s. 3.1 (j) - (m) - Contract Changes, Independent Advice, and Conveyancing
The rest of s. 3.1 is rather self-explanatory:
3.1 (j) contract changes that are agreed to in writing will supersede the pre-printed clauses;
This clause helps the seller and buyer to save time and avoid confusion if they modify the content of the contract or add an additional term in s. 9.2.
3.1 (k) the seller and buyer will read this contract and seek relevant advice before signing it;
Not sure what this clause covers that is not already covered under clauses 3.1 (g) and 3.1 (i) (previously covered here and here). However, it is almost certain that in light of all these clauses, it would be very difficult, if not impossible, for a buyer/seller to raise an argument of “lack of professional advice.”
3.1 (l) the brokerages, real estate board and listing services may keep and disclose relevant information about this transaction for reporting, statistical, property evaluation and closing purposes; and,
One cannot help but wonder about the enforceability of such a clause in this Contract. The clause is for the “benefit” of the real estate board and “listing services” and yet it is stipulated in a contract to which neither of these entities are a party. Moreover, does this mean that if a buyer and seller agree to cross off this clause and initial the changes, they are disallowing the transaction to be included in “real estate board” and “listing services” data collection? Regardless of the intent, we recommend the parties to take note of this clause and be aware of the public nature of their transaction.
3.1 (m) the_______________ brokerage will provide this contract and related documents to the appointed lawyers for the purpose of closing this contract.
Another clause that may or may not be enforceable. We believe that the purpose of these last two clauses (l) and (m) is informational only and may have no other force and effect on the transaction in hand. Otherwise, what would happen if the “seller’s brokerage” (which is usually the brokerage responsible for provision of these documents) fails to send conveyancing documents to the buyer/seller’s lawyer. What if the documents get sent but get sent late and cause a delay in the closing? What if one party (buyer or seller) suffers damages as a result of such delay or failure to convey? Does any party have any claim against the brokerage? After all, the agreement is between the buyer and the seller and they are binding a 3rd party (e.g. Seller’s brokerage) to the contract. Is such a clause enforceable? What is the scope (if any)?
We recommend the buyers and sellers (and their respective realtors) to send the purchase documents to their respective lawyers no later than when the conditions are removed and the contract is finalized. This way if the Seller’s brokerage delays in sending documents to the buyers for whatever reason, the lawyers can still work on the file to avoid closing issues.