiency List Clause... 3 BUILD/CONST-3 Seller to Complete/Repair Deficiencies... 3 BUILD/CONST-4 Confirmation New Home Warranty... 3 BUILD/CONST-5 Seller Warranty Against Structural Defects... 3 BUILD/CONST-6 Seller Warranty Work/Materials... 3 CHATTELS, FIXTURES, AND EQUIPMENT... 4 CHATT-1 Fixtures/Chattels No Warranty... 4 CHATT-2 Equipment Good Working Order... 4 CHATT-3 Chattels Transfer to Buyer in Good Working Order... 4 CONDOMINIUMS... 4 CONDO-1 Alterations/Changes to Unit During Interim Occupancy... 4 CONDO-2 Compliance by Buyer, Guests, and Family Members... 4 i

8 CONDO-3 Tenant to Occupy Property... 5 CONDO-4 Condominium Plan Not Registered/Contract Signed... 5 CRIMINAL ACTIVITY... 5 CRIM-1 No Criminal Activity - Warranty... 5 CRIM-2 Criminal Activity - Acknowledgement... 5 CRIM-3 No Growth or Manufacture of Illegal Substances - Warranty... 5 CRIM-4 Growth or Manufacture of Illegal Substances - Acknowledgement... 6 CRIM-5 The Safer Communities and Neighbourhoods Act Warranty.. 6 CRIM-6 The Safer Communities and Neighbourhoods Act Condition.. 6 CRIM-7 The Criminal Property Forfeiture Act... 6 DEPOSITS/PAYMENTS... 6 DEP/PAY-1 Deposit Trust Account... 6 DEP/PAY-2 Amount of Deposit... 6 DEP/PAY-3 Conditional on Deposit... 6 DEP/PAY-4 No Deposit Provided... 7 DEP/PAY-5 Deposit Increase On Removal of Condition(s)... 7 DEP/PAY-6 Deposit Increase Additional Payment... 7 DEP/PAY-7 Deposit Interest Bearing... 7 DEP/PAY-8 Conditional on Lawyer Approval/Holding of Deposit... 7 DOCKS AND BOATHOUSES... 7 DOCKS-1 Condition... 7 DOCKS-2 Seller Warranty... 7 ENVIRONMENTAL... 8 ENV-1 Agricultural Activities Acknowledgement... 8 ENV-2 Buyer Accepts Building/Property in Present Condition... 8 ENV-3 Seller s Remedy of Condition... 8 ENV-4 Non-existence of Condition... 8 ENV-5 Condition Acceptable Level... 9 ENV-6 Conditional on Site Inspection/Report... 9 ENV-7 Condition Oil Tank Aboveground or Underground... 9 ENV-8 Underground Tank Seller has Removed... 9 ENV-9 Underground Tank Seller to Remove... 9 ENV-10 Satisfactory Soil Test ESTATE SALE EST-SAL-1 Conditional on Letters Probate/Consent GOODS AND SERVICES TAX CLAUSES (GST) GST-1 Conditional on Buyer/Seller Receiving and Approving GST Information GST-2 Buyer to Pay GST GST-3 Seller to Pay GST/Buyer to Assign Rebate ii

9 GST-4 Eligibility for GST Rebate GST-5 GST Not Included GST-6 GST in Addition To GST-7 Not Subject to GST GST-8 Buyer to Remit GST INSPECTION OF PROPERTY INSP-1 Condition Inspection of Property by a Home Inspector INSP-2 Condition Inspection of Property by a Home Inspector Condominium INSP-3 Buyer Right of Re-Inspection INSP-4 Inspection for Termites, Bedbugs, etc INSP-5 Right of Re-Inspection INSULATION INSUL-1 Seller Warrants No UFFI, Asbestos, Zonolite, or Vermiculite.. 12 INSUL-2 Present in Property INSUL-3 Seller has no Knowledge INSURANCE INS-1 Buyer Obtaining Insurance INS-2 Warranty re Cancellation or Refusal to Issue Insurance Policy 13 INS-3 Approval of Fire/Property Insurance INS-4 Buyer Acknowledgement of Woodstove/Fireplace INS-5 Conditional on Confirmation of Valid Insurance for Woodstove/Fireplace LAND RESTRICTIONS LAND-1 Crown Land Restrictions/Reservations LAND-2 Hazard Land, Flood Plain, Environmentally Protected Area LAND-3 Heritage Property LAND-4 Land Lease Buyer to Assume LAWYER/SOLICITOR APPROVAL LAW-1 Lawyer/Solicitor Approval LAW-2 Expert Advice to be Obtained MORTGAGES MORT-1 Arranging of New Mortgage MORT-2 Conditional on New Mortgage with Existing Mortgagee MORT-3 Discharge of Existing Mortgage Seller to Pay MORT-4 Conditional on Assumption of Existing Mortgage (Mortgagee Approval) MORT-5 Assumption of Existing Mortgage (No Approval) MORT-6 Conditional on Seller Take Back Mortgage MORT-7 Conditional on Legal Advice Agreement for Sale MORT-8 Conditional on Legal Advice Lease with Option to Purchase 15 iii

10 MORT-9 Buyer to Bear Costs Agreement for Sale or Seller to Take Back Mortgage MORT-10 Buyer Credit Report MORT-11 Payment in Advance MORT-12 Conditional on the Appraisal Equal Greater Purchase Price 16 MORT-13 Buyer Acknowledges Finder Fee MORT-14 Conditional on Seller Taking Buyer s Property In Trade MORT 15 Right to Demolish NEW HOME WARRANTY PROGRAM NHWP-1 Saskatchewan New Home Warranty Program NON-RESIDENT SELLER NONRES-1 Holdback for Non-resident Sellers POSSESSION DATE POSS-1 Change of Possession Date by Buyer POSS-2 Change of Possession Date by Seller PROPERTY CONDITION DISCLOSURE STATEMENT PCDS-1 Seller to Provide a Property Condition Disclosure Statement.. 17 PCDS-2 Property Condition Disclosure Statement to form Part of Offer 17 REAL PROPERTY REPORT RPR-1 Seller to Provide Existing Real Property Report RPR-2 Conditional on Seller to Provide New Real Property Report RPR-3 Buyer to Obtain Real Property Report RELATIVE/ADVISOR/FINANCIAL APPROVAL APP-1 Conditional on Contract Approval APP-2 Conditional on Viewing by Third Party APP-3 Conditional on Financial Advice RENT/SALE OF PROPERTY RENT-1 Confidentiality of Disclosed Rental Information RENT-2 Seller Warranty Tenancy Information RENT-3 Seller Warranty Tenancy Information RENT-4 No Rent Increases Pending Completion of Sale RENT-5 Notices to Tenants of New Owner RENT-6 Buyer Assumption of Existing Tenancy RENT-7 Conditional on Seller as Tenant RENT-8 Seller Notice to Tenant(s) RENT-9 Conditional on Documentation/Legality of Suite RENT-10 Unauthorized Accommodation RENT-11 Lease Agreement for Mobile Home in Mobile Home Park RENT-12 Presence of Pets on Property iv

11 ROAD ACCESS ACCESS-1 Conditional upon Road Access by Open Public Road ACCESS-2 Road Access Alternatives SALE OF BUYER S PROPERTY SBP-1 Conditional on Sale of Buyer s Property SBP-2 Conditional on Sale of Buyer s Property Option Clause SBP-3 Conditional on Sale of Buyer s Property/to be Listed Option Clause SBP-4 Conditional on Completion of Sale of Buyer s Property SBP-5 Conditional on Seller s Release From Previous Offer to Purchase SBP-6 Conditional on Seller Purchase SEWAGE SYSTEM/SEPTIC SYSTEM SEW/SEP-1 Warranty Good Working Order SEW/SEP-2 Condition Approvals and Good Working Order SWIMMING POOLS SWIM-1 Seller Warrants Condition of Pool SWIM-2 Seller Warrants Legislative Compliance SWIM-3 Seller Responsible for Winterizing Pool TITLE TITLE-1 Buyer Acceptance of Information on Title WATER SUPPLY WATER-1 Water Supply Potability WATER-2 Water Supply Buyer s Condition WATER-3 Water Supply Seller s Warranty WATER-4 Water Supply Well Certificate ZONING ZON-1 Conditional on Buyer Confirmation of Zoning ZON-2 Conditional on Buyer Acquiring Zoning Changes ZON-3 Zoning Warranty by the Seller v

12 PART 2: COMMERCIAL CLAUSES AND PHRASES APPROVAL COMM-1 Solicitor s Approval BUILDING LOCATION CERTIFICATE COMM-2 Building Location Certificate, Building Plans & Mechanical Drawings FINANCIAL STATEMENTS COMM-3 Approval of Financial Statements by Buyer s Accountant COMM-4 Financial Statements Available but not Delivered to Buyer ENVIRONMENTAL COMM-5 Satisfactory Environmental Site Analysis INSPECTION OF PROPERTY COMM-6 Satisfactory Inspection COMM-7 Right of Access to Property COMM-8 Inspection of Real Property MISCELLANEOUS PROPERTY CLAUSES COMM-9 Sale of Buyer s Property COMM-10 Seller Permitted to Remain on Property COMM-11 Easement COMM-12 Right of Way COMM-13 Encroachment COMM-14 Party Wall Agreements COMM-15 Floors COMM-16 Cleaning COMM-17 Parking Area COMM-18 Assessment Appeals COMM-19 Local Improvement Levies COMM-20 Non Merger MORTGAGES COMM-21 Prepayment COMM-22 Renewal of Mortgage COMM-23 Mortgagee Consent to Subdivide COMM-24 Mortgagee Consent for Rezoning COMM-25 Mortgagee Consent to Dedication of Road COMM-26 Mortgagee Consent to Granting of Easements COMM-27 Mortgagee Consent for Registration in Land Titles COMM-28 Partial Mortgage Sale of Lots vi

13 RENTAL PROPERTY COMM-29 Supply Copy of Leases SERVICES AND EQUIPMENT COMM-30 All Equipment in Good Working Order COMM-31 No Representations or Warranties on Chattels COMM-32 Machinery and Equipment COMM-33 Seller to Repair COMM-34 Absence of Work Orders COMM-35 Service Maintenance Contracts COMM-36 Additional Equipment SOLICITOR COMM-37 Solicitor Clause ZONING/SUBDIVISION COMM-38 Zoning COMM-39 Zoning Satisfaction COMM-40 Conditional upon Rezoning with Seller s Consent COMM-41 Zoning COMM-42 No Site Plan Development Agreement COMM-43 Conditional on Buyer Approval/Franchise Agreement COMM-44 Conditional on Franchisor s Approval/Assignment of Franchise B. COMPLETION GUIDELINES FOR THE SEVEN MANDATORY FORMS RESIDENTIAL CONTRACT OF PURCHASE AND SALE COUNTER OFFER TO RESIDENTIAL CONTRACT OF PURCHASE AND SALE NOTICE TO REMOVE CONDITION(S) ON RESIDENTIAL CONTRACT OF PURCHASE AND SALE SCHEDULE C (SPECIFIED TERMS AND CONDITIONS FOR CONTRACT OF PURCHASE AND SALE OF A RESALE CONDOMINIUM UNIT) DISCLOSURE OF INTEREST IN TRADE vii

14 6. ANCILLARY SERVICES IN THE PURCHASE OF RESIDENTIAL REAL ESTATE AMENDMENT TO RESIDENTIAL CONTRACT OF PURCHASE AND SALE viii

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16 A. CLAUSES AND PHRASES PART 1. RESIDENTIAL CLAUSES AND PHRASES AGENCY AGENCY-1 Seller to Only Pay Seller s Brokerage The Seller s Brokerage agrees to reduce the commission payable by the Seller to % of the sale price. AGENCY-2 Buyer Pays Buyer s Brokerage Seller, Seller s Brokerage, Buyer and Buyer s Brokerage acknowledge that provided this sale closes, the total commission payable to the Buyer s Brokerage is being paid exclusively by the Buyer. AGENCY-3 Buyer s Agent Paid by Both the Seller s and Buyer s Brokerages Seller and Buyer acknowledge that the Buyer s agent is being paid commission by both the Seller s Brokerage and the Buyer s Brokerage. AGENCY-4 Limited Dual Agency/Disclosure of Payment The Seller and Buyer acknowledge that the Seller s and Buyer s Brokerage is being paid commission in the amount of $ by the Seller and commission in the amount of $ by the Buyer. AGENCY-5 Not in Limited Dual Agency Buyer and Seller acknowledge that although the Buyer s Brokerage and the Seller s Brokerage operate within the same corporate franchise, they are separate Brokerages, and therefore are not in a Limited Dual Agency relationship with the Buyer or Seller. AGENCY-6 Single Agency/Buyer as Customer and Seller as Client The Buyer hereby acknowledges that the Brokerage is the Agent of the Seller, representing the interest of the Seller, and the Buyer consents to proceed with this transaction, as an unrepresented party. 1

17 AGENCY-7 Single Agency/Seller as Customer and Buyer as Client The Seller hereby acknowledges that the Brokerage is the Agent of the Buyer, representing the interest of the Buyer, and the Seller consents to proceed with this transaction, as an unrepresented party. AGENCY-8 Registrant Disclosure Use of Disclosure of Interest in Trade form. ALARM SYSTEMS ALARM-1 Alarm System to be Removed The Seller agrees, at the Seller s expense, to buy out the monitoring and/or sales agreement for the alarm system with the result being the removal of the system completely by Possession Date. The Seller will take steps to repair any holes in the walls or other damages caused by the removal of the alarm system in a good workmanship manner to a paint-ready state. ALARM-2 Alarm System to be Kept but Not Monitored The Seller agrees, at the Seller s expense, to buy out or terminate the monitoring and/or sales agreement for the alarm system with the result that the alarm system is fully paid for, will become the property of the Buyer, and will remain intact and operational on Possession Date, but will not be monitored. ALARM-3 Buyer to Assume Monitoring Charges to Alarm System The Buyer agrees to assume monitoring charges on the existing alarm system contract in an amount not exceeding $ per month for a term of years terminating on. BUILDINGS/CONSTRUCTION BUILD/CONST-1 Condition Obtaining Building Permit This Offer is subject to the Buyer determining, at the Buyer s expense, that a building permit for the structure indicated on Schedule attached, is available with respect to the Property by, 20. 2

18 BUILD/CONST-2 Walk-Through Inspection Deficiency List Clause The Buyer and the Seller (or technical representative of the Seller) together will conduct a walk-through inspection of the Property no later than (number of days) before the Completion Date. Immediately after completion of the walk-through inspection, a deficiency list of mutually agreed upon items to be remedied by the Seller will be completed. The list will include a mutually agreed upon value of the deficiencies to be remedied. Both the Buyer and the Seller will sign, date, and retain a copy of the deficiency list. BUILD/CONST-3 Seller to Complete/Repair Deficiencies The Seller at his expense will complete and/or repair the items specified on the attached deficiencies list and valued at $. The list forms a part of this contract. The quality of workmanship and materials used will be equal to or better than that of the surrounding construction. The Buyer will hold back from the sale proceeds the amount specified in the deficiency list until all the deficiencies specified in the deficiency list are completed, and will place this holdback in the conveyancer s trust account. BUILD/CONST-4 Confirmation New Home Warranty The Seller confirms being registered with the Saskatchewan New Home Warranty Program, and that the building (or the building to be built) on the Property is (or will be) covered by the Warranty offered by that program. BUILD/CONST-5 Seller Warranty Against Structural Defects The Seller warrants the building against major structural defects (as defined herein) to a maximum of $(amount) for (number of years) year(s) from date of occupancy by the Buyer. Major structural defects means defects which adversely affect the load-bearing portion of the improvements. BUILD/CONST-6 Seller Warranty Work/Materials The Seller warrants the building against defects in quality of work and materials (as defined herein) to a maximum of $(amount) for (number of years) year(s) from the date of occupancy by the Buyers. Quality of work and materials means those incorporated into the construction by the Seller, its employees, and those trades and others contracted directly by the Seller. 3

19 CHATTELS, FIXTURES, AND EQUIPMENT CHATT-1 Fixtures/Chattels No Warranty The Seller and Buyer acknowledge that there is no express or implied warranty on the chattels included in this Offer to Purchase. CHATT-2 Equipment Good Working Order The Seller warrants that all mechanical, electrical, heating, ventilation, air conditioning systems, sprinkler systems, and all other equipment on the Property shall be in good working order on Possession Day. CHATT-3 Chattels Transfer to Buyer in Good Working Order The following chattels, as viewed by the Buyer on, are owned by the Seller and presently located on the Property. The Seller agrees to transfer to the Buyer, at closing, any warranties, which are transferable, relating to the chattels. Such chattels shall remain on the Property, be included in the purchase price, and shall be conveyed to the Buyer in good working order, free and clear of all encumbrances on Possession Date: NB List make, model, and serial number of each chattel. CONDOMINIUMS CONDO-1 Alterations/Changes to Unit During Interim Occupancy The Buyer covenants and agrees that no alterations will be made to the unit during the term of interim occupancy. Upon completion of the transaction, the Buyer agrees to abide by the Bylaws and Rules relating to alterations and changes within the unit. CONDO-2 Compliance by Buyer, Guests, and Family Members The Buyer hereby covenants with the Seller and with the Condominium Corporation that the Buyer, members of the household, and guests, will comply with The Condominium Property Act, 1993, the Bylaws, and all Rules and Regulations, in using the unit and the common elements, and will be subject to the same duties imposed by the above as those applicable to other individual unit owners. 4

20 CONDO-3 Tenant to Occupy Property The Buyer agrees to abide by the Bylaws, Rules and Regulations of the Condominium Corporation and, if the Property is to be rented, the Buyer agrees to inform all tenants of the Rules and Regulations and receive written acknowledgement of the tenants regarding their willingness to abide by same within the rental document. It is clearly understood that all rental agreements shall conform to the Rules and Regulations as passed from time to time by the Board of Directors of the Condominium Corporation. CONDO-4 Condominium Plan Not Registered/Contract Signed It is a fundamental term of this contract that a condominium plan for the Property, in the form shown to the Buyer at the time of the signing of this contract, be fully registered in the appropriate Land Title Registry by Completion Date, whereby the Condominium Corporation is created when the titles are issued for the units. CRIMINAL ACTIVITY CRIM-1 No Criminal Activity Warranty The Seller represents and warrants that during the time the Seller has owned the Property, the Property has not been used for any criminal use or activity, and that, to the best of the Seller s knowledge, the Property has never been used for any criminal use or activity. CRIM-2 Criminal Activity Acknowledgement The Buyer acknowledges that the Property has been used for criminal use or activity, and acknowledges that the Seller makes no representations and/or warranties with respect to the state of repair of the premises, and the Buyer accepts the Property in its present state, and in an as is condition. CRIM-3 No Growth or Manufacture of Illegal Substances Warranty The Seller represents and warrants that, during the time the Seller has owned the Property, the Property has not been used for growth or manufacture of any illegal substances, and that, to the best of the Seller s knowledge and belief, the Property has never been used for the growth or manufacture of illegal substances. This warranty shall survive and not merge on the completion of this transaction. 5

21 CRIM-4 Growth or Manufacture of Illegal Substances Acknowledgement The Buyer acknowledges that the Property may have been used for the growth or manufacture of illegal substances and acknowledges that the Seller makes no representations and/or warranties with respect to the state of repair of the premises and the Buyer accepts the Property in its present state and in an as is condition. CRIM-5 The Safer Communities and Neighbourhoods Act Warranty The Seller represents and warrants that no activities are being conducted in or about the Property which have resulted in, or which would, could, or might result in, a Community Safety Order being made under The Safer Communities and Neighbourhoods Act with respect to the Property. CRIM-6 The Safer Communities and Neighbourhoods Act Condition This Offer is conditional upon the Buyer determining within calendar days from the acceptance date of this Offer that there is no order under The Safer Communities and Neighbourhoods Act pertaining to the Property or any portion or portions thereof. Unless the Buyer gives notice in writing delivered to the Seller within calendar days from the acceptance date of this Offer that this condition is fulfilled, this Offer shall become null and void. CRIM-7 The Seizure of Criminal Property Act, 2009 The Seller represents and warrants that no activities are being conducted in or about the Property which have resulted in, or which would, could, or might result in, a Forfeiture Order being made under The Seizure of Criminal Property Act, DEPOSITS/PAYMENTS DEP/PAY-1 Deposit Trust Account Deposit to be placed in trust account within hours of acceptance of this Offer. DEP/PAY-2 Amount of Deposit Buyer to provide a deposit in the amount of $, by, 20. DEP/PAY-3 Conditional on Deposit This Offer is subject to the Buyer providing a deposit in the amount of $, by, 20. 6

22 DEP/PAY-4 No Deposit Provided If the Buyer fails to pay the deposit money as required by this contract, the Seller may, at the Seller s option, terminate this contract. DEP/PAY-5 Deposit Increase On Removal of Condition(s) The Buyer will increase the deposit to $ upon removal of financing condition(s). DEP/PAY-6 Deposit Increase Additional Payment The Buyer agrees to pay a further sum of ($ ) to the Listing Broker, by cheque, on or before the day of, 20, as a supplementary deposit to be held in trust pending completion or termination of this Offer to Purchase in the same manner and under the same terms and conditions as the original deposit. This amount is to be credited towards the purchase price on completion of this transaction. DEP/PAY-7 Deposit Interest Bearing This deposit is to be placed in an interest bearing account with the interest accruing to the benefit of the (Buyer/Seller). DEP/PAY-8 Conditional on Lawyer Approval/Holding of Deposit This Offer is subject to the (Buyer s/seller s) lawyer approving, by, 20, the arrangements for holding the deposit money in this transaction. DOCKS AND BOATHOUSES DOCKS-1 Condition This Offer is conditional upon the Buyer determining, at the Buyer s own expense, that the [boathouse, dock, pier, etc.] used in conjunction with the Property, and passing to the Buyer on completion, [has/have] received all necessary approvals and permits from all appropriate authorities having jurisdiction, to enable the Buyer to continue its use. Unless the Buyer gives notice in writing delivered to the Seller within calendar days from the acceptance date of this Offer that this condition has been fulfilled, this Offer shall become null and void. DOCKS-2 Seller Warranty The Seller represents and warrants to the best of his knowledge and belief that the [boathouse, dock, pier, etc.] used in conjunction with the Property, and passing to the Buyer on completion, [has/have] received all necessary approvals and permits from all appropriate authorities having jurisdiction. 7

23 ENVIRONMENTAL ENV-1 Agricultural Activities Acknowledgement The Buyer acknowledges that the Property lies within, partially within, adjacent to or within kilometres 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 intrusive operations that cause discomfort and inconveniences that involve, but are 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. ENV-2 Buyer Accepts Building/Property in Present Condition The Seller discloses and the Buyer acknowledges, that the Building/Property contains (describe condition) and the Buyer accepts the Building/Property in this condition. ENV-3 Seller s Remedy of Condition The Seller discloses that although (describe condition) was known to have been in/on the Building/Property, such (condition) to the best of his/her knowledge was removed/remedied on, 20. As proof of the removal/remedy, the Seller attaches the following documents: ENV-4 Non-existence of Condition The Seller discloses that the Building/Property was tested for (describe condition) on, 20, by (name of testing contractor/government authority). The results of the test indicated that no (describe condition) was present in/on the Building/Property. As proof of such testing, the Seller attaches the following documents: 8

24 ENV-5 Condition Acceptable Level The Seller discloses that the Building/Property was tested for (describe condition) on, 20, by (name of testing contractor/government authority). The results of such testing indicated that is acceptable and accordingly, no further action has been taken. As proof of such testing, the Seller attaches the following documents: ENV-6 Conditional on Site Inspection/Report This Offer is subject to the Buyer receiving and being satisfied with a site inspection and report from (inspecting body/expert tester/government authority), concerning (describe condition) by, 20. ENV-7 Condition Oil Tank Aboveground or Underground This Offer is subject to the Buyer obtaining a report stating that the tank system in, on or about the Property is in a safe operating condition and complies with the regulatory requirements of The Hazardous Substances and Waste Dangerous Goods Regulations under The Environmental Management and Protection Act, 2010, and any other applicable regulations by, 20. ENV-8 Underground Tank Seller Has Removed The Buyer acknowledges that there was an underground fuel tank on the Property that has been removed and the Seller agrees to provide to the Buyer at the Seller s expense by no later than, 20, evidence that the fuel oil tank has been removed, the soil surrounding the underground fuel oil tank has been assessed for contamination, cleaned and any contamination removed according to applicable regulatory regulations. ENV-9 Underground Tank Seller to Remove The Seller agrees, at the Seller s expense, to have the underground fuel oil tank on the Property removed from the Property by, 20, and thereafter to have the soil surrounding the underground fuel oil tank assessed for contamination and any contamination cleaned and removed according to applicable regulatory regulations, and to provide evidence of such. The grading and the landscaping on the Property to be restored to its original condition or comparable condition prior to the removal of the said fuel oil tank. 9

25 ENV-10 Satisfactory Soil Test This Offer is conditional upon the Buyer obtaining at the Buyer s own expense, soil tests verifying the Property is satisfactory to the Buyer for the construction of a on the Property. Unless the Buyer gives notice in writing delivered to the Seller within calendar days from the acceptance date of this Offer that this condition is fulfilled, this Offer shall be null and void. The Seller agrees to cooperate in providing access to the Property for the purpose of the soil tests. If the Buyer fails to provide a notice of fulfilment of the condition as provided above, the Buyer agrees to reasonably restore any alterations to the condition of the Property caused by the soil tests. ESTATE SALE EST-SAL-1 Conditional on Letters Probate/Consent This Offer is subject to the Seller receiving Letters Probate and either a consent to the sale by all beneficiaries or a court order approving the sale by, 20. GOODS AND SERVICES TAX CLAUSES (GST) GST-1 Conditional on Buyer/Seller Receiving and Approving GST Information This Offer is subject to the Buyer/Seller receiving and approving information or professional advice concerning his/her GST liability, GST exemptions, or GST rebates by, 20. GST-2 Buyer to Pay GST The Buyer confirms having received independent GST advice concerning the obligation to pay GST and will be responsible to pay any GST and apply for any new home rebate in connection with this transaction. GST-3 Seller to Pay GST/Buyer to Assign Rebate The Seller will pay any GST in connection with this transaction, and the Buyer will assign any new home rebate to the Seller. GST-4 Eligibility for GST Rebate The Buyer confirms that he or she is purchasing the Property for use as a principle residence and hereby is entitled to the GST New Housing Rebate. The Seller and Buyer agree that the purchase price includes GST based on the Buyer assigning the Rebate to the Seller, and that the price reflects the credit given by the Seller to the Buyer for this assignment. The Buyer agrees to sign the Rebate application and any other documents necessary to have the Rebate paid or credited to the Seller. 10

26 GST-5 GST Not Included The purchase price does not include GST. In the event that GST is payable and the Buyer is not a GST registrant, then the Buyer shall remit the applicable GST to the Seller s lawyer on or before completion date. GST-6 GST in Addition To If this transaction is subject to GST, then such GST shall be in addition to and not included in the purchase price, and GST shall be collected and remitted in accordance with applicable legislation. GST-7 Not Subject to GST The Seller warrants that this transaction is not subject to GST and agrees to provide on or before closing to the Buyer or Buyer s solicitor a certificate satisfactory to the Buyer or Buyer s solicitor certifying that the transaction is not subject to GST. GST-8 Buyer to Remit GST No GST shall be paid by the Buyer to the Seller on closing provided the Buyer shall provide a GST enrolment and undertake to self-assess and remit as required by the applicable legislation. INSPECTION OF PROPERTY INSP-1 Condition Inspection of Property by a Home Inspector This Offer is subject to 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 by, 20. INSP-2 Condition Inspection of Property by a Home Inspector - Condominium This Offer is subject to the inspection of the unit and common elements by a home inspector at the Buyer s expense, and the obtaining of a report satisfactory to the Buyer by, 20. INSP-3 Buyer Right of Re-Inspection The Buyer shall have the right to inspect the Property (specify number) further time(s) prior to completion, at a mutually agreed upon time, provided that prior notice is given to the Seller. The Seller agrees to provide access to the Property for the purpose of this inspection(s). 11

27 INSP-4 Inspection for Termites, Bedbugs, etc. This Offer is conditional upon the Buyer or his appointed representative inspecting the subject Property for termites or bedbugs and the obtaining of a report satisfactory to the Buyer at his own expense. Unless the Buyer gives notice in writing delivered to the Seller within calendar days from the acceptance date of this Offer that this condition is fulfilled, this Offer shall become null and void. The Seller agrees to cooperate in providing access to the Property for the purpose of this inspection. INSP-5 Right of Re-Inspection The Buyer shall have the right to inspect the Property one further time prior to possession, upon written notice given to the Seller. The inspection is to be at a mutually agreed-upon time. INSULATION INSUL-1 Seller Warrants No UFFI, Asbestos, Zonolite, or Vermiculite The Seller represents and warrants that the Property does not contain urea formaldehyde foam insulation, asbestos, Zonolite, or vermiculite insulation. This representation and warrant shall apply only to the state of the Property existing on completion of this transaction. INSUL-2 Present in Property The Seller discloses that the Property does contain urea formaldehyde foam insulation, asbestos, Zonolite, or vermiculite insulation and the Buyer acknowledges that the Seller has made this disclosure. The Buyer accepts the Property in that state and further acknowledges that the Seller does not represent or warrant the quality or quantity of the insulation or the quality of its installation. INSUL-3 Seller Has No Knowledge The Seller has no knowledge as to whether the Property has been insulated with urea formaldehyde foam insulation, asbestos, Zonolite, or vermiculite insulation and specifically makes no representation or warranty in that regard. INSURANCE INS-1 Buyer Obtaining Insurance This Offer is conditional on the Buyer obtaining approval for insurance, satisfactory to the Buyer, for the Property within calendar days from the acceptance date of this Offer. The Seller agrees to cooperate in providing access to the Property, if necessary, for any inspection of the Property required for the fulfilment of this condition. 12

28 INS-2 Warranty re Cancellation or Refusal to Issue Insurance Policy The Seller states that to the best of his/her knowledge that during his/her ownership of the Property, no insurer has cancelled fire insurance on the Property; and no insurer has refused to issue or renew an insurance policy on the Property. INS-3 Approval of Fire/Property Insurance This Offer is subject to the Buyer obtaining approval for fire/property insurance on the Property located at, satisfactory to the Buyer, by, 20. INS-4 Buyer Acknowledgement of Woodstove/Fireplace The Buyer acknowledges that the (woodstove/fireplace) installed on the Property may not be approved for legal use and may render any fire insurance void. INS-5 Conditional on Confirmation of Valid Insurance for Woodstove/Fireplace This Offer is subject to the Buyer obtaining confirmation from their insurance agent by, 20, that the installed on the Property will not void their fire insurance coverage. LAND RESTRICTIONS LAND-1 Crown Land Restrictions/Reservations The Seller hereby declares to the Buyer, and the Buyer acknowledges, understands, and accepts that this Property is subject to certain reservations of the Crown, specifically but not limited to the fact that the have been reserved. LAND-2 Hazard Land, Flood Plain, Environmentally Protected Area This Offer is conditional upon the Buyer determining, at his own expense, that no portion of the Property has been designated as an environmental hazard, flood plain, or an environmentally protected area. Unless the Buyer gives notice in writing delivered to the Seller within calendar days from the acceptance date of this Offer that this condition has been fulfilled, this Offer shall become null and void. LAND-3 Heritage Property The Parties hereto acknowledge that the Property is/may be designated as a heritage site and is subject to the provisions of The Heritage Property Act. 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. 13

29 LAND-4 Land Lease Buyer to Assume The Seller agrees to assign, and the Buyer agrees to assume, the existing land lease on the Property, with [insert name of Lessee], a copy of which is attached as Schedule. LAWYER/SOLICITOR APPROVAL LAW-1 Lawyer/Solicitor Approval This Offer is subject to the approval of the terms and conditions stated herein by the Buyer s (or Seller s) lawyer within calendar days from the acceptance of this Offer. Unless the Buyer (or Seller) gives notice in writing delivered to the Seller (or Buyer) within calendar days from the acceptance date of this Offer that this condition is fulfilled, this Offer shall become null and void. LAW-2 Expert Advice to be Obtained The Parties to this Offer to Purchase acknowledge that the real estate brokerage and its representatives so named in this Offer have recommended that they obtain advice from their legal counsel prior to signing this document. The parties further acknowledge that no information provided by the real estate brokerage or its representatives is to be construed as expert legal, tax, or environmental advice. MORTGAGES MORT-1 Arranging of New Mortgage This Offer is conditional upon the Buyer arranging, at his own expense, a new 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 both principal and interest, and to run for a term of not less than years. Unless the Buyer gives notice in writing delivered to the Seller within calendar days from the acceptance date of this Offer that this condition is fulfilled, this Offer shall become null and void. MORT-2 Conditional on New Mortgage with Existing Mortgagee This Offer is subject to the Buyer being able to refinance with the present Mortgagee, namely: and arrange by, 20, a first mortgage in the amount of $, year amortization, year term at %, principal and interest payments of approximately per month. 14

30 MORT-3 Discharge of Existing Mortgage Seller to Pay The Seller acknowledges that there may be a penalty to discharge the existing mortgage and agrees to pay any costs, expenses or penalties incurred in discharging the existing mortgage. MORT-4 Conditional on Assumption of Existing Mortgage (Mortgagee Approval) This Offer is subject to the Buyer being approved to assume the existing mortgage held by, by, 20, in the amount of $, year amortization, year term, ending, 20, at %, principal and interest payments of approximately $ per month. MORT-5 Assumption of Existing Mortgage (No Approval) The Buyer agrees to assume an existing mortgage held by, in the amount of $, year amortization, year term, ending, 20, at %, principal and interest payments of approximately $ per month. MORT-6 Conditional on Seller Take Back Mortgage This Offer is subject to the Seller taking back a mortgage by, 20, in the amount of, interest rate of % per annum, monthly payments of including principle and interest, and to run for a term of years from the date of completion of this transaction. MORT-7 Conditional on Legal Advice Agreement for Sale The Seller agrees to carry the remaining balance of $ by way of an Agreement for Sale at an interest rate of %, year amortization, year term, principle and interest payments of approximately $ per month. The parties agree to sign a formal Agreement for Sale. This Offer is subject to the Buyer and Seller receiving satisfactory legal advice with respect to the Agreement for Sale by, 20. MORT-8 Conditional on Legal Advice-Lease with Option to Purchase This Offer is subject to the parties negotiating and executing a formal agreement with the benefit of legal advice by, 20. MORT-9 Buyer to Bear Costs Agreement for Sale or Seller Take Back Mortgage The Buyer will bear the costs of drawing up the (Agreement for Sale or Seller s Take Back Mortgage), including legal costs. MORT-10 Buyer Credit Report This Offer is subject to the Seller being satisfied concerning the personal and/or credit worthiness of the Buyer by,

31 MORT-11 Payment In Advance The principle balance may be paid at any time, in whole or in part, without notice, bonus or penalty. MORT-12 Conditional on the Appraisal Equal Greater Purchase Price This Offer is subject to the Property at appraising at a value equal to, or greater than, the purchase price by, 20. MORT-13 Buyer Acknowledges Finder Fee Buyer acknowledges that the Buyer s Brokerage may receive a Finder s Fee in the amount of $ in connection with the arranging of financing for the Buyer. MORT-14 Conditional on Seller Taking Buyer s Property In Trade This Offer is subject to the Seller entering into an unconditional Contract of Purchase and Sale with the Buyer for the purchase of the Buyer s Property described as (describe Property) by, 20. MORT-15 Right to Demolish This Mortgage shall contain a clause providing that the 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 Mortgage, provided that such alteration or demolition shall comply with all applicable bylaws, building codes, or other applicable laws or regulations. NEW HOME WARRANTY PROGRAM NHWP-1 Saskatchewan New Home Warranty Program The Seller represents and warrants, to the best of the Seller s knowledge and belief, that the said home and its builder are both registered under the Saskatchewan New Home Warranty Program. Applicable documents are attached as Schedule and form part of this Offer to Purchase. NON-RESIDENT SELLER NONRES-1 Holdback for Non-resident Sellers The Seller confirms that the Seller is a non-resident of Canada within the meaning of the Income Tax Act (Canada) and that a portion of the sale proceeds as stipulated under the provisions of the Income Tax Act (Canada) shall be held back at closing until the Seller supplies the appropriate clearance certificate from the Canada Revenue Agency. 16

32 POSSESSION DATE POSS-1 Change of Possession Date by Buyer Notwithstanding the Possession Date set out in this Offer, the Buyer may advance (postpone) the Possession Date of this transaction by not more than days, by giving written notice of the amended Possession Date to the Seller or his solicitor at least days in advance of the earlier of the Possession Date set out herein and the amended Possession Date. POSS-2 Change of Possession Date by Seller Notwithstanding the Possession Date set out in this Offer, the Seller may advance (postpone) the Possession Date of this transaction by not more than days, by giving written notice of the amended Possession Date to the Buyer or his solicitor at least days in advance of the earlier of the Possession Date set out herein and the amended Possession Date. PROPERTY CONDITION DISCLOSURE STATEMENT PCDS-1 Seller to Provide a Property Condition Disclosure Statement This Offer is conditional upon the Seller completing a Property Condition Disclosure Statement in the prescribed form which is to be delivered to the Buyer within calendar days of the acceptance of this Offer and, upon delivery, the Buyer shall be permitted calendar days to consider any concerns that may arise from the disclosure. If the results are not satisfactory to the Buyer, the Buyer may terminate this Agreement and the deposit shall be returned to the Buyer in full without deduction or interest. PCDS-2 Property Condition Disclosure Statement to form Part of Offer The attached Property Condition Disclosure Statement completed by the Seller in the prescribed form and dated, 20, is incorporated into and forms part of this Offer to Purchase contract. REAL PROPERTY REPORT RPR-1 Seller to Provide Existing Real Property Report Seller to provide existing Real Property Report to the Buyer by, 20. RPR-2 Conditional on Seller to Provide New Real Property Report This Offer is subject to the Seller providing a new Real Property Report of the said Property by, 20 at the Seller s expense. 17

33 RPR-3 Buyer to Obtain Real Property Report The Buyer acknowledges that a new Real Property Report may be required for purposes of financing and agrees to obtain said report at the Buyer s expense. RELATIVE/ADVISOR/FINANCIAL APPROVAL APP-1 Conditional on Contract Approval This Offer is subject to approval of the contract by by, 20. APP-2 Conditional on Viewing by Third Party This Offer is subject to the viewing of the Property being satisfactory to, by, 20. APP-3 Conditional on Financial Advice This Offer is subject to receiving financial advice satisfactory to the Buyer/Seller by, 20. RENT/SALE OF PROPERTY NOTE: The following rental clauses have been developed for the sale of small rental properties (e.g., duplexes, 4-plexes, etc.). For large multi-unit complexes, special conditions apply and expert assistance should be sought. RENT-1 Confidentiality of Disclosed Rental Information The Buyer will hold in strict confidence any knowledge about the rent of the Property, financial documents, leases, and such other records of the Property which the Buyer obtains from this Agreement or any other source, subject only to the use of such information in order to obtain professional advice. RENT-2 Seller Warranty Tenancy Information The Seller warrants the Tenant is (tenant s name) who occupies (whole house, basement etc.); the monthly rent is $ (amount) including (e.g., utilities included); payable on (day of the month rent is due); a security deposit of $ was taken on, 20 and the last rental increase was on, 20. The Seller warrants that the tenancy is (month to month/a fixed term lease) ending,

34 RENT-3 Seller Warranty Tenancy Information The Seller represents and warrants, to the best of the Seller s knowledge and belief, that the current and actual rents are: Unit Current Rent Last Increase (Date/Amount) NOTE: Additional categories may be used to expand tenancy information: Unit #, Name, Date, Security Deposit Amount and Tenancy (items included in rent), etc. RENT-4 No Rent Increases Pending Completion of Sale Pending completion, the Seller shall not give any notices of rent increases to the tenants. RENT-5 Notices to Tenants of New Owner Upon completion, the Seller shall provide the Buyer with a notice to all tenants advising them of the new owner and requiring all future rents to be paid as the Buyer directs. The Seller will pay to the Buyer any rent paid to the Seller in error or in violation of the direction for a period of months following completion, after which period the Seller may refuse to accept rent from tenants or return it to them. RENT-6 Buyer Assumption of Existing Tenancy The Buyer agrees to assume the existing tenancies, as set out in the attached Schedule, which the Seller warrants are the only tenancies affecting the Property. RENT-7 Conditional on Seller as Tenant This Offer is subject to the Seller and Buyer entering into a tenancy agreement by, 20, for the Seller to occupy the premises as a tenant until, 20. RENT-8 Seller Notice to Tenant(s) The Seller will give legal notice to the tenant(s) to vacate the premises upon removal of all conditions by, 20. RENT-9 Conditional on Documentation/Legality of Suite This Offer is subject to the Buyer receiving and being satisfied with documentation provided from concerning the legality of the suite by,

35 RENT-10 Unauthorized Accommodation The Buyer is aware that the Property contains unauthorized accommodation and has been informed of the consequences of such ownership and the potential loss of income should the rental use be discontinued. RENT-11 Lease Agreement for Mobile Home in Mobile Home Park This Offer to Purchase is conditional upon the Buyer being able to enter into a lease agreement with, owner of mobile home park site on which the mobile home sits, satisfactory to the Buyer, by, 20. RENT-12 Presence of Pets on Property The Seller will be responsible for any repair or replacement cost due to the presence of any pets on the leased Property. The Seller further agrees that if pets are kept, the Seller shall, prior to Possession Date, have the carpets professionally cleaned and make any repairs that may be necessary to restore any damages caused by pets. ROAD ACCESS ACCESS-1 Conditional upon Road Access by Open Public Road This Offer is conditional upon the Buyer determining, at the Buyer s own expense, that access by automobile to the Property is by a public road which is maintained at public expense throughout the year. Unless the Buyer gives notice in writing delivered to the Seller within calendar days from the acceptance date of this Offer that this condition has been fulfilled, the Offer shall become null and void. ACCESS-2 Road Access Alternatives The Seller represents and warrants that, to the best of the Seller s knowledge and belief, the Property fronts on [choose appropriate statement] (a) a public road which is maintained on a year-round basis at public expense OR (b) a public road which is maintained on a seasonal basis at public expense OR (c) a public road which is not maintained at public expense. SALE OF BUYER S PROPERTY SBP-1 Conditional on Sale of Buyer s Property This Offer is subject to the sale of the Buyer s Property at by,

36 SBP-2 Conditional on Sale of Buyer s Property - Option Clause This Offer is subject to the sale of the Buyer s Property at by, 20, with a hour clause in effect. See attached Option Clause Form. SBP-3 Conditional on Sale of Buyer s Property/to be Listed - Option Clause This Offer is subject to the sale of the Buyer s Property at by, 20, which will be listed with the appropriate Multiple Listing Service by, 20, through (name of Brokerage), with a hour clause in effect. See attached Option Clause Form. SBP-4 Conditional on Completion of Sale of Buyer s Property This Offer is subject to the completion of sale of the Buyer s Property at, by, 20. SBP-5 Conditional on Seller s Release From Previous Offer to Purchase This Offer is subject to the Seller being released by the Buyer from all obligations under the previously accepted Contract of Purchase and Sale by, 20. SBP-6 Conditional on Seller Purchase This Offer is subject to the Seller purchasing a new home by, 20. SEWAGE SYSTEM/SEPTIC TANK SEW/SEP-1 Warranty Good Working Order The Seller represents and warrants, to the best of his knowledge and belief, that, during his occupancy of the dwelling, the onsite wastewater disposal system has operated satisfactorily and was installed according to the provisions of the health authorities having jurisdiction at the time of installation. Further, the Seller agrees to provide any and all documentation within his possession relating to this system to the Buyer by,

37 SEW/SEP-2 Condition Approvals and Good Working Order This Offer is conditional upon the Buyer determining, at the Buyer s own expense, that at the time of installation: (1) all onsite wastewater collection and disposal systems serving the Property are wholly within the setback requirements of the Property and have received all required certificates of installation and approval pursuant to The Environmental Management and Protection Act, 2010; (2) the said sewage systems serving the Property have been constructed in accordance with the said certificates of installation and approval; (3) the said sewage systems serving the Property have received all required use permits under the said Act or any other legislation; and (4) the said sewage systems serving the Property have been maintained in good working order during the Seller s occupancy and will be in good working order on Possession Date. Unless the Buyer gives notice in writing delivered to the Seller within calendar days from the acceptance date of this Offer that these conditions have been fulfilled, this Offer shall become null and void. SWIMMING POOLS SWIM-1 Seller Warrants Condition of Pool The Seller warrants that the swimming pool and equipment are now, and on the Completion Date shall be, in good working order. SWIM-2 Seller Warrants Legislative Compliance The Seller 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 bylaws, regulations and legislation. SWIM-3 Seller Responsible for Winterizing Pool The Seller agrees to winterize the swimming pool and equipment prior to completion and shall be responsible for any costs or expenses incurred by the Buyer if the swimming pool and equipment are not properly winterized provided that the Buyer gives written notice of claim to the Seller not later than, 20. TITLE TITLE-1 Buyer Acceptance of Information on Title The Buyer acknowledges and accepts that (easement, covenant, etc.) exists, and is aware that it may affect the Buyer s use of the Property. 22

38 WATER SUPPLY WATER-1 Water Supply Potability The Seller agrees to supply to the Buyer, on or before, 20 a certificate of potability from the local health authority having jurisdiction over the area stating that the water is safe for human consumption. WATER-2 Water Supply Buyer s Condition This Offer is conditional upon the Buyer determining at his own expense that: There is an adequate and potable water supply on the Property; The well is located on the Property and is capable of supplying a water volume of not less than gallons per minute at standing level; and The pump and all related equipment serving this Property are in proper operating condition. Unless the Buyer gives notice in writing delivered to the Seller within calendar days from the acceptance date of this Offer that this condition is fulfilled, this Offer shall become null and void. WATER-3 Water Supply Seller s Warranty The Seller represents and warrants, to the best of his knowledge and belief, that, during his occupancy of the Property, the pump and all related equipment serving the Property have performed adequately and that the well is capable of supplying a water volume of not less than gallons per minute at standing level. WATER-4 Water Supply Well Certificate The Seller shall provide to the Buyer a Well Certificate, prepared by a qualified well driller, attesting that the well is capable of supplying a water volume of not less than gallons per minute at standing level. Unless the Seller delivers this Well Certificate to the Buyer within calendar days from the acceptance date of this Offer, this Offer shall become null and void. ZONING ZON-1 Conditional on Buyer Confirmation of Zoning This Offer is subject to the Buyer confirming by, 20, that the zoning is (desired zoning). ZON-2 Conditional on Buyer Acquiring Zoning Changes This Offer is subject to the Buyer at his/her expense obtaining final approval of zoning change from (current zoning) to (desired zoning) by, 20. The Seller will co-operate with the Buyer in the zoning application process. 23

39 ZON-3 Zoning Warranty by the Seller The Seller warrants that the lands are zoned as under bylaw for the municipality of. 24

40 PART 2. COMMERCIAL CLAUSES AND PHRASES NOTE: Many of the clauses and phrases provided in Part 1 for residential properties may also be suitable for use for commercial properties. Remember that the clauses are precedent clauses only, and may need to be modified to address the circumstances for which they are intended to be used. APPROVAL COMM-1 Solicitor s Approval The Buyer shall have calendar days from the date of acceptance of this Offer to Purchase to obtain his solicitor s approval of this Offer, said approval to be in the solicitor s absolute discretion and, in the event that the Buyer s solicitor is not satisfied with the aforementioned, the Buyer may, at his option, treat this Offer to Purchase as at an end and require the deposit to be returned forthwith, together with all interest accumulated thereon. BUILDING LOCATION CERTIFICATE COMM-2 Building Location Certificate, Building Plans & Mechanical Drawings The Seller agrees to provide at the expense of the Seller, a Surveyor s Building Location Certificate of the Property, completed by a Saskatchewan Land Surveyor, showing the current location of all buildings, structures, additions, fences, improvements, easements, rights-of-way, and encroachments affecting the Property. The Seller also agrees to supply all building plans, mechanical drawings, and any other plans in his possession, and all warranties and service manuals, if available, applicable to any equipment or chattels included in the purchase price. FINANCIAL STATEMENTS COMM-3 Approval of Financial Statements by Buyer s Accountant This Offer is conditional on the Buyer s accountant approving the financial statements provided by the Seller within calendar days from the acceptance date of this Offer. The Seller warrants that the Financial Statements delivered to the Buyer are accurate and complete and were prepared in accordance with Generally Accepted Accounting Principles (GAAP). 25

41 COMM-4 Financial Statements Available but not Delivered to Buyer This Offer is conditional on the Buyer receiving, pursuing, and being satisfied with a complete and current set of financial statements, including an Income Statement showing revenue and expenses for the past 12 months and not more than 120 days old, a current Balance Sheet listing assets and liabilities, and a list of attached and unattached goods, rights, or other assets not included in this transaction within calendar days from the acceptance date of this Offer. The Seller warrants that the Financial Statements delivered to the Buyer are accurate and complete and were prepared in accordance with Generally Accepted Accounting Principles (GAAP). ENVIRONMENTAL COMM-5 Satisfactory Environmental Site Analysis This Offer to Purchase is conditional upon the Buyer obtaining at the Buyer s own expense, an environmental site analysis ( ESA ) verifying the land is satisfactory to the Buyer. Unless the Buyer gives notice in writing delivered to the Seller within calendar days of the acceptance date of this Offer that this condition is satisfied, this Offer to Purchase shall be null and void and the deposit shall be returned to the Buyer in full without deduction. The Seller agrees to cooperate in providing access to the land for the purposes of the ESA. If the Buyer fails to provide a notice of fulfilment of the condition as provided above, the Buyer agrees to reasonably restore any alterations to the condition of the Property caused by the ESA. INSPECTION OF PROPERTY COMM-6 Satisfactory Inspection The Seller shall, within calendar days from the date of acceptance of this Offer to Purchase hereof, provide the Buyer with any and all plans of the Property in the Seller s possession and the Buyer shall have calendar days from the date of acceptance of this Offer to Purchase hereof to evaluate the structural, mechanical, plumbing, and electrical soundness of the Property. Unless the Buyer gives notice to the Seller within calendar days from the acceptance date of this Offer that this condition is fulfilled, this Offer shall become null and void and the deposit shall be returned to the Buyer forthwith together with all interest accumulated thereon. 26

42 COMM-7 Right of Access to Property Upon acceptance of this Offer to Purchase and during any due diligence period when this Agreement remains subject to satisfactory inspection, the Buyer and/or the Buyer s authorized agents shall be allowed to enter the premises, from time to time, after obtaining permission from the Seller, for the purpose of any reasonable due diligence inspection. COMM-8 Inspection of Real Property This Offer to Purchase is conditional upon the Buyer inspecting and approving the Property. The Seller agrees to: (a) Allow the Buyer, its agents and employees, to inspect the land and improvements at mutually convenient time or times; and (b) Authorize all governmental and other authorities having jurisdiction over the Property to release to the Buyer all information such authorities have on file respecting the Property. Should the Buyer hire agents, consultants, or advisors, the cost and responsibility of such work shall be for the account of the Buyer. The Buyer covenants and agrees to restore the Property forthwith after inspection to its preexisting physical condition prior to the time of the first such inspection. If the Buyer is not satisfied with the results of its inspection, the Buyer shall so notify the Seller, who may elect to remedy such results. If the Seller does not remedy such results to the satisfaction of the Buyer, the Buyer may terminate this Offer to Purchase by notice in writing delivered to the Seller not later than p.m. on the day of, 20 and the deposit shall be returned to the Buyer in full without deduction. The Buyer agrees to treat the results of such inspection in a strictly confidential manner and not to disclose the results to a third party other than its accountants, lawyers, and other professional advisors except where required by law. There shall be no compulsory requirement to disclose the result to the Seller. MISCELLANEOUS PROPERTY CLAUSES COMM-9 Sale of Buyer s Property This Offer to Purchase is conditional upon the sale of the Buyer s property known as. Unless the Buyer gives notice in writing delivered to the Seller within calendar days from the acceptance date of this Offer that this condition is fulfilled, this Offer to Purchase shall be null and void and the deposit shall be returned to the Buyer in full without deduction. 27

43 COMM-10 Seller Permitted to Remain on Property The Seller shall be permitted the right to remain upon and continue the Seller s use of the Property at a cost of and for a period of after the Possession Date, provided that the Seller agrees to vacate the Property at the end of the period and provided that the Seller shall, during the period, maintain the lands and buildings in good repair and not permit waste upon the Property. The Seller shall pay taxes, insurance, and utilities during this period. The Buyer shall have free access to the lands during this period and reasonable access to the buildings. The Seller shall be permitted to remove all personal property from the Property either during this period or upon vacating the Property. These provisions, where applicable, shall not lapse or merge on completion of this transaction. COMM-11 Easement The Buyer agrees to accept title to the Property subject to an easement in favour of. COMM-12 Right of Way The Buyer agrees to accept title to the Property subject to a right of way in favour of. COMM-13 Encroachment The Buyer agrees to accept title to the Property subject to an encroachment in favour of. COMM-14 Party Wall Agreements The Buyer agrees to accept title to the Property subject a party wall agreement in favour of. COMM-15 Floors The Seller agrees to clean, repair, or replace any damaged floor covering in the sections of the building as indicated by the Buyer and more particularly as hereinafter set out: and permit the Buyer the right to inspect the premises to ensure that said cleaning, repairing, or replacing has been completed prior to Possession Date. COMM-16 Cleaning The Seller agrees to leave the premises, including the floors, in a clean and broom-swept condition. COMM-17 Parking Area The Seller agrees to remove all equipment, storage containers, and any other materials, including refuse and debris, from the Property and to leave the parking area in a clean and vacant condition. 28

44 COMM-18 Assessment Appeals To the best of the Seller s knowledge there is not now any property tax assessment appeal filed with the local property tax authorities. COMM-19 Local Improvement Levies The Seller warrants that the lands are free and clear of any local improvement levies and will be free and clear of local improvement levies on completion and that Seller has not received any notification of future local improvement levies for the Property. COMM-20 Non Merger The representations, warranties, conditions, understandings, and terms set forth in this Offer to Purchase shall survive the closing of the transaction of purchase and sale as herein provided, and shall continue in full force and effect. MORTGAGES COMM-21 Prepayment The Mortgage shall contain a clause permitting the Mortgagor, when not in default, the privilege of prepaying all or in part the principal sum outstanding at any time without notice or bonus. COMM-22 Renewal of Mortgage The Mortgage shall contain a clause permitting the Mortgagor, when not in default, the privilege of renewing this 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. COMM-23 Mortgagee Consent to Subdivide This Mortgage shall contain a clause permitting the Mortgagor to register a plan or plans of subdivision on the Mortgaged Lands and the Mortgagee agrees to cooperate with the Mortgagor and execute any required documents for the application and registration of any plan of subdivision, provided that the Mortgagor pays all costs for the application, requirements for approval, and registration of the plan of subdivision. COMM-24 Mortgagee Consent for Rezoning This Mortgage shall contain a clause requiring the Mortgagee, upon written notice, to execute applications and all other documents and consents required for the Mortgagor to amend the Development plan, if necessary, and to rezone the lands to a zoning suitable to the Mortgagor, or to amend any bylaws, and to support such application or applications for rezoning or amending of bylaws and to cooperate with the Mortgagor in all reasonable respects, provided that the Mortgagor pays all costs of said amendments or rezoning. 29

45 COMM-25 Mortgagee Consent to Dedication of Road This Mortgage shall contain a clause permitting the dedication of all roads and other lands required by municipal and provincial authorities on any proposed plan or plans of subdivision and providing for a discharge of such lands, as may be required for such purposes, from the Mortgage, without additional payment by the Mortgagor other than the normal legal costs of the Mortgagee. COMM-26 Mortgagee Consent to Granting of Easements This Mortgage shall contain a clause requiring the Mortgagee to postpone the Mortgage in favour of the granting of any easements to municipal or other governmental authorities or public utilities and services, required for the supply and/or installation of gas, telephone, electricity, water, sewer, railroad, or other similar services, without additional payment by the Mortgagor other than the normal legal costs of the Mortgagee. COMM-27 Mortgagee Consent for Registration in Land Titles This Mortgage shall contain a clause permitting the Mortgagor to apply to register the lands, or any part or parts, under The Land Titles Act, 2000, and the Mortgagee agrees to execute any and all documents required by the Mortgagor with respect thereto, provided that the Mortgagor pays all costs of said registration. COMM-28 Partial Mortgage Sale of Lots This Mortgage shall contain a clause permitting the partial discharge for individual lots on payment of the sum of ($ ) on account of principal, plus accrued interest to the date of payment, or such other amount of payment as mutually agreed-upon between Mortgagor and Mortgagee, for each lot to be discharged. RENTAL PROPERTY COMM-29 Supply Copy of Leases This Offer to Purchase is conditional upon the Buyer receiving a copy of, inspecting, and approving all real property Leases (or Offers to Lease if no Leases are available). The Seller agrees to supply to the Buyer within calendar days of the date of acceptance of this Offer with a copy of all Leases and/or Offers to Lease which are in force at the time of acceptance of this Offer to Purchase. 30

46 SERVICES AND EQUIPMENT COMM-30 All Equipment in Good Working Order The Seller warrants and represents that all the mechanical, electrical, heating, ventilation, air conditioning systems, air compressors, elevators, conveyor systems, sprinkler systems, boilers and all other equipment on the Property shall be in good working order on completion, reasonable wear and tear expected. COMM-31 No Representations or Warranties on Chattels The chattels and equipment are purchased on an as is basis and there is no warranty or representation as to the mechanical fitness of same. COMM-32 Machinery and Equipment The Seller agrees to remove, at the expense of the Seller, any machinery or equipment excluded from the sale prior to Possession Date, including mountings protruding from walls and floors, and to repair any damage caused by said removal. COMM-33 Seller to Repair The Seller agrees to repair at the expense of the Seller, prior to the Possession Date, any openings or holes in walls, floors, ceilings, or window areas resulting from the removal of equipment, as requested after discussion with the Buyer and more particularly as hereinafter set out: and permit the Buyer the right to inspect the premises to ensure that said repairs have been completed prior to Possession Date. COMM-34 Absence of Work Orders No alteration, repair, or improvement or other work has been ordered or directed to be done to or performed or in respect of the Property by a municipal, provincial, or other statutory authority, and no alteration, repair, improvement or work has been performed in respect of the Property within the last days thereto. Any such order or orders made prior to the Possession Date shall be complied with by the Seller as soon as is reasonably possible and any expense relating thereto shall be the responsibility of the Seller. COMM-35 Service Maintenance Contracts There are no outstanding or existing service, management, and/or caretaking contracts of any nature or kind with respect to the Property or any portion thereof which cannot be terminated without penalty on days notice given and that the Seller shall confirm same in writing to the Buyer. COMM-36 Additional Equipment The Seller agrees to give the Buyer the first right to negotiate for the purchase of any equipment to be sold by the Seller at a price to be mutually agreed upon. In the event that the parties cannot agree to a price at least days prior to the Possession Date, then said first right shall become null and void. 31

47 SOLICITOR COMM-37 Solicitor Clause On or before Possession Date, the Seller shall deliver or cause to be delivered to the Buyer s solicitor the following: (a) Evidence of payment of municipal realty taxes, business taxes, local improvement and assessment rates, hydro-electric charges, water rates, charges under maintenance or other contracts with respect to the operation of the building and all such other items as the parties hereto may mutually agree upon. All such matters shall be adjusted proportionately and allowed to the Possession Date, the day itself to be to the Buyer s account both as to income and expense. Fire and other insurance shall not be transferred or adjusted without the written consent of the Buyer. (b) Transfer of title to the Property in registerable form in favour of the Buyer and all title documents in his possession or under his control. (c) A proper bill of sale in respect of any chattel property purchased hereunder. (d) All tax, hydro electric, water, and other accounts apportioned. (e) All contracts, agreements, and warranties which the Seller may have in relation to the Property and proper assignments thereof. (f) An undertaking that all charges in relation to the operation of the building on the Property have been paid, will be paid, or have been properly allowed for. (g) Estoppel Certificates in a form satisfactory to the solicitor for the Buyer and/or its new Mortgagee in respect of the subsisting tenancies (if applicable). ZONING/SUBDIVISION COMM-38 Zoning The Seller warrants that the Property is zoned as under Bylaw for the municipality of. COMM-39 Zoning Satisfaction The Buyer shall have calendar days from the acceptance date of this Offer to be satisfied with the current zoning for the Property and to confirm there is no regulation or restriction which would prevent the Buyer from being able to use the Property for the purpose of. If the Buyer is not so satisfied with the current zoning, the Buyer may terminate this Offer to Purchase by notice in writing delivered to the Seller prior to the expiry of such period and the deposit shall be returned to the Buyer in full without deduction. 32

48 COMM-40 Conditional Upon Rezoning with Seller s Consent This Offer to Purchase is conditional upon the Buyer obtaining at the Buyer s expense, a rezoning a conditional use permit, and/or variance hereinafter called Rezoning of the Property to permit on the Property. Both Buyer and Seller agree to proceed in a diligent manner to obtain the Rezoning. Unless the Buyer gives notice in writing delivered to the Seller within calendar days from the acceptance date of this Offer that this condition has been fulfilled, this Offer shall become null and void and the deposit shall be returned to the Buyer in full without deduction. The Seller agrees, upon written notice, to execute applications and all other documents required for the Buyer to amend the applicable zoning bylaw and development plan, if necessary, and to rezone the lands to a zoning suitable to the Buyer, or to amend or vary any bylaws, and to support such application or applications for rezoning or amending or varying of bylaws, and to cooperate with the Buyer, in all reasonable respects, provided that the Buyer pays all costs of the Rezoning. COMM-41 Zoning The Seller agrees to cooperate with the Buyer in the application for and registration of any plan or plans of subdivision on the Property and the Seller agrees to execute any requisite documents for the application and registration of any plan of subdivision within calendar days from the acceptance date of this Offer, provided that the Buyer pays all costs for the application, all surveyor s costs, any and all dedication fees payable, requirements for approval, and registration of the plan of subdivision. COMM-42 No Site Plan Development Agreement The Seller warrants that the Property is not subject to any current Development Agreement. COMM-43 Conditional on Buyer Approval/Franchise Agreement This Offer is subject to the Buyer receiving, perusing and being satisfied with the franchise agreement by, 20. COMM-44 Conditional on Franchisor s Approval/Assignment of Franchise This Offer is subject to the Franchisor s written approval of the assignment of the franchise by,

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50 B. COMPLETION GUIDELINES FOR THE SEVEN MANDATORY FORMS 1. RESIDENTIAL CONTRACT OF PURCHASE AND SALE INTRODUCTION Writing offers requires learning to adapt the basic structure or formula to the circumstance at hand. The variables including Buyers, Sellers, conditions, terms, etc., are unique to each situation. The registrant must understand why certain clauses and phrases are utilized in particular situations and be able to interpret this terminology to the client or customer. In addition, the registrant must be able to explain the pre-printed portion of the contract to ensure that the client or customer understands the essence of the contract. The salesperson must remember that he or she is committing to writing the exact terms of the Buyer s intent and it must be expressed in clear, concise, unambiguous language. Section 58(1) of The Real Estate Act states that any offer to purchase property obtained by a registrant must be in writing, dated and signed by the Buyer in the presence of a witness. Section 58 also demands that all Residential Contracts of Purchase and Sale clearly show prior to the execution by the Buyer: the date on which the offer is made; the names and addresses of the Buyer and Seller; the street address or legal description of the real estate; the price offered by the Buyer and the terms and conditions of the offer; the amount of the deposit, if any, made at the time of the offer and whether or not that deposit is to form part of the price; a brief description and list of any chattels that are to be included in the price; 35

51 the date of possession by the Buyer and whether possession is to be vacant or otherwise; the date of adjustments; the time and date by which the offer is to be accepted; the name, address and telephone number of the Brokerage; and any other information prescribed in the bylaws. CONSIDERATIONS/INCLUSIONS a) Buyer i. Identification Ensure identification is accurate, and in the manner to appear on the title. Must meet FINTRAC requirements; e.g., required to keep an Identification Information Record for every real estate transaction you are involved in. ii. Deposit Explain to the Buyer that the deposit is generally held by the Buyer s Brokerage. If a further deposit is to be placed upon removal of any subject to conditions, it must be specified in the offer. If the Buyers expect to receive interest from this deposit, it must be stated as such. Must meet FINTRAC requirements; e.g., required to keep a Receipt of Funds Record on receipt of funds in any form or amount. iii. Possession Date Look at a calendar before inserting this date. If it occurs on a non-business day, the preceding business day becomes the appropriate date for money to change hands, etc. 36

52 iv. Fixtures/Chattels Do not rely on the listing agreement. Specify on the offer to purchase what fixtures/chattels are to be included. If appropriate, describe the chattels to ensure proper identification (serial numbers, etc.). v. Representation/Warranties Do not rely on any verbal representations and/or warranties. To be enforceable they must be included in the offer to purchase. Inform your Buyer of the existence and useage of the Ancillary Services in the Purchase of Residential Real Estate form which is a Commission mandatory form. b) Seller i. Registered Owners Ensure that the registered owners, as appearing on the title, are the Sellers actually involved in the transaction. The Sellers should be advised that their acceptance of the offer to purchase constitutes a binding agreement to sell the property. Must meet FINTRAC requirements (Identification Information Record required). ii. Counter Offer It is imperative to specify a time period for which the counter offer shall remain open for acceptance. iii. Possession Date Ensure this date is accurate. Consult a calendar for any holidays or weekends. iv. Deposit Advise the Sellers that the deposit is usually held by the Buyer s Brokerage unless otherwise specified. If the Sellers expect to receive interest from this deposit, it must be stated as such. 37

53 Must meet FINTRAC requirements (if deposit is held by the Seller s Brokerage). v. Legal Description of Property Ensure that the property is accurately described. vi. Fixtures/Chattels Ensure that all fixtures and chattels to remain are listed and included on the offer to purchase or counter offer. vii. Subject to Clauses Ensure that these clauses are as specific as possible and include a date of removal. viii. Maintenance The Sellers should be aware that they are obligated to maintain the property up to the closing date. Following is a sample of a completed Residential Contract of Purchase and Sale. 38

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57 2. COUNTER OFFER TO RESIDENTIAL CONTRACT OF PURCHASE AND SALE If the offer is not acceptable to the Seller they may elect to write a counter offer and thus keep the negotiating process in motion. The Seller will indicate on the counter offer any amendments, exceptions or additions that they desire to make to the contract. In effect, a Counter Offer to Residential Contract of Purchase and Sale is an offer from the Seller to the Buyer and as such, it is a new contract. There are no guarantees that the Buyer will accept the counter offer, and the Seller should be made aware of the risks of writing a counter offer for trivial reasons (i.e., the Seller may end up with no contract at all). The Seller must get back to the Buyer prior to the time allotted for the offer to be accepted otherwise the offer becomes null and void. As with the Residential Contract of Purchase and Sale, a counter offer can be revoked before acceptance has been communicated. Upon acceptance by the Buyer, the counter offer is appropriately signed and witnessed and the contract now consists of the original offer and the counter offer. If the counter offer is not accepted by the Buyer, but he or she wishes to continue the negotiating process, a new Residential Contract of Purchase and Sale is written and the process resumes. Do not counter a counter or revise the Seller s counter offer by crossing out, adding, and initialling the changes, write a new offer. Provided as follows is an example of a completed Counter Offer to Residential Contract of Purchase and Sale. 42

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59 3. NOTICE TO REMOVE CONDITION(S) ON RESIDENTIAL CONTRACT OF PURCHASE AND SALE Conditions or subject to clauses are utilized in contracts to protect the party who is writing the contract, be it the Buyer or Seller. The party that drafts the condition(s) is the party that must remove the condition, which is often based upon the approval or actions of a third party (e.g., a lending institution, a home inspection, etc.). The clause must be drafted in objective terms setting out exactly what events must occur and what criteria must be satisfied to remove the clause. To draft an objective subject to clause, registrants must determine the factors on which the Buyer will be basing the buying decision, and reduce those factors to writing within the clause. When removing conditions, re-state the conditions being removed on the notice to remove form so that the party is absolutely clear on what they are removing. Writing on the form all conditions are removed places the registrant at risk for liability if the party in the future states that he or she did not intend to remove all conditions and did not know specifically what conditions were being removed at the time the form was signed. The Supreme Court of Canada has ruled that if a Buyer wants to remove a condition upon the happening of the event that is out of control of the Buyer, the Buyer may not unilaterally remove the condition. Both parties must agree to a waiver, and in the event that they both do not agree, the contract is terminated. Therefore, under the circumstances where such a condition cannot be simply waived, and the Buyer wants to waive the condition, both the Buyer and the Seller must consent and sign the appropriate waiver. The Commission agrees that a party can only unilaterally remove a condition that is completely within the Seller s or Buyer s control to do so. Under no circumstances can a Seller or Buyer unilaterally waive a condition. If a 44

60 condition is to be waived, then an amendment to the offer to purchase must be completed by both the Seller and Buyer. Failure to notify the Seller of the removal of conditions will in most instances void the Contract, freeing up the Seller to sell his home to another Buyer. When more than one condition exists, and when each condition has a different expiry date, the registrant should fill out a number of different forms to remove conditions, by re-writing the condition as written on the original Residential Contract of Purchase and Sale. Do not add clauses that are vague or meaningless which may add liability to the registrant such as sale is now final. Provided as follows is an example of a completed Notice to Remove Condition(s) on Residential Contract of Purchase and Sale. 45

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62 4. SCHEDULE C (Specified Terms and Conditions for Contract of Purchase and Sale of a Resale Condominium Unit) When dealing with Buyers on a re-sale condominium, a Schedule C will be utilized. There are numerous clauses referring to Schedule C pre-printed on the mandatory form, the Residential Contract of Purchase and Sale. Under 2. CONDITIONS, the contract reads: 2.1 For resale Condominiums, the conditions set out in the attached Schedule C form part of this contract. While under 3. TERMS, the contract reads: 3.1 For resale Condominiums, the terms set out in the attached Schedule C form part of this contract. Under 6. WARRANTIES AND REPRESENTATIONS, the contract reads: 6.6 For resale Condominiums, the Seller warrants and agrees that on closing, the Seller shall provide to the Buyer, at the Seller s expense, documentation showing any material change in the Estoppel Certificate and/or Additional Items. Any particulars disclosed in the Estoppel Certificate and Additional Items shall be deemed to have been accepted and form part of the Contract of Purchase and Sale between the Buyer and the Seller. And under 7. REMEDIES/DISPUTES, the contract reads: 7.5 If substantial damage or change to the property occurs prior to the Completion Date, including any material change in the Estoppel Certificate and/or Additional Items for Condominiums, this contract shall be terminated and the deposit shall be forthwith returned to the Buyer, unless the damage is repaired and the change remedied, or otherwise agreed to by the Buyer and Seller in writing. 47

63 Schedule C asks the Seller to provide a variety of information including an Estoppel Certificate, financial statements, current reserve fund study, etc., as terms to the offer. The onus is on the Seller to provide to the Buyer the information contained within the Schedule C within the time allotted by the Buyer. Once the Schedule C information is received by the Buyer, the Buyer signs and dates the receipt of the information. The Buyer now has the time allotted by the Buyer s condition to review the information provided through Schedule C and to decide whether to accept or not to accept the Contract. If the condition is not removed, the deposit is returned to the Buyer. The following is an example of a completed Schedule C. 48

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65 5. DISCLOSURE OF INTEREST IN TRADE The rules under The Real Estate Act require this disclosure to be presented to a Buyer or Seller (as the case may be) before any agreement for the acquisition, disposition, rental or lease of real estate is entered into where the Seller, Landlord or Buyer is registered under the Act or where a registrant is providing services relating to a trade in real estate to or on behalf of a party to a trade in real estate who is an associate or an immediate family member. (See The Real Estate Act, Section 65, and Bylaw ) Therefore, if the registrant is selling or buying real estate, the Disclosure of Interest in Trade must be completed. The reason for this disclosure is because of the additional real estate knowledge that the registrant possesses as opposed to the general public. It would be an unfair advantage for the registrant if the public were not aware of the registrant s profession and inherent knowledge. In addition, if the registrant s spouse (or an associate) is buying or selling real estate, the spouse must complete the Disclosure of Interest in Trade as he or she is viewed as an associate of the registrant. Given that the spouse may be unaware of The Real Estate Act, the onus to ensure spousal disclosure is obviously on the registrant. Spouse is defined as a husband or wife, or as a person with whom the registrant cohabits or has children. In addition, there are disclosure requirements for registrants when they are trading in real estate with an immediate family member. Registrants are required to provide a Disclosure of Interest in Trade form to a Buyer or Seller, as the case may be, identifying the family member and the registrant s relationship to the immediate family member when acting for them in a real estate transaction. When a registrant is acting on behalf of an immediate family member in the purchase of real estate the disclosure must be made to the Seller prior to the Seller accepting an offer to purchase. When the registrant is acting on behalf of an immediate family member in the sale of real estate the disclosure must be made to the Buyer prior to the Seller receiving an offer to purchase. 50

66 The paraphrased definition of an immediate family member includes the spouse, parents, children, brother(s) or sister(s) of the registrant. The definition includes individuals who have been adopted. The definitions of spouse includes persons who are married or persons who are in a common law relationship and have cohabited for a period of not less than two years (see Commission Bylaw 103.1). The disclosure of the special relationship between the registrant and the Buyer or Seller provides the other party to the transaction with the knowledge of the relationship and allows the other party to the transaction to determine if they require additional input from independent sources. The disclosure of the relationship should act as a risk reduction measure for the registrant and for the brokerage. There are several sections to the Disclosure of Interest in Trade; ensure that the proper sections are completed. Following are examples of a completed Disclosure of Interest in Trade form for both the acquisition and disposition of property. 51

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71 6. ANCILLARY SERVICES IN THE PURCHASE OF RESIDENTIAL REAL ESTATE The Commission has provided the mandatory form, Ancillary Services in the Purchase of Residential Real Estate, to be used for residential properties (4 units or less). This form provides the Buyer with the opportunity to choose what services he or she may require to complete their purchase. It is imperative that the Buyer be provided with the information regarding potential services to allow for an informed decision as to what services are required. Services that may be required by the Buyer include those provided by: engineers, home inspectors, electrical/mechanical inspectors, gas-line inspectors, water quality/quantity inspectors, etc. In many situations, the services chosen by the Buyer could be written up as conditions subject to the Buyer s approval by a specific date, e.g.: This Offer is subject to 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 by, 20. Even if the Buyer chooses not to request any additional services to be completed, the form must be presented, signed (witnessed) and dated to prove that he or she has had the opportunity to choose additional services. Following is an example of a completed Ancillary Services in the Purchase of Residential Real Estate form. 56

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73 7. AMENDMENT TO RESIDENTIAL CONTRACT OF PURCHASE AND SALE Occasionally, the Seller and Buyer will want to change some item on the Residential Contract of Purchase and Sale after it has been accepted. The Commission has provided a mandatory form for registrants called the Amendment to Residential Contract of Purchase and Sale. An amendment to the Offer to purchase may be something such as: Possession date to be moved from June 19, 20XX to June 26, 20XX. Both parties, the Buyer and Seller, must agree to the changes in the amendment, sign the form and have their signatures duly witnessed. Both the Buyer and Seller must be provided with a copy of the form. Following as an example, is a completed Amendment to Residential Contract of Purchase and Sale. 58

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75 ASSOCIATION OF SASKATCHEWAN REALTORS 2811 Estey Drive Saskatoon, SK S7J 2V8 Phone: Toll Free: FAX: Website: 60