Clauses

CAUTION: When assisting with the preparation of a Contract of Purchase and Sale, Real Estate Professionals should exercise caution. Only qualified lawyers in British Columbia are able to provide legal advice.

Looking for a clause to include in a Contract of Purchase and Sale? We organized all clauses into categories and listed them on the table of contents to make it easier for you to locate the clause you need.

When incorporating these clauses into a Contract of Purchase and Sale and reviewing the various considerations associated with each, Real Estate Professionals should ensure that they:

• advise their client to obtain legal advice as applicable;
• use their professional judgment in applying clauses and information to particular situations, and ensure that they are not engaging in the provision of legal advice;
• consider who they are acting for before advising the applicable party which clause is appropriate;
• speak to their managing broker and seek legal advice if they are not sure about the language in a clause or whether it is appropriate; and
• be mindful of confidentiality requirements.

The clauses and considerations in this section are for educational purposes and are not mandatory. The legal appropriateness of the clauses are fact dependent and subject to change as the relevant law changes. The clauses and considerations do not constitute legal or other professional advice. Real Estate Professionals are responsible for exercising their own professional judgement in applying clauses and information to particular situations. When reviewing or using these clauses, or the associated considerations, Real Estate Professionals should keep in mind a number of considerations, including those listed above, that may be relevant to the use or wording of a clause or a modification of the clause. Contact one of our Practice Standards Advisors for further guidance. Real Estate Professionals are advised to recommend to their clients that legal advice is obtained in respect of any clauses that require the exercise of judgement. The exercise of judgment in applying or modifying any of the clauses contained in this section may constitute legal advice, the provision of which is regulated in British Columbia.

Assignment

• Assignment to additional named buyer (partial assignment)

  Notwithstanding section 20A of this Contract, the Buyer may, without the further consent of the Seller, assign the Buyer’s rights in this Contract to the Buyer and to [insert name(s) of specific person(s)] prior to completion, and the Seller agrees to sign completion documents as are necessary to reflect such assignment. Notwithstanding the foregoing: (i) the Buyer shall not be permitted to assign this contract to any individual, person or entity that would result in a breach of the Prohibition on the Purchase of Residential Property by Non-Canadians Act (Canada), and (ii) the Seller shall be entitled to any profit accruing to the Buyer as a result of any assignment of this Contract by the Buyer aforesaid.

  Optional — The Buyer hereby fully indemnifies the Seller from and against any losses, costs, damages, or expenses that the Seller may suffer or incur as a result of any assignment of this Contract by the Buyer.
  
  Considerations
  
  This allows the original Buyer to partially assign the Contract without consent by the Seller, but the original Buyer remains liable for all obligations under the Contract.

  Given the potential liabilities and penalties associated with a sale of property in contravention of the Prohibition on the Purchase of Residential Property by Non-Canadians Act (Canada), if acting for the Seller then consider the due diligence necessary to confirm whether the assignment in question will result in a contravention of that legislation. If the Seller has reason to suspect that the assignment and sale may result in a contravention of that legislation, then it should seek independent legal advice on the subject.

  Real Estate Professionals will need to (i) ascertain whether the Buyer and assignee will take title to the Property as joint tenants or tenants in common, and (ii) prepare an assignment agreement to evidence the partial assignment, which the Seller, Buyer and assignee should all be parties to, and which may be in the standard form of assignment agreement.

  If the parties do not wish to have the profit accruing on the assignment forfeited to the Seller, then that portion of the proposed clause should be struck, along with Section 20A(B) of the Contract. If that portion of the clause is struck, Real Estate Professionals must provide notice of the absence of those provisions in accordance with section 8.2 of the Real Estate Services Regulation.

  If acting for the Seller, consider whether an indemnity from the Buyer is required or desirable, and, if so, include the proposed indemnity language.

  The proposed clause does not address assignments of pre-sale contracts, and the Buyer should be strongly advised to seek independent legal advice in this regard. For further information, see BCFSA’s Presales Information and Presales Guidelines.

• Assignment without consent of Seller

  The Buyer may assign this Contract without further notice to or consent from the Seller, provided that: (i) the Buyer will not be permitted to assign this Contract to any individual, person or entity that would result in a breach of the Prohibition on the Purchase of Residential Property by Non-Canadians Act (Canada); and (ii) the Seller will be entitled to any profit accruing to the Buyer as a result of any assignment of this Contract by the Buyer as aforesaid, and (iii) no assignment will relieve the Buyer from liability under this Contract.

  Optional — The Buyer hereby fully indemnifies the Seller from and against any losses, costs, damages, or expenses that the Seller may suffer or incur as a result of any assignment of this Contract by the Buyer.

  Considerations

  This clause contemplates a full (rather than partial) assignment of the Contract from the Buyer to an assignee.

  If using this clause, Section 20A of the Contract should be struck from the Contract.

  Given the potential liabilities and penalties associated with a sale of property in contravention of the Prohibition on the Purchase of Residential Property by Non-Canadians Act (Canada), if acting for the Seller then consider the due diligence necessary to confirm whether the assignment in question will result in a contravention of that legislation. If the Seller has reason to suspect that the assignment and sale may result in a contravention of that legislation, then it should seek independent legal advice.

  The Real Estate Professional should prepare an assignment agreement to evidence the assignment, which the Seller, Buyer and assignee should all be parties to, and which may be in the standard form of assignment agreement.

  If the parties do not wish to have the profit accruing on the assignment forfeited to the Seller, then that portion of the proposed clause should be struck, along with Section 20A(B) of the Contract. If that portion of the clause is struck, Real Estate Professionals must provide notice of the absence of those provisions in accordance with section 8.2 of the Real Estate Services Regulation.

  If acting for the Seller, consider whether an indemnity from the Buyer is required or desirable, and, if so, include the proposed indemnity language.

  The proposed clause does not address assignments of pre-sale contracts, and the Buyer should be strongly advised to seek independent legal advice in this regard.

  For further information, see BCFSA’s Presales Information and Presales Guidelines.

  For further information, see BCFSA’s Assignments Information and Assignments Guidelines

• Indemnity on assignment

  The Buyer hereby fully indemnifies the Seller from and against any losses, costs, damages, or expenses that the Seller may suffer or incur as a result of any assignment of this Contract by the Buyer.

  Considerations

  Consider whether an indemnity from the Buyer is required or desirable in the case of an assignment, and, if so, include the proposed indemnity language.

  For further information, see BCFSA’s Assignments Information and Assignments Guidelines.

Back Up Offer

• Back up offer 

  Subject to the Seller, on or before [date], ceasing to be obligated in any way under the contract of purchase and sale dated [date] (the “Sale Contract”) respecting the Property, including the Seller obtaining a full release from the buyer(s) under the Sale Contract, all in the Seller’s sole discretion. This condition is for the sole benefit of the Seller.

  Optional – The Seller agrees not to amend the Sale Contract.
  
  Considerations

  This creates a conditional offer dependent on the Seller being released from a previous contract by a specific date.

  The Seller should be strongly advised to seek independent legal advice when considering any back-up offers.

Deposits

• Deposit payable within specified period

  Option 1

  The Deposit is payable within [number of hours, days or business days] of acceptance of this offer.

  Option 2

  The Deposit is payable within [number of hours, days or business days] after waiver or fulfillment of all of the subject conditions in favour of the Buyer and/or Seller (if any) set out in Section 3 of this Contract

  Considerations
  This clause would be used in section 2 of the Contract.

  For further information, see BCFSA’s Deposits Information and Deposits Guidelines.
  

• Deposit to bear interest

  The Deposit will be invested in an interest-bearing trust account with interest accruing to the benefit of [select either Seller or Buyer].

  Considerations
  Note that there are fees associated with investment of the Deposit.

  This clause is not recommended unless the market conditions support interest payments and the time for which the Deposit is held is long enough for substantive interest to accrue.

  For further information see BCFSA’s Deposits Information and Deposits Guidelines.

• Deposit increase on subject removal

  Upon the waiver or fulfillment of all of the subject conditions in favour of the Buyer and/or Seller (if any) set out in Section 3 of this Contract, the Deposit will be increased to [amount], which amount will be held on all the same terms and conditions as set out in Section 2.

  Considerations
  This clause allows the deposit amount to increase after all the conditions are fulfilled.

  For further information see BCFSA’s Deposits Information and Deposits Guidelines.

• Deposit held by third party

  The Deposit will be held by [name of third party], in trust and not on behalf of any of the principals to the transaction, pending completion of the transaction.
  
  Considerations
  If the Deposit is to be held by a third-party other than the brokerage acting on the transaction, then it is unlikely that such third-party would be bound by the provisions of the Real Estate Services Act, including the stakeholder provisions thereof. The Buyer and the Seller should be advised of the risk associated with this.

  If the Deposit is to be held by a solicitor, the Real Estate Professional should reach out to the solicitor involved to ensure that the solicitor provides the required clause in respect of the Deposit and provides the legal advice required.

  For further information, see BCFSA’s Deposits Information and Deposits Guidelines.

Disclosure

• Buyer approving Property Disclosure Statement

  Subject to the Buyer obtaining and being satisfied, in its sole discretion, with the contents of a Property Disclosure Statement prepared by the Seller with respect to the Property on or before [date]. This condition is for the sole benefit of the Buyer. If this condition is waived by the Buyer, the Property Disclosure Statement will be incorporated into and form part of this Contract.

  Considerations

  For further information, see BCFSA’s Disclosure Information and Disclosure Guidelines.

  If the Buyer elects to waive this condition, it means that the Buyer has accepted that it has received a Property Disclosure Statement and accepted the contents of that Property Disclosure Statement. However, as the Buyer has sole discretion as to whether to waive this condition, it is possible that the Buyer could elect to waive the condition even without (i) receiving a Property Disclosure Statement from the Seller, or (ii) being satisfied with the contents of any Property Disclosure Statement that was provided. If the Buyer elects to waive this condition without having received a Property Disclosure Statement, or without being satisfied with the contents of any Property Disclosure Statement that was provided, then it may wish to seek an amendment to the Contract to expressly state either that a Property Disclosure Statement was not provided, or that the Property Disclosure Statement that was provided by the Seller is not incorporated into the Contract (as applicable). In any event, Buyers should be made aware of the potential liability that they may incur as a result of waiving this condition notwithstanding that a Property Disclosure Statement may not have been provided, or may not have been satisfactory to the Buyer. In these cases, Buyers should be recommended to seek legal advice.

• Buyer acknowledgement regarding disclosure of material latent defect

  The Buyer acknowledges having received a Seller’s separate disclosure of material latent defects dated [date] relating to [general reference to issue].

  Considerations
  When the Property has a known or suspected material latent defect, specific disclosure clauses become important to create clear documentation that the Buyer has specific disclosure of the issue. It is important to be specific and include all applicable documentation when disclosing such condition.

  Both the Seller and the Buyer should be advised of the potential liability associated with such disclosure and condition and be strongly encouraged to seek independent legal advice.

  The Buyer should be strongly encouraged to seek expert consultants to review any disclosure documents and to conduct its own due diligence testing to confirm the liability involved.

  For further information on disclosures, see BCFSA’s Disclosure Information and Disclosure Guidelines.

  For further information on material latent defects, see BCFSA’s Material Latent Defects Information and Material Latent Defects Guidelines.

• Growth or manufacture of illegal substances – non strata

  The Buyer acknowledges that the Property may have been used to grow cannabis (other than as permitted by law) or for the growth or manufacture of illegal substances, and that the Seller makes no representations or warranties with respect to the state of repair of the Property in such respect.

  Optional — The Buyer accepts the Property in its present state, and in an “as is” condition.

  Considerations
  The Buyer should be advised of the risks in making this acknowledgement.

  Depending on the transaction, the parties may agree that the sale of the Property will be on an as-is basis, in which case the optional language may be included.

  For further information, see BCFSA’s Disclosure Information and Disclosure Guidelines.

  For further information, see BCFSA’s Cannabis (Residential) Information and Cannabis (Residential) Guidelines.

• Growth or manufacture of illegal substances — strata

  The Buyer acknowledges that the Property and the limited common property associated with the Property may have been used to grow cannabis (other than as permitted by law) or for the growth or manufacture of illegal substances, and that the Seller makes no representations or warranties with respect to the state of repair of the Property or the limited common property associated with the Property.

  Optional — The Buyer accepts the strata lot and limited common property in their present state, and in an “as is” condition.

  Considerations
  The Buyer should be advised of the risks in making this acknowledgement.

  Depending on the transaction, the parties may agree that the sale of the Property will be on an as-is basis, in which case the optional language may be included.

  For further information on disclosures, see BCFSA’s Disclosure Information and Disclosure Guidelines.

  For further information on cannabis, see BCFSA’s Cannabis (Residential) Information and Cannabis (Residential) Guidelines.

• Seller representation – no growth or manufacture of illegal substances – non strata

  The Seller represents and warrants that, during the time the Seller has owned the Property, the Property (including all buildings and structures thereon) has not been used for the growth of cannabis or manufacture of any illegal substances. This representation and warranty shall survive indefinitely and not merge on the completion of this transaction.

  Considerations
  Notwithstanding the inclusion of this provision in the Contract, the Buyer may wish to conduct its own due diligence in order to determine whether the Property was used for the growth or manufacture of cannabis or illegal substances, given the potential liability associated with the same.

  For further information on disclosures, see BCFSA’s Disclosure Information and Disclosure Guidelines. 

  For further information on cannabis, see BCFSA’s Cannabis (Residential) Information and Cannabis (Residential) Guidelines. 

• Seller representation – no growth or manufacture of illegal substances – strata

  The Seller represents and warrants that, during the time the Seller has owned the Property, the Property (including all buildings and structures thereon) has not been used for the growth of cannabis or manufacture of any illegal substances. This representation and warranty shall survive indefinitely and not merge on the completion of this transaction.

  Considerations
  Notwithstanding the inclusion of this provision in the Contract, the Buyer may wish to conduct its own due diligence in order to determine whether the Property was used for the growth or manufacture of cannabis or illegal substances, given the potential liability associated with the same.

  For further information on disclosures, see BCFSA’s Disclosure Information and Disclosure Guidelines.

  For further information on cannabis, see BCFSA’s Cannabis (Residential) Information and Cannabis (Residential) Guidelines.

• Possible health, safety or environmental condition

  The Seller discloses that the Property contains or has contained [describe condition] and the Buyer accepts the Property in this condition.
  
  Considerations
  When the Property has known or suspected health, safety or environmental contamination, specific disclosure clauses become important to create clear documentation that the Buyer has specific disclosure of the issue. It is important to be specific and include all applicable documentation when disclosing such condition.

  Both the Seller and the Buyer should be advised of the potential liability associated with known or suspected health, safety or environmental contamination and be strongly encouraged to seek independent legal advice.

  The Buyer should be strongly encouraged to seek expert consultants to review any disclosure documents and to conduct its own due diligence testing to confirm the liability involved.

  For further information, see BCFSA’s Disclosure Information and Disclosure Guidelines.

  
  

• Property Disclosure Statement forms part of Contract

  The attached Property Disclosure Statement dated [date] is incorporated into and forms part of this Contract.

  Considerations
  For further information, see BCFSA’s Disclosure Information and Disclosure Guidelines.

• Seller disclosure condition tested

  The Seller discloses that the Property was tested for [describe condition], on [date] by [name of testing contractor or government authority].

  The results of the test indicated that no [describe condition] was present in or on the Property. As evidence of that testing, the Seller attaches the following documents:

  [List]

  Optional — The Buyer accepts the condition of the Property in reliance on these documents.

  Considerations
  When the Property was tested for a particular condition, specific disclosure clauses become important to create clear documentation that the Buyer has specific disclosure of the issue. It is important to be specific and include all applicable documentation when disclosing such condition.

  Both the Seller and the Buyer should be advised of the potential liability associated with such disclosure and condition and be strongly encouraged to seek independent legal advice.

  The Buyer should be strongly encouraged to seek expert consultants to review any disclosure documents and to conduct its own due diligence testing to confirm the results.

  For further information, see BCFSA’s Disclosure Information and Disclosure Guidelines.

• Seller disclosure condition removed

  The Seller discloses that, although [describe condition] was known to have been in or on the Property, such [describe condition], to the best of the Seller’s knowledge, was removed or remedied on [date]. As evidence of the removal or remedy, the Seller attaches the following documents:

  [List]

  Optional — The Buyer accepts the condition of the Property in reliance on these documents.

  Considerations
  If a known condition has been remediated, then it is important to be specific and include all applicable documentation when disclosing such condition.

  Both the Seller and the Buyer should be advised of the potential liability associated with such disclosure and be strongly encouraged to seek independent legal advice.

  If acting for a Seller, consider modifying the language to remove “to the best of”, as it imposes a high standard on the Seller.

  The Buyer should be strongly encouraged to seek expert consultants to review any disclosure documents and to conduct its own due diligence testing to confirm the issue has been remediated.

  For further information, see BCFSA’s Disclosure Information and Disclosure Guidelines.

• Seller disclosure corrective measures taken

  The Seller discloses that the Property did have [describe condition] but has undergone the following corrective measures:

  [List]

  Optional — The Buyer accepts the condition of the Property in reliance on these corrective measures.

  Considerations
  If a known condition has been remediated, then it is important to be specific and include all applicable documentation when disclosing such condition.

  Both the Seller and the Buyer should be advised of the potential liability associated with such disclosure and be strongly encouraged to seek independent legal advice.

  The Buyer should be strongly encouraged to seek expert consultants to review any disclosure documents and to conduct its own due diligence testing to confirm the corrective measures.

  For further information, see BCFSA’s Disclosure Information and Disclosure Guidelines.

• Seller disclosure testing results acceptable

  The Seller discloses that the Property was tested for [describe condition] on [date] by [name of testing contractor or government authority].

  The results for such testing indicated that [describe condition] is acceptable and, accordingly, no further action has been taken.

  Optional — The Buyer accepts the condition of the Property in reliance on this testing.

  Considerations
  If a known condition has been remediated, then it is important to be specific and include all applicable documentation when disclosing such condition.

  Both the Seller and the Buyer should be advised of the potential liability associated with such disclosure and be strongly encouraged to seek independent legal advice.

  The Buyer should be strongly encouraged to seek expert consultants to review any disclosure documents and to conduct its own due diligence testing to confirm the results.

  For further information, see BCFSA’s Disclosure Information and Disclosure Guidelines.

• Seller warranty regarding condition

  The Seller represents and warrants that, to the best of the Seller’s knowledge, the Property does not have [describe condition].

  Considerations
  If acting for a Seller, consider modifying the language to remove “to the best of”, is it imposes a high standard on the Seller.

• Seller warranty regarding outstanding work orders

  The Seller represents and warrants that there are no outstanding work, fire, safety or health orders against the Property with any city, municipality or applicable government authority.

  Considerations
  For further information, see BCFSA’s Disclosure Information and Disclosure Guidelines.

• As-Is, Where-Is 

  Notwithstanding anything in this Contract to the contrary, the Buyer acknowledges and agrees that the Property is being purchased on a completely “as-is, where-is” basis and at the Buyer’s own risk and peril and without any express or implied agreement, representation or warranty from the Seller of any kind, legal or conventional, including with respect to such matters as title, condition, area, square footage, physical characteristics, zoning, use, compliance with municipal bylaws, the existence of any latent defects or any environmental matters.
  
  Considerations
  This clause may be used where the Property is being sold on a completely as-is, where-is basis. If the Seller has provided (or will provide) the Buyer with any information, material or documents regarding the Property, then consider including the optional language under “Buyer responsible for verification of the disclosed information” regarding the Buyer’s responsibility for independently verifying the same.

  When including the “As-Is, Where-Is” clause in the Contract, a Seller is advised not to provide any form of a Property Disclosure Statement (including, without limitation, a “struck through” version).

  For further information, see BCFSA’s Disclosure Information and Disclosure Guidelines.

• Buyer responsible for verification of the disclosed information 

  The Buyer acknowledges that the Seller makes no representation or warranty, express or implied, as to the accuracy or completeness of any information contained in any materials provided by the Seller to the Buyer, whether prior to or following the acceptance of this Contract (including without limitation any Property Disclosure Statement), and the Buyer acknowledges and agrees that it will be solely responsible for the verification of any such material or information provided by the Seller.
  
  Considerations
  This clause may be used where the Seller has provided information or materials to the Buyer (including, without limitation, a Property Disclosure Statement) in connection with the Buyer’s due diligence of the Property. A Buyer should be advised of the risks associated with including this language in the Contract.

  For further information, see BCFSA’s Disclosure Information and Disclosure Guidelines.

Estate

• Estate Condition for benefit of Buyer and Seller

  Subject to the Seller obtaining and providing the following to the Buyer by (date):

  1. a copy of a grant of probate or letters of administration allowing the Property to be sold (the “Estate Documents”);
  2. confirmation that a transmission of the title to the Property to the administrator or executor appointed in the Estate Documents (the “Transmission”) has reached final registration in the Land Title Office; and
  3. assurance of the Seller, satisfactory to the Buyer, that everyone entitled to claim under the Wills, Estates and Succession Act has waived or released their claims in relation to the Property.

  This condition (the “Estate Condition”) is for the benefit of the Seller and the Buyer and cannot be unilaterally waived by either of them.

  Considerations
  Where the registered owner on title to the Property is deceased, the executor(s) must first obtain a grant of probate or administration (the “Grant”) from the BC Supreme Court and transfer title into the name of the executor(s).

  A transfer of title to a buyer will not be possible until the Grant is obtained, and title is registered in the name of the executor(s). The process for obtaining the Grant may be lengthy and cannot be expedited even with a pending sale. Parties should be made aware of the risks before entering into a contract of purchase and sale without a Grant and without title registered in the name of the executor(s).

• Completion Date

  The Completion Date will be the later of (a) [insert date: ________________, 20____] and (b) 5 business days following the date on which the Estate Condition is declared fulfilled or waived by both the Buyer and the Seller.

  Considerations

  This is an optional clause that may be used with the “Estate Condition for Benefit of Buyer and Seller” clause.. If used, it should go in Section 3 of the standard form contract. Good practice would be to insert “see Section 3 above” in the completion date clause of the standard form contract (Section 4).

  The parties can also simply agree on a fixed completion date (to occur after the Estate Condition waiver deadline) and insert the same in the completion date provision in Section 4 of the standard form contract.

Financing

• New first mortgage A

  Subject to the Buyer being satisfied in its sole discretion, on or before [date], that it has received a satisfactory mortgage financing commitment. This condition is for the sole benefit of the Buyer.

  Considerations
  As an alternative, consider expressly setting out the specific terms of the mortgage financing commitment that must be obtained in order for the condition to be satisfied (e.g., “a mortgage in the amount of [insert], with an interest rate not to exceed [insert] percent per annum”).

GST

• Purchase Price does not include GST

  Notwithstanding anything herein to the contrary, the Buyer and Seller agree that the Purchase Price is exclusive of any GST applicable to the purchase and sale of the Property. If the purchase and sale of the Property contemplated by this Contract is not exempt from the payment of GST, and the Seller is required to collect the GST applicable on the purchase and sale of the Property from the Buyer by virtue of the fact that the Buyer is not, on Closing, registered for GST purposes under Subdivision D of Division V of Part IV of the Excise Tax Act, the Buyer will be responsible for paying to the Seller, concurrently with payment of the purchase price, such GST, and the Seller will be responsible for remitting the GST applicable in connection with this Contract of Purchase and Sale.

  Considerations
  The standard form contract provides that GST is included in the Purchase Price unless the Buyer and the Seller agree otherwise in writing. This clause may be used when the parties wish to exclude GST from the Purchase Price, the purchase and sale of the Property may not be exempt from GST, and the Buyer is not GST registered.

  This clause will not be suitable in all situations. If a Real Estate Professional is not sure about the language in this clause or whether it is appropriate, they should speak to their managing broker and seek legal advice, or encourage their clients to seek legal advice.

  Examples of situations in which this clause will not be suitable, and legal advice should be sought, include when the parties wish to exclude GST from the Purchase Price, the Buyer is GST registered, and

  • the Seller is not the builder of Property that is a used residential complex;
  • the Seller is the builder of Property that is a single unit residential complex that is already occupied or leased for occupancy as a place of residence of an individual; or
  • the Seller is the builder of Property that is a multiple residential complex that is already occupied or leased for occupancy as a place of residence of an individual.

• Buyer to obtain professional advice

  Subject to the Buyer obtaining and being satisfied in its sole discretion, on or before [date], with professional tax advice regarding the Buyer’s GST liability arising from, and any GST exemptions or rebates applicable to, the Buyer’s purchase of the Property. This condition is for the sole benefit of the Buyer.

• Purchase Price includes GST – assign rebate with credit – Buyer warrants eligible for rebate

  The Buyer and the Seller acknowledge that GST is applicable to the purchase and sale of the Property. The Buyer represents and warrants that the Buyer will be eligible for a GST rebate under section 254 of the Excise Tax Act in connection with the Buyer’s purchase of the Property (the “Rebate”).

  The Buyer hereby agrees to pay the Seller an amount equal to the Rebate. Relying on the Buyer’s representations and warranties, the Seller will credit the Rebate amount to the Buyer on the Completion Date.

  On or before the Completion Date, the Buyer will provide to the Seller a certificate as to the eligibility of the Rebate containing the following representations and warranties:

  1. The Buyer is the purchaser of the Property pursuant to a Contract of Purchase and Sale Agreement (the “Purchase Agreement”) entered into between the Seller and the Buyer.
  2. At the time the Buyer became liable or assumed liability under the Purchase Agreement, the Buyer was acquiring the Property for use as the primary place of residence of the Buyer or a relation (as defined for in subsection 254(1) of the Excise Tax Act) of the Buyer.
  3. To the best of the Buyer’s knowledge, the Buyer or a relation (as defined in subsection 254(1) of the Excise Tax Act) of the Buyer will be the first individual to occupy the Property as a place of residence after substantial completion of the construction or substantial renovation of the residential complex located on the Property.
  4. In all respects, the Buyer qualifies for the GST new housing rebate in respect of the purchase of the Property.

  On or before the Completion Date, the Buyer will provide to the Seller a completed and executed Rebate application on the required form to have the Canada Revenue Agency (“CRA”) pay or credit the Rebate directly to the Seller. If the CRA denies all or part of the Rebate claim, the Buyer will promptly remit to the CRA the denied amount plus any applicable interest or penalties upon the Seller’s written demand, and will indemnify the Seller against any losses arising as a result of the Buyer’s ineligibility for all or part of the Rebate.

  Considerations
  Real Estate Professionals should use this clause where the Seller is the builder of not-yet-occupied new single-unit housing for resale and credits the Buyer for the amount of the rebate amount that the buyer is entitled to on completion, based on the Buyer’s guarantee that it is eligible for the Rebate.

• Purchase Price includes GST – assign rebate – no Buyer warranty regarding eligibility

  The Buyer and the Seller acknowledge that GST is applicable to the purchase and sale of the Property. The Buyer makes no representations or warranties regarding the Buyer’s eligibility for a GST rebate under the Excise Tax Act in connection with the Buyer’s purchase of the Property (a “Rebate”). The Buyer hereby agrees to pay to the Seller an amount equal to any Rebate for which the Buyer is or becomes eligible (including, without limitation, after the Completion Date). If the Buyer is or becomes eligible for a Rebate, the Buyer will promptly cooperate with the Seller to cause the Canada Revenue Agency to grant the Rebate. If the Buyer receives any Rebate, the Buyer will hold the amount of any such Rebate in trust for, and promptly pay them to, the Seller. In no event will the Buyer be liable to the Seller as a result of the Buyer’s ineligibility for a Rebate.

  Considerations
  Real Estate Professionals should use this clause where GST is included in the Purchase Price and where the Seller is the builder of not-yet-occupied new single-unit housing for resale and the Buyer agrees to pay the rebate to the Seller without any guarantee of eligibility.

• GST Certificate

  Option 1

  If the purchase and sale of the Property contemplated by this Contract is exempt from the payment of Goods and Services Tax (“GST”), the Seller will execute and deliver to the Buyer, on or before the Completion Date, an appropriate GST exemption certificate to relieve the parties of their respective obligations to pay, collect, and remit GST in respect of the transaction.

  Option 2

  The Buyer and Seller agree that the purchase price is exclusive of any GST applicable to the purchase and sale of the Property.

  To the extent that the Seller is not required by the Excise Tax Act to collect applicable GST on the purchase and sale of the Property from the Buyer by virtue of the Buyer being registered under Subdivision D of Division V of the Excise Tax Act, the Buyer will be required to report and remit any such GST in accordance with the Excise Tax Act and the Buyer will deliver to the Seller on or before the Completion Date a certificate that includes an undertaking to remit GST in accordance with the Excise Tax Act.

  Considerations
  Real Estate Professionals should use option 1 where an exemption from the payment of GST is available.

  Real Estate Professionals should use option 2 where no exemption is available and the Buyer is registered for GST.

Heritage Nature of the Property

• Heritage Conservation Act

  Subject to the Buyer being satisfied in its sole discretion, on or before [date], that there are no limitations unsatisfactory to the Buyer on the use or development of the Property resulting from the Heritage Conservation Act, any regulations thereunder, or any similar legislation or any similar local government bylaws. This condition is for the sole benefit of the Buyer

  Considerations
  Real Estate Professionals should be aware that heritage properties may have restrictions on their use and development and are subject to restrictions under provincial and municipal laws and bylaws. A Buyer of a heritage property should be encouraged to seek legal advice on the implication of the heritage status of the Property.

• Seller representation that the Property is not a heritage Property

  The Seller represents and warrants that the Property is not a heritage property, and the use or development of the Property is not restricted under the Heritage Conservation Act, any regulations thereunder, or any similar legislation or any similar local government bylaws.

  Considerations
  If including this clause in the Contract, the Seller should be confident in its ability to make the representation and warranty, including any requisite due diligence to confirm the non-heritage status of the Property.

Homeowner Protection Act

• Licensed builder and warranty insurance coverage

  The Seller represents and warrants that:

  1. the Seller is a licensed residential builder under the Homeowner Protection Act (“HPA”); and
  2. the Property is covered by at least the minimum mandatory home warranty insurance required by the HPA.

  At the Buyer’s request, the Seller will promptly provide to the Buyer the New Home Registration Form for the Property.

  Considerations

  For further information, see BCFSA’s Homeowner Protection Act Information and Homeowner Protection Act Guidelines.

• Receipt and satisfaction regarding warranty insurance

  Subject to the Buyer receiving a copy of the home warranty insurance policy for the Property from the Seller and being satisfied in its sole discretion, on or before [date], with the terms and content of that policy (including, without limitation, commencement and expiry dates and any exclusions for coverage). This condition is for the sole benefit of the Buyer.

  Considerations
  For further information, see BCFSA’s Homeowner Protection Act Information and Homeowner Protection Act Guidelines.

• Receipt of owner builder disclosure notice

  The Buyer acknowledges that, prior to signing this Contract, it received a copy of the Owner Builder Disclosure Notice dated [date] for the Property in accordance with the Homeowner Protection Act and its regulations.

  Considerations
  For further information, see BCFSA’s Homeowner Protection Act Information and Homeowner Protection Act Guidelines.

Inspection

• Buyer’s satisfaction – site disclosure statement

  Subject to the Seller, at the Seller’s expense, providing to the Buyer a fully completed copy of the site disclosure statement (as defined in the Environmental Management Act) for the Property and the Buyer being satisfied in its sole discretion, on or before [date], with that site disclosure statement. This condition is for the sole benefit of the Buyer.

  Considerations
  If the Property was historically or currently used for any industrial or commercial uses, then a site disclosure statement may be required under the Environmental Management Act. Even where the Property was not used for such uses, certain authorities may require a site disclosure statement in respect of a redevelopment.

  If the Property is contaminated or contamination is suspected, then the parties should seek legal advice as to their respective liabilities and responsibilities prior to entering in the Contract.

• Waiver of site disclosure statement

  The Buyer waives any requirement for the Seller to provide the Buyer with a site disclosure statement for the Property under the Environmental Management Act and any regulations thereunder.

  Considerations
  If the Property was historically or currently used for any industrial or commercial uses, then consider if the Buyer should waive the requirements under the Environmental Management Act and conduct its own due diligence.

  If the Property is contaminated or contamination is suspected, then the parties should seek legal advice as to their respective liabilities and responsibilities prior to entering in the Contract.

• Seller’s satisfaction – site disclosure statement

  The Seller will, at the Seller’s expense, provide to the Buyer (or has provided to the Buyer prior to the acceptance of this Contract by the Seller) a site disclosure statement (as defined in the Environmental Management Act) for the Property, on or before [date].

  The Seller represents and warrants, to the best of the Seller’s knowledge, that the information contained in that site disclosure statement is true, complete and correct.

  Considerations
  If the Property was historically or currently used for any industrial or commercial uses, then a site disclosure statement may be required under the Environmental Management Act. Even where the Property was not used for such uses, certain authorities may require a site disclosure statement in respect of a redevelopment.

  If the Property is contaminated or contamination is suspected, then the parties should seek legal advice as to their respective liabilities and responsibilities prior to entering in the Contract.

• Buyer Inspection of Property – cumulative cost/no reasonable adverse effect

  Subject to:

  1. the Buyer obtaining, at the Buyer’s expense, an inspection report for the Property that indicates that the cumulative cost to remedy any defects does not exceed (select dollar amount); and
  2. the Buyer being satisfied in its sole discretion, on or before [date], that any defects identified in such inspection report would not reasonably adversely affect the use or value of the Property.

  This condition is for the sole benefit of the Buyer. The Seller, on reasonable notice, will allow access to the Property for the purpose of the inspection(s).

• Buyer inspection of Property – Buyer satisfaction

  Subject to the Buyer obtaining, at the Buyer’s expense, an inspection for the Property, and the Buyer being satisfied in its sole discretion, on or before [date], with the results of the inspection report. This condition is for the sole benefit of the Buyer. The Seller, on reasonable notice, will allow access to the Property for the purpose of the inspection(s).

• Inspection/testing/government approval

  Subject to the Buyer obtaining, at the Buyer’s expense, an inspection report from [insert name of inspecting body or authority] concerning [describe condition] and being satisfied, on or before [date], that the findings of that report would not reasonably adversely affect the use or value of the Property. This condition is for the sole benefit of the Buyer. The Seller, on reasonable notice, will allow reasonable access to the Property for the purpose of the inspection.

• Access to Property 

  The Seller, at no cost to the Seller, will provide the Buyer and its agents, consultants and trades, with access to the Property on at least [insert number] occasions prior to the Completion Date, including but not limited to appraisers, engineers, environmental consultants, lenders, inspectors, insurers, surveyors or other professional agents or representatives of the Buyer’s choice. In each instance, the Buyer shall provide to the Seller or Seller’s representative at least 24 hours notice to access the Property.

  Optional – Any such access will be in addition to any rights of access granted to the Buyer prior to subject removal.

  Optional — The Buyer agrees to indemnify and save harmless the Seller from any claims, actions, damages or costs that result from the Buyer’s access of the Property under this clause.

  Considerations
  Consideration should be given to whether access to the Property will only be granted prior to subject removal (e.g., for the purpose of verifying matters relating to the subject conditions, if any) or following subject removal (e.g., for the purpose of taking measurements). The optional indemnity language may be included to protect the Seller from losses that may be suffered or incurred as a result of the Buyer’s access.

Insurance

• Property insurance condition

  Subject to the Buyer obtaining approval, on or before [date], from a licensed insurer for property coverage (including, without limitation, fire, earthquake and flood coverage) and liability insurance for the Property on terms and at rates satisfactory to the Buyer in its sole discretion. This condition is for the sole benefit of the Buyer.

  Considerations
  In recent years, property insurers in British Columbia have become increasingly reluctant to provide insurance coverage on properties that are threatened by natural catastrophe and climate-related events (e.g. wildfires, earthquakes or flooding). Consider whether any insurance conditions included in the Contract should address such coverages.

• Wood burner may void insurance

  The Buyer acknowledges that the [select wood stove, fireplace insert or chimney] installed on the Property may not be in compliance with applicable laws governing its installation or use and may render any fire insurance void or affect the insurance coverage available to the Buyer in respect of the Property. The Buyer accepts the [select wood stove, fireplace insert or chimney] in its present condition, on an “as is, where is” basis.

• Wood burner insurance confirmation

  Subject to the Buyer obtaining, on or before [date], confirmation from the Buyer’s insurance agent that the [select wood stove, fireplace insert or chimney] installed on the Property will not affect the Buyer’s ability to obtain property (including, without limitation, fire) and liability insurance, and, if that insurance is available to the Buyer, will not result in a cost for that insurance that is unsatisfactory to the Buyer in its sole discretion. This condition is for the sole benefit of the Buyer.

• Buyer unable to obtain fire insurance by Completion Date

  If, as a result of a wildfire and despite the Buyer’s best efforts, the Buyer is unable to obtain fire insurance on the Property that is binding and effective as of the original Completion Date, on terms and at rates that are commercially reasonable, then the Buyer may, at its sole discretion, extend each of the Completion Date, the Adjustment Date and the Possession Date to the date that is the first business day that is [number of days, e.g. 30] calendar days after the original respective dates by providing written notice to the Seller or the Seller’s agent at least [number of days, e.g. 5] business days before the original Completion Date.

  The parties agree that time will remain of the essence.

  Optional — If during the period between the delivery of the Extension Notice and [5] business days before the extended Completion Date the Buyer obtains fire insurance on the Property that would allow the Buyer to complete the purchase and sale of the Property before the extended Completion Date, the Buyer will immediately provide written notice of same to the Seller or the Seller’s agent (the “Insurance Notice”) and the Seller may, by providing written notice to the Buyer or the Buyer’s agent within [2] business days after the Insurance Notice is provided, elect to accelerate the Completion Date to a date that is [5] business days after the Insurance Notice is provided, and the Adjustment Date and the Possession Date will be adjusted so that they will occur with the same relativity to the new extended Completion Date as they had to the original Completion Date.

  Considerations
  This is an extension right only and does not allow the Buyer to terminate the Contract or walk away from the transaction. If there is any concern that the Property is not insurable for fire (or any other natural catastrophe and climate-related insurable events), the Buyer should consider including in the Contract a condition regarding such insurance coverage. See also the “Property insurance condition” clause.

  See BCFSA Advisory 24-013 (New Wildfire Clause for Real Estate Transactions) and BCFSA Bulletin (Discussing the Wildfire Clause with Clients: Best Practices).

  A Real Estate Professional should recommend that their client obtain legal advice regarding how triggering this clause may affect any related transactions that are closing on their original completion dates.

  The optional wording allows the Seller to accelerate the Completion Date if the Buyer is able to obtain insurance before the end of the 30-day extension. Instead of including this optional wording, another way of accelerating the closing is to have the parties sign an amendment.

Lawyer/Advisor Approval

• Approval by Buyer’s professional advisors

  Subject to the Buyer obtaining, on or before [date], satisfactory review and approval by the Buyer’s legal, accounting and other professional advisors, as applicable, of the terms and conditions of this Contract, in the Buyer’s sole discretion. This condition is for the sole benefit of the Buyer.

  Considerations
  This clause allows the Buyer to seek approval from its professional advisors regarding the terms and conditions of the Contract.

  As the Buyer still has a duty to act in good faith in performing the Contract, potential issues arise when a buyer seeks to rely on advice clauses to terminate the transaction.

• Legal advice — Seller

  Subject to the Seller obtaining, on or before (date), legal advice satisfactory to the Seller concerning (define applicable legal issue, e.g., easement, builders lien, financing). This condition is for the sole benefit of the Seller.

  Considerations
  The specific issue needs to be described in this clause.

• Legal advice — Buyer

  Subject to the Buyer obtaining, on or before [date], legal advice satisfactory to the Buyer in its sole discretion concerning [insert specific issue, e.g., easement, builders lien, financing]. This condition is for the sole benefit of the Buyer.

  Considerations
  This clause is intended to provide the Buyer with the ability to seek legal advice regarding a specific issue. As the Buyer still has a duty to act in good faith in performing the Contract, potential issues arise when a buyer seeks to rely on legal advice clauses to terminate the transaction.

• Brokerage not an expert acknowledgement 

  The Buyer and the Seller acknowledge that the brokerages providing agency services to the Buyer and the Seller do not have legal or other expertise in matters beyond the common standard of care in the real estate industry. The parties have been advised to seek independent legal advice and advice from any other applicable expert (including, without limitation, home inspectors, mortgage brokers, tax accountants, lawyers, appraisers, or experts in other such fields) prior to executing this Contract.

  Considerations
  This provision highlights the limitations around the services being provided by the brokerage and encourages the parties to seek the requisite and/or desired expertise

Leasehold

• Confirmation of Tenancy Details

  The Seller represents and warrants as follows:

  1. the Property is subject to a tenancy agreement under the Residential Tenancy Act;
  2. the monthly rent is $[amount];
  3. the monthly rent is due on the [number] day of each month;
  4. the last rental increase was [date];
  5. a security deposit of $[amount] was paid by the tenant on [date]; and
  6. a pet damage deposit of $[amount] was paid by the tenant on [date].

  Considerations
  This clause should be used for tenancies under the Residential Tenancy Act.

  If the Buyer is intending to maintain the tenancy applicable to the Property, then additional due diligence should be undertaken by the Buyer including obtaining and reviewing a copy of the tenancy agreement and any amendments thereto. The Real Estate Professional and the Buyer should strongly consider adding the “Approval of Tenancy Agreement” clause in addition to this clause.

  For further information, see BCFSA’s Tenancies (Residential) Information and Tenancies (Residential) Guidelines.

• Tenancies disclosed to the Buyer

  The Buyer acknowledges having received a copy of the tenancy agreement between the Seller, as the landlord, and [insert] (the “Tenant”), as the tenant, dated [date] in respect of the Property (the “Lease”).

  The Seller represents and warrants as follows:

  1. the Buyer has been provided with a complete copy of the Lease;
  2. the Lease is the only lease, tenancy agreement, subtenant agreement, right of occupation, license or other agreement where any person has been granted the right to use and occupy the Property; and
  3. the Lease is in full force and effect and enforceable against the Tenant and constitutes the whole of the agreement with the Tenant.

  Considerations
  This clause assumes that the tenancy agreement affecting the Property has been disclosed to the Buyer prior to the Contract being entered into. As such, the tenancy agreement will contain tenant’s personal information, as defined in the Personal Information Protection Act.

  Before disclosing the tenancy agreements affecting the Property to the Buyer, the Seller or the Real Estate Professional representing the Seller should obtain the tenant’s consent to that disclosure. If consent cannot be obtained, the Seller and/or the Real Estate Professional representing the Seller should obtain legal advice relating to their obligations under privacy law.

  Consider requiring this clause in addition to the “Confirmation of Tenancy Details” clause.

  For further information, see BCFSA’s Tenancies (Residential) Information and Tenancies (Residential) Guidelines.

• No Current Leases

  The Seller warrants that the property will be delivered vacant on the possession date and confirms that there are no current leases or tenancies or other occupancy arrangements affecting the property.

  Considerations
  Consider seeking confirmation that the property is not subject to any tenancy arrangement if there is a concern that such arrangement may impact the Property.

  For further information, see BCFSA’s Tenancies (Residential) Information and Tenancies (Residential) Guidelines.

• Notice to End Tenancy

  If the Seller has received from the Buyer a written request to give a bona fide notice to end tenancy pursuant to section 49(5)(c) of the Residential Tenancy Act and provided that (i) the requirements under section 49(5) of the Residential Tenancy Act have been complied with by the Seller and the Buyer, and (ii) the Buyer intends to occupy the rental unit on the grounds set out in section 49(5)(c) of the Residential Tenancy Act, the Seller will promptly give a notice to end the tenancy in strict accordance with the provisions of the Residential Tenancy Act to any tenants of the Property (including, the notice requirements under Section 49(7) of the Residential Tenancy Act).

  Considerations
  Note that under Section 49(5) the Residential Tenancy Act certain conditions must be met before such notice can be provided to the tenants of the property. Seller should ensure that any notice provided to end the tenancy meets the requirements under the Residential Tenancy Act, including the notice requirements.

  For further information, see BCFSA’s Tenancies (Residential) Information and Tenancies (Residential) Guidelines.

• Unauthorized Accommodation

  The Buyer acknowledges that the Property contains unauthorized accommodation and understands and accepts the potential consequences of such unauthorized accommodation including, without limitation, legal risks, insurance risks and financial risks (such as risk of loss of income if the Buyer is required to discontinue any rental of that unauthorized accommodation).

  The Buyer fully releases the Seller from any and all liability, actions and claims arising from and after the Completion Date in respect of or in connection with the Property containing an unauthorized accommodation. For greater certainty, the foregoing release does not apply to the physical condition of the Property, including that portion of the Property used for the unauthorized accommodation.

  Considerations
  An unauthorized living space (such as a basement suite) may have adverse legal, financial and insurance impacts on the Buyer. Further, the Seller should consider its legal and financial potential liabilities in selling a property that has unauthorized accommodation.

  Note that this disclosure should also be noted in the Property Disclosure Statement.

  Consider requiring additional “as is, where is” confirmation.

  For further information, see BCFSA’s Tenancies (Residential) Information and Tenancies (Residential) Guidelines.

• Seller Remaining in Possession – very short term

  The Buyer will permit the Seller to remain in possession until the Possession Date as a “seller in possession.” The Buyer and the Seller agree that the extension of possession past the Completion Date to the Possession Date does not create a tenancy agreement under the Residential Tenancy Act. The Buyer and the Seller agree that no amounts or fees are payable by the Seller in respect of this arrangement.

  Considerations
  This clause should be used only if the Seller requires a very short period (i.e. a few additional days) to vacate the property.

  For further information, see BCFSA’s Tenancies (Residential) Information and Tenancies (Residential) Guidelines.

• Seller Remaining in Possession – longer term

  Subject to the Seller and the Buyer entering into an agreement on or before [date] for the Seller to remain in possession until the Possession Date as a “seller in possession”. The Buyer and the Seller agree that the extension of possession past the Completion Date to the Possession Date does not create a tenancy agreement under the Residential Tenancy Act. The Buyer and the Seller agree that no amounts or fees are payable by the Seller in respect of this arrangement.

  Considerations
  This clause should be used when the Seller requires possession of the Property beyond a few days following the Completion Date. However, strongly consider advised the parties to seek legal advice if a long-term arrangement is required by the parties. Also consider whether and how adjustments will be addressed if the Seller is requiring additional time at the Property. Further consider how the Buyer may seek compensation or a deposit for in respect of this arrangement.

  For further information, see BCFSA’s Tenancies (Residential) Information and Tenancies (Residential) Guidelines.

• Approval of Tenancy Agreement

  Subject to the Buyer receiving and being satisfied in its sole discretion with, on or before [date], all the tenancy agreements and arrangements affecting the Property.

  This condition is for the sole benefit of the Buyer.

  Considerations
  Tenancy agreements contain tenant’s personal information, as defined in the Personal Information Protection Act.

  Before providing the tenancy agreement to the Buyer, the Seller or the Real Estate Professional representing the Seller should obtain the tenant’s consent to that disclosure. If consent cannot be obtained, the Seller and/or the Real Estate Professional representing the Seller should obtain legal advice relating to their obligations under privacy law.

  For further information, see BCFSA’s Tenancies (Residential) Information and Tenancies (Residential) Guidelines.

Miscellaneous

• Appliance Warranty

  The Seller warrants to the Buyer that all major appliances at the Property are included in the Purchase Price and will be materially the same as when viewed by the Buyer on [inspection date] and that all major appliances will be in good working order on the Possession Date (subject to reasonable wear and tear).

  Considerations
  Real Estate Professionals should consider if there are any particular appliances of unique nature that require additional warranties or covenants from the Seller.

• Confidentiality of Terms

  The Seller and the Buyer agree that the terms and conditions set out in this Contract will not be disclosed to any other person, other than professional advisors and lenders, without the prior written consent of the Seller and the Buyer.

  Considerations
  This confidentiality clause would only be binding if an offer or counteroffer were accepted. Until that time there is no contract, and therefore confidentiality would not be protected at that time using this clause.

  Consider obtaining a non-disclosure agreement separate from Contract and have it signed by Buyer and Seller before any offer is made. This is particularly important if disclosing due diligence materials and information prior to the Contract being signed.

  Consider MLS rules on this issue.

• Seller is legal and beneficial owner 

  The Seller is the sole registered and beneficial owner of the Property and has good and marketable title to the Property, free and clear of all liens, charges, claims and encumbrances except the encumbrances permitted pursuant to Section 9 of the Contract and those financial charges, if any, to be paid out on closing as provided in this Contract.

  Considerations
  To ensure that the Seller is the legal and beneficial owner of the Property, seek confirmation by requiring this representation.

• Title held by a Nominee 

  The Buyer acknowledges that legal title to the Property is held by [insert name] (the “Nominee”) on behalf of the Seller and the Buyer agrees to accept the transfer of title to the Property from the Nominee, notwithstanding any provision of the Property Law Act (British Columbia) to the contrary and, in addition, the Seller and the Buyer acknowledge and agree that, upon the filing of the transfer in the Land Title Office, the Seller will be deemed to have concurrently assigned, transferred and conveyed all the Seller’s beneficial right, title and interest in and to the Property to the Buyer.

  Considerations
  If there is an arrangement in place whereby an individual or an entity holds title to the Property as a bare trustee for a beneficiary, then a copy of the trust instrument should be obtained and reviewed by the Buyer’s legal counsel. The Seller of the property should be the beneficial owner of the Property and an acknowledgement as to the legal title holding should be required in the Contract. If the Seller is not the legal and beneficial owner of the Property, then both the Buyer and the Seller should seek legal advice to ensure that the Contract is drafted properly to address this ownership arrangement.

  If the property is held in a bare trust arrangement, Real Estate Professionals should consider undertaking searches of the Land Owner Transparency Registry to confirm if filings have been made by the owner of the Property.

  
  

New Construction

• Builders Lien Holdback

  In recognition of the Buyer’s potential liability under section 35 of the Builders Lien Act, the Buyer’s Conveyancer will hold back from the sale proceeds an amount equal to 10% of the purchase price of the improvements (the “Holdback”):

  1. for 55 days after the date of issuance of the certificate of completion; or
  2. where there is no certificate of completion, for 55 days after the later of:
     1. the date the head contract is completed, abandoned or terminated; or
     2. the date the occupancy permit is issued

  (the “Holdback Period”).

  The Buyer and the Seller agree that the purchase price of the improvements for the purposes of section 35 of the Builders Lien Act is $[price]. On the expiry of the Holdback Period, the Buyer’s Conveyancer will release the Holdback to the Seller; however, if any liens under the Builders Lien Act have been filed against title to the Property with respect to the improvements, then the Buyer’s Conveyancer may:

  1. continue to retain a portion of the Holdback equal to the amount of those lien(s) until receiving satisfactory evidence from the Seller that the liens have been discharged from the title to the Property: or
  2. pay that portion of the Holdback into court under section 23 of the Builders Lien Act.

  Considerations
  If a property is newly constructed or substantially renovated, consider the applicability of the Builders Lien Act. There may be potential claims under the Builders Lien Act for materials or labour provided in the construction of the property which could result in a claim being registered against title to the property. If there are any concerns in this respect, the Buyer should be advised to seek legal advice.

• Walk through Deficiency Inspection

  The Buyer and the Seller (or a representative of the Seller) will jointly conduct a walk-through inspection of the Property no later than [number] days before the Completion Date.

  Upon completion of the inspection, the Buyer and the Seller will complete a mutually agreed deficiency list (“Deficiency List”) detailing all items that are to be remedied by the Seller (each, a “Deficiency”) and an estimated value for each Deficiency to be remedied. The Buyer and the Seller will sign and date the Deficiency List which will then form part of this Contract.

  The Seller will use all commercially reasonable efforts to remedy the Deficiencies in a good and workmanlike manner according to generally acceptable industry standards before the Completion Date and will provide the Buyer with written confirmation that all Deficiencies have been remedied.

  If, despite exercising commercially reasonable efforts, the Seller has not remedied or will not be able to remedy the Deficiencies [number] days prior to the Completion Date, the Seller or the Seller’s Conveyancer will immediately notify the Buyer and the Buyer’s Conveyancer of this fact.

  The Buyer’s Conveyancer will then hold back from the sale proceeds in its trust account [an amount equal to the total value of the unremedied Deficiencies] OR [percentage, e.g., 110] % of the total value of the unremedied Deficiencies (the “Deficiencies Holdback”).

  If there are unremedied Deficiencies as of the Completion Date, and the required notice, as provided for above, has been given to the Buyer and the Buyer’s Conveyancer, the Seller will nevertheless remedy all unremedied Deficiencies by [number] days after the Completion Date (the “Deficiency Remedy Date”). After the Completion Date, upon the Seller’s written request, the Buyer will provide the Seller with reasonable access to the Property to enable the Seller to remedy the Deficiencies.

  If all of the Deficiencies are remedied by the Seller on or before the Deficiency Remedy Date, the Buyer will instruct the Buyer’s Conveyancer to immediately release to the Seller the Deficiencies Holdback.

  If all of the Deficiencies are not remedied by the Deficiency Remedy Date, the Buyer will instruct the Buyer’s Conveyancer to only release from the Deficiencies Holdback the total value of the Deficiencies that have been remedied. In this case, the Buyer may either:

  1. agree to extend the Deficiency Remedy Date; or
  2. instruct the Buyer’s Conveyancer to release the balance of the Deficiencies Holdback to the Buyer on account of the unremedied Deficiencies without the involvement of the Seller and without limiting any other rights or remedies that the Buyer may have against the Seller.

  Considerations
  Note that this holdback is separate and in addition to any statutory lien holdback mandated by the Builders Lien Act. Buyers should be advised to seek legal advice if entering into a Contract to purchase property that is new construction that is not substantially yet completed and/or if the anticipated deficiency works are substantial.

  In acting for Buyers, consider seeking a percentage that is above the total estimated amount of the total value of the unremedied Deficiencies to address rising costs and additional unanticipated costs associated with such Deficiencies.

• Licensed builder and warranty insurance coverage

  The Seller represents and warrants that:

  1. the Seller is a licensed residential builder under the Homeowner Protection Act (“HPA”); and
  2. the Property is covered by at least the minimum mandatory third-party home warranty insurance required by the HPA.

  At the Buyer’s request [or within 5 business days from the date this Contract is accepted by the Seller], the Seller will promptly provide to the Buyer the New Home Registration Form for the Property.

  Considerations
  Subject to certain limited exemptions, new homes built in British Columbia by licensed residential builders must be covered by mandatory, third-party home warranty insurance, pursuant to the Homeowner Protection Act.

  For further information see Home Warranty Insurance on New Homes..

  For further information, see BCFSA’s Homeowner Protection Act Information and Homeowner Protection Act Guidelines.

• Receipt and satisfaction regarding warranty insurance

  Subject to the Buyer receiving a copy of the home warranty insurance policy for the Property from the Seller and being satisfied, on or before [date], with the terms of that policy (including commencement and expiry dates and any exclusions for coverage). This condition is for the sole benefit of the Buyer.

  Considerations
  For further information, see BCFSA’s Homeowner Protection Act Information and Homeowner Protection Act Guidelines.

• Receipt of owner builder disclosure notice

  The Buyer acknowledges having received before signing this Contract a copy of the Owner Builder Disclosure Notice dated [date] for the Property in accordance with the Homeowner Protection Act and its regulations.

  The Buyer acknowledges that the Buyer has been advised to obtain legal advice regarding the Purchase of a Property from an owner builder and the requirements under the Homeowner Protection Act and its regulations.

  Considerations
  Real estate professionals have been disciplined for non-compliance with requirements of the Homeowner Protection Act (British Columbia), including for failing to ascertain whether the seller had complied with the Homeowner Protection Act, failing to ensure that the buyer received a copy of the Owner Builder Disclosure Notice, failing to include a term in the contract of purchase and sale that indicated that the notice had been provided to the buyer, and failing to advise the buyer to seek independent professional advice.

  For further information, see BCFSA’s Homeowner Protection Act Information and Homeowner Protection Act Guidelines.

Occupancy Permit

• Occupancy Permit

  Before the Completion Date, the Seller will provide to the Buyer an unconditional municipal or regional district occupancy permit or legal equivalent evidencing a final inspection by the local authorities (“Permit”).

  If the Seller does not provide the Permit to the Buyer before the Completion Date, the Buyer may terminate this Contract on written notice to the Seller or the Seller’s agent, and the Deposit will be returnable in accordance with the Real Estate Services Act.

  Considerations
  Real Estate Professionals should consider seeking confirmation that a property has received all the requisite permits required, even if the property is a not a new built. This confirmation becomes more important in new built properties where an authority may issue a provisional permit with certain conditions and requirements on an interim basis prior to issuance of a final permit. If a final permit has not been issued for the Property, the Buyer should be highly encouraged to seek legal advice.

Prohibition on the Purchase of Residential Property by Non-Canadians Act

• Prohibition on the Purchase of Residential Property by Non-Canadians Act

  The Buyer is aware of the Prohibition on the Purchase of Residential Property by Non-Canadians Act (Canada) and that it is an offence for a “non-Canadian” to acquire the Property or for the Buyer to aid or abet any “non-Canadian” to acquire, directly or indirectly, any interest in the Property. The Buyer covenants and agrees with the Seller that it is not acquiring the Property in trust for or on behalf of any other party and that the Buyer’s purchase of the Property is in full compliance with all applicable laws, including, without limitation, the Prohibition on the Purchase of Residential Property by Non-Canadians Act (Canada) and its regulations. The Buyer further covenants, represents, and warrants that as of the date of this Contract and as of the Completion Date, the Buyer is not a “non-Canadian” within the meaning of the Prohibition on the Purchase of Residential Property by Non-Canadians Act (Canada) and its regulations.

  Considerations
  The Prohibition on the Purchase of Residential Property by Non-Canadians Act (Canada) is recently enacted legislation that imposes potential liability on sellers that sell residential property to non-Canadians, within the meaning of the legislation. If acting for a seller and there is potential concern that the sale of the applicable property may engage the a on the Purchase of Residential Property by Non-Canadians Act, then, in addition to incorporating appropriate provisions into the Contract, the Seller should be advised to seek legal advice on the subject.

• Statutory declaration confirming Buyer is not a “non-Canadian”

  The Buyer shall, on the Completion Date, provide a statutory declaration confirming that the Buyer is not a “non-Canadian” within the meaning of the Prohibition on the Purchase of Residential Property by Non-Canadians Act (Canada) and its regulations, in such form as reasonably required by the Seller or the Seller’s Conveyancer.

  Considerations
  The Prohibition on the Purchase of Residential Property by Non-Canadians Act (Canada) is recently enacted legislation that imposes potential liability on sellers that sell residential property to non-Canadians, within the meaning of the legislation. If acting for a seller and there is potential concern that the sale of the applicable property may engage the Prohibition on the Purchase of Residential Property by Non-Canadians Act, then, in addition to incorporating appropriate provisions into the Contract, the Seller should be advised to seek legal advice on the subject.

Property Transfer Tax

• Property Transfer Tax 

  The Buyer acknowledges that it is aware that Property Transfer Tax is calculated as 1% of the first $200,000 of the Purchase Price, plus 2% between $200,000 up to and including $2,000,000, plus 3% between $2,000,000 up to and including $3,000,000, plus 5% on the balance above $3,000,000 and is payable by the Buyer on the Completion Date, unless the Buyer qualifies for an exemption.

  The Buyer acknowledges that it is aware of the Additional Property Transfer Tax, commonly referred to as the Foreign Buyer Tax, which is applied to foreign nationals, foreign corporations and taxable trustees, including companies with partial or full ownership by foreign nationals, which is calculated as 20% of the Purchase Price, and is payable by the Buyer on the Completion Date (subject to any applicable exemptions).

  Considerations
  Property transfer tax and the additional property transfer tax (foreign buyer tax) are paid by the Buyer. The Seller is not responsible for collection or enforcement of the property transfer tax and foreign buyer tax in any manner. Thus, while not strictly a matter to be included in the contract of purchase and sale, advisors may wish to include a clause in respect of the property transfer tax and foreign buyers tax to flag the issue for the Buyer.

  The Property Transfer Tax rates may be subject to change – advisors should confirm applicable rates before using this clause.

• Statutory declaration confirming Seller’s particulars for PTT filings

  The Seller shall deliver to the Buyer on or before the Completion Date a statutory declaration of the Seller confirming the particulars that are required regarding the Seller to be included in the Buyer’s Property Transfer Tax Return to be filed in connection with the completion of the transaction contemplated by this Contract, in such form as reasonably required by the Buyer or the Buyer’s Conveyancer. The Seller hereby consents to the Buyer inserting such particulars on such return.

Seller’s Residency

• Seller’s representation re: residency 

  The Seller represents and warrants that it is not and will not be on the Completion Date a non-resident within the meaning of the Income Tax Act (Canada).

• Statutory declaration confirming Seller’s residency 

  The Seller shall deliver to the Buyer on or before the Completion Date a statutory declaration of the Seller confirming that the Seller is not a non-resident within the meaning of the Income Tax Act (Canada), in such form as reasonably required by the Seller or the Seller’s Conveyancer.

• Seller may be a non-resident

  If on the Completion Date the Seller is a non-resident within the meaning of the Income Tax Act (Canada), the Buyer shall be entitled to hold back from the Purchase Price the amount provided for under Section 116 of the Income Tax Act (Canada).

BC Speculation Tax

• Buyer Confirmation re: BC Speculation Tax

  The Buyer is aware of the British Columbia Speculation and Vacancy Tax and is advised to seek independent legal advice should it deem it necessary, to determine if it (as an individual), its corporate entities and/or the Property may be subject to any or all of these taxes.

  Considerations
  The BC Speculation and Vacancy Tax is assessed on owners of residential property within specified areas of BC. In contrast to the City of Vancouver Empty Homes/Vacancy Tax, the tax is a liability of the property owner and not the property. BC Government guidance confirms that the Buyer does not take on any Speculation and Vacancy Tax liability of a Seller. Despite the foregoing, the BC Government may impose a lien on a property of a tax debtor to secure payment of an outstanding Speculation and Vacancy Tax debt.

• Seller Confirmation re: BC Speculation Tax

  The Seller warrants that it has made all requisite filings in respect of the British Columbia Speculation and Vacancy Tax for the [year(s)] calendar year(s) and on or before the Completion Date will provide the Buyer with reasonable evidence that such filing has been made.

City of Vancouver Empty Homes Tax

• Empty Homes Tax

  The Seller represents and warrants to the Buyer there is no amount due or payable under the City of Vancouver Empty Homes/Vacancy Tax (“EHT”) with respect to the Property and acknowledges, covenants and agrees:

  (a) to assume all liability in relation to the Vancouver Empty Homes/Vacancy Tax (“EHT”) for the tax year(s) in which the Seller was registered owner on December 31 (the “Tax Period”);

  (b) to release, indemnify, and save harmless the Buyer from any and all liability, manner of actions, whether actual or threatened, causes of action, suits, debts, duties, accounts, bonds, covenants, contracts, claims and demands arising out of or in relation to the EHT for the Tax Period;

  (c) to provide the Buyer with a copy of the filed Property Status Declaration (“PSD”) for the current tax your and/or two (2) most recent tax years at least 5 days prior to the Completion Date;

  (d) to provide the Buyers with a statutory declaration prior to the Completion Date regarding the EHT and the PSD prepared by the Buyer’s conveyancer in accordance with standard conveyancing practices; and

  (e) that, if EHT is payable for the Tax Period, the EHT will be borne solely by the Seller and there will be an adjustment for this at closing.

  Considerations
  The City of Vancouver Empty Homes/Vacancy Tax is assessed on residential property within the City of Vancouver and is an assessment on the property, not the owner. Therefore, any unpaid Empty Homes Tax and late payment penalty remains as a liability on the Empty Homes Tax account or, if left unpaid, in subsequent years on the property tax account. A change in ownership does not relieve the new owner of this liability.

  If a property is declared vacant or the City has not yet determined whether a property is subject to the tax, the City recommends to provide a holdback in the amount of the empty homes/vacancy tax for the relevant reference year pending the City’s determination.

Strata

• Buyer approving Property Disclosure Statement

  Subject to the Buyer obtaining and being satisfied, on or before (date), with a Property Disclosure Statement with respect to the Property.

  This condition is for the sole benefit of the Buyer.

  If this condition is satisfied or waived, the Property Disclosure Statement will be incorporated into and form part of this Contract.
  
  Considerations
  For further information, see BCFSA’s Disclosure Information and Disclosure Guidelines.

• Nature of parking stalls/storage lockers to be verified

  Subject to the Buyer receiving and being satisfied with, on or before [date], a lease or licence between [name], as landlord or licensor, and [name], as tenant or licensee, confirming that the Seller is entitled to the exclusive use of parking stall(s) [numbers], storage locker(s) [numbers] and designated bike locker(s) [numbers],

  and that the lease or licence may be assigned to the Buyer.

  This condition is for the sole benefit of the Buyer.

  Considerations
  Applicable to strata lots where the parking stalls and/or storage lockers are not designated as limited common property, and where the Buyer will be confirming the entitlement/allocation after execution of the Contract.

• Acknowledgement of parking/storage 

  The Buyer acknowledges that there [is/are] [number] parking stall(s) designated as stall(s) number [number], there [is/are] [number] storage locker(s) [number] designated as locker(s) number [number], and there [is/are] [numbers] designated bike locker(s) designated as locker(s) number [number] associated with, and available for use by the owner of, the strata lot.

  Considerations
  Applicable to strata lots where the parking stalls and/or storage lockers are not designated as limited common property, and where the Buyer is accepting the existing parking and/or storage (or relying upon a Form B issued by the Strata Corporation).

• Seller representation – parking/storage 

  The Seller represents and warrants that there is(are) [number] parking stall(s) designated as stall(s) number [number], there is(are) [number] storage locker(s) [number] designated as locker(s) number [number], and there is(are) [numbers] designated bike locker(s) designated as locker(s) number [number], associated with, and available for use by the owner of, the strata lot.

  Considerations
  Applicable to strata lots where the parking stalls and/or storage lockers are not designated as limited common property, and where the Seller is providing assurances to the Buyer regarding the parking and/or storage (or relying upon a Form B issued by the Strata Corporation).

• Notification of changes in bylaws or rules

  The Seller will promptly provide to the Buyer a copy of any notice of a resolution to amend the bylaws of the strata corporation for the Property, or the bylaws of a section to which the strata lot belongs, after the date of this Contract.

  The Seller will promptly provide to the Buyer any information received by the Seller regarding any amendment to the rules or bylaws of the strata corporation for the Property, or rules or bylaws of a section to which the strata lot belongs, proposed or implemented after the date of this Contract.

• Non-compliant strata

  The Buyer acknowledges that the strata corporation for the Property may not be operating in compliance with the Strata Property Act and its regulations. Among other things, there may be no strata council elected, no strata meetings held, no annual budget approved, no strata fees being collected, no operating or contingency reserve funds established, and no financial or other strata corporation records maintained.

  The Buyer acknowledges that the Buyer has been advised to obtain independent legal advice regarding the non-compliance of the strata corporation before signing this Contract.

• Receipt of strata documentation

  The Buyer acknowledges that the Buyer has received, and is satisfied with copies of the following documents:

  1. A Form B Information Certificate from the strata corporation, or applicable section, dated [date], which includes the strata corporation’s rules, current budget, the owner developer’s Rental Disclosure Statement (if any), the most recent depreciation report (if any), and all other attachments referred to in the Form B, as may be applicable.
  2. The registered strata plan, any amendments to the strata plan, and any resolutions dealing with changes to common property.
  3. The current bylaws and financial statements of the strata corporation, and any section to which the Property belongs.
  4. The minutes of any meetings held in the past two years which includes strata council meetings, annual or special general meetings, and meetings of the executive of any section to which the Property belongs.
  5. The current insurance cover note or other evidence of insurance issued by the insurer explaining the strata corporation’s insurance coverage, coverage limits, expiration date(s), and deductibles.
  6. [insert any other documents provided to buyer]

  Considerations
  Carefully consider and ensure the list reflects the actual information and documentation provided to the Buyer. It is recommended that the Real Estate Professional recommends that such information is directly obtained from the strata corporation to ensure currency and accuracy.

• Assignment of proceeds from Buyer to Seller

  The Buyer hereby assigns to the Seller, for nominal consideration, all of the Buyer’s right, title and interest in any funds paid by the strata corporation to the Buyer as a result of [enter the reason for the payment such as the return of money assessed by a special levy, including relevant dates]. This section will survive the completion of the transaction contemplated in this Contract.

  Considerations
  This provision should be included in the Contract where there are specific amounts that will be returned to the strata lot owner post-closing, where such amounts should be returned to the Seller.

• Buyer credit for special levy

  If a special levy is approved by the strata corporation, or applicable section, after this Contract is entered into but before the Completion Date, the Seller will, on the Completion Date, credit the Buyer with the entire portion of the special levy that the Buyer is obligated to pay under the Strata Property Act.

  Considerations
  The reason that this section only applies to special levies that are approved after the Contract is entered into but before the Completion Date is because those are the special levies that the Buyer may be obligated to pay, but on which the Buyer does not have the right to vote.

  If approval of a special levy occurs before the Contract is entered into, then the Buyer can take that into consideration when establishing the price under the Contract. If approval of a special levy occurs after the Completion Date, the Buyer would be entitled to vote on the resolution to approve the special levy. In each case, the Buyer would have a degree of control in relation to such special levies and therefore would typically be responsible for payment.

• Buyer credit for special levy — negotiate portion

  If a special levy is approved by the strata corporation, or applicable section, after this Contract is entered into but before the Completion Date, the Seller will, on the Completion Date, credit the Buyer with _____% of the portion of the special levy that the Buyer is obligated to pay under the Strata Property Act.

  Considerations
  The reason that this section only applies to special levies that are approved after the Contract is entered into but before the Completion Date is because those are the special levies that the Buyer may be obligated to pay, but on which the Buyer does not have the right to vote.

  If approval of a special levy occurs before the Contract is entered into, then the Buyer can take that into consideration when establishing the price under the Contract. If approval of a special levy occurs after the Completion Date, the Buyer would be entitled to vote on the resolution to approve the special levy. In each case, the Buyer would have a degree of control in relation to such special levies and therefore would typically be responsible for payment.

• Holdback for proposed levies

  The Buyer and the Seller hereby irrevocably direct the Buyer’s Conveyancer to hold back a portion of the Purchase Price in the amount of $[amount], (the “Holdback”) until [date] (the “End Date”). The Buyer’s Conveyancer will pay to the strata corporation, or applicable section, out of the Holdback any special levies (or similar levies charged by the strata corporation or applicable section) (“Levies”) that are levied and payable after the Completion Date and before the End Date. On the End Date the Buyer’s Conveyancer will pay any remaining balance of the Holdback to the Seller if the Levies are payable in full before the End Date. On the End Date the Buyer’s Conveyancer will pay any remaining balance of the Holdback as follows:

  1. to the Buyer, that portion of the remaining balance of the Holdback required to pay any portion of the Levies payable after the End Date; and
  2. to the Seller, that portion of the remaining balance of the Holdback, if any, in excess of the amount required to pay any portion of the Levies payable after the End Date.

• Strata documentation to be provided

  Subject to the Buyer, receiving and being satisfied with, on or before [date], copies of the following documents:

  1. A Form B Information Certificate from the strata corporation, or applicable section, which includes the strata corporation’s rules, current budget, the developer’s Rental Disclosure Statement (if any), the most recent depreciation report (if any), and all other attachments referred to in the Form B, as may be applicable;
  2. The registered strata plan, any amendments to the strata plan, and any resolutions dealing with changes to common property;
  3. The current bylaws and financial statements of the strata corporation, and any section to which the Property belongs;
  4. The minutes of any meetings held in the past two years which includes strata council meetings, annual or special general meetings, and meetings of the executive of any section to which the Property belongs; and
  5. The current insurance cover note or other evidence of insurance issued by the insurer explaining the strata corporation’s insurance coverage, coverage limits, expiration date(s), and deductibles.
  6. [Include any other information, document, record or report the Buyer needs before being committed to buy. This may include any item of repair or maintenance, special levy, pending bylaw or rule changes, judgment or liability.]

  Immediately upon acceptance of this Contract by the Seller, the Seller hereby authorizes the [Seller’s/Buyer’s] agent, to request, at the [Seller’s/Buyer’s] expense, complete copies of the documents listed above from the strata corporation, or applicable section, or other source and to immediately, upon receipt, deliver the documents to the Buyer [or the Buyer’s agent]. This condition is for the sole benefit of the Buyer.

  Considerations
  Real Estate Professionals acting for the Buyer will want to carefully consider and ensure that this list is as fulsome as possible to provide the Buyer with all of the due diligence materials required by the Buyer.

Subject to Selling/Buying

• Confirmation of sale of Buyer’s property

  Subject to the contract for the sale of the Buyer’s property at [address] becoming fully unconditional on or before [date]. This condition is for the sole benefit of the Buyer.

  Considerations
  The Buyer has entered into a conditional contract to sell Buyer’s property before offering to buy the Seller’s Property.

  Use with Seller invoking time clause and notice from Seller to Buyer as may be appropriate, or may be used alone without Seller invoking time clause and notice from Seller to Buyer.

• Sale of Buyer’s property

  Subject to the Buyer entering into a contract of purchase and sale for the Buyer’s property at [buyer’s property address] on terms satisfactory to the Buyer and which contract of purchase and sale is or will become unconditional on or before [date] (the “Sale Condition Date”). This condition is for the sole benefit of the Buyer.

  Considerations
  If the Buyer needs to sell their property prior to completing the purchase of the Seller’s property, then under Item 3 of the Contract of Purchase and Sale insert a condition which allows the Buyer to make their purchase conditional upon selling their existing property.

  Consider providing reasonable protection to the Seller, for example by adding clauses allowing the Seller to continue to market or allowing Seller to terminate the Contract by invoking a time clause. Consider also adding the requirement for Buyer to provide updates on its marketing efforts.

• Buyer to provide update on status of Buyer’s property 

  The Buyer agrees to provide updates on the marketing and sale status of the Buyer’s property [within 7 days upon written request of the Seller OR every 7 days from the date this Contract is accepted by the Seller].

  [If the Buyer fails to provide such updates within the time contemplated herein, then the Seller may give the Buyer written notice to remove [this condition referenced above in [insert reference] OR all the Buyer’s conditions under this Contract] within 2 business days, and if the Buyer does not remove this condition within such time period, this Contract will terminate.

  Considerations
  This clause is intended to provide the Seller comfort that the Buyer is actively looking to sell the Buyer’s property and provides for a clause allowing Seller to terminate the Contract if the condition regarding the Sale of Buyer’s property is not removed by the Buyer within 2 business days.

  If using this clause, it should follow directly with the clause addressing the Sale of Buyer’s property.

  If acting for the Buyer, consider resisting the inclusion of the Seller’s ability to terminate the contract within 2 business days.

• Seller continuing to market and invoking time clause

  Notwithstanding anything herein to the contrary, the Seller may continue to market the Property for sale until all the Buyer’s conditions under this Contract are satisfied or removed.

  If the Seller receives another offer acceptable to the Seller in its sole discretion before [all the Buyer’s conditions are satisfied or removed OR [date]], then the Seller may give the Buyer written notice to remove all the Buyer’s conditions under this Contract within 2 business days after giving of such notice by the Seller. If the Buyer does not remove all of the Buyer’s conditions under this Contract within such time period, then this Contract will be terminated.

  Considerations
  This clause allows the Seller to continue to market the property and seek other offers. Note that prior to accepting another offer to purchase, the Seller should consider any liability under the existing contract until such time the existing contract is fully terminated.

  The Seller should be strongly advised to seek legal advice when considering any back-up offers.

• Time Clause Restrictions

  The Seller agrees not to invoke the time clause to the Buyer prior to [date].

  Considerations
  If acting for the Buyer, consider limiting the Seller’s ability to invoke the time clause before a certain date (e.g. some time date or period within the subject condition period) to allow the Buyer sufficient time to conduct its initial due diligence of the Property.

• Notice from Seller to Buyer

  TAKE NOTICE THAT:

  Pursuant to section [insert] of the Contract, the Seller hereby gives notice to the Buyer of the acceleration of the Buyer’s conditions under the Contract. The Buyer has 2 business days to waive or satisfy all of the Buyer’s conditions under the Contract failing which the Contract is terminated.

  Considerations
  This is a sample notice that should be revised to be consistent with the terms (including, any defined terms), timeline and notice requirements under the Contract. The notice should be issued and delivered in strict accordance with the Contract. The method of delivery should easily allow the parties to determine the date of notice and the delivery method.

• Seller unconditional purchase

  The Seller hereby discloses that the Seller has entered into a conditional Contract of Purchase and Sale of another residence (the “Conditional Contract”) which is subject to certain conditions with a current conditional removal date of [insert]. Accordingly, this Contract is subject to the Conditional Contract becoming fully unconditional by no later than [the foregoing condition removal date OR [insert outside date]. This condition is for the sole benefit of the Seller.

  Considerations
  This condition addresses a situation where a Seller is simultaneously purchasing another residence and does not wish to sell prior to having an unconditional contract to buy another residence.

  The Seller should be strongly advised to seek legal advice when entering into a conditional contract to buy another residence prior to the sale of the Seller’s property fully completing.

• Seller covenants regarding the conditional contract

  The Seller agrees to:

  1. provide the Buyer a copy of the Conditional Contract within 2 business day of accepting this Contract;
  2. promptly notify the Buyer in writing of any material changes to the Conditional Contract; and
  3. diligently pursue satisfaction of the conditions in the Conditional Contract.

  Considerations
  If acting for the Buyer, consider seeking additional covenants from the Seller in respect of the purchase of another residence.

  If this clause is included in the Contract, the Seller should consider whether there are confidentiality provisions in the Conditional Contract, or if there are any other confidentiality or privacy concerns, which would require redactions to the Conditional Contract (or which would preclude the Seller from providing the Buyer with a copy of the Conditional Contract).

• Seller conditional purchase

  The Seller hereby discloses its intention to buy another residence. Accordingly, this Contract is subject to the Seller entering into a contract to purchase another residence and that contract becoming unconditional on or before [date]. This condition is for the sole benefit of the Seller.

  Considerations

  This clause clarifies that the Contract is conditional on the Seller entering into a contract to purchase the second property by a certain date, failing which the transaction contemplated in the Contract will be voided.

  The Seller should be strongly advised to seek legal advice when entering into a conditional contract to buy another residence prior to the sale of the Seller’s property fully completing.

  If acting for the Buyer, consider seeking additional covenants from the Seller in respect of the purchase of another residence – see for example “Seller covenants regarding the prospective residences” clause.

• Seller covenants regarding the prospective residences

  The Seller covenants, represents and warrants that:

  1. the intention to purchase another residence is genuine and in good faith;
  2. the Seller’s ability to complete this transaction is not contingent on the completion of the purchase of another residence; and
  3. the Seller will provide updates to the Buyer about the acquisition process for another residence.

  Considerations
  This clause is intended to protect a Buyer from a situation where the Seller walks away from the transaction because it failed to complete on the purchase of the second property.

Title

• Title subject to encumbrances shown on title

  The Buyer acknowledges and agrees that on the Completion Date the Buyer will receive and assume title to the Property containing, in addition to any encumbrances referred to in Clause 9 (TITLE) of this Contract, all legal notations, charges, liens and interests set out in the copy of title attached hereto. The Buyer is aware that these legal notations, charges, liens and interests may affect the use and/or modification or development of the Property.

  Considerations
  This clause may be used when attaching as part of the Contract a copy of the title to the Property (including marking up title to remove those encumbrances that are not to remain) to better set out and indicate which encumbrances are to remain. This clause might be preferred where there are a significant number of encumbrances that will remain on title (e.g. strata lots/condominium titles).

  If the Property is a strata lot, obtain the common property record for the strata developments and append the same as part of the title to the Property.

  If acting for the Buyer consider reviewing the title charges with a lawyer prior to entering into the Contract.

• Specific assumption of title charges

  The Buyer shall execute and deliver to the Seller on the Completion Date any assignment and/or assumption agreements (including, without limitation, any notices or specific covenants required) relating to such legal notations, charges, liens and interests that the Seller may require, in such form and substances to satisfactory to the Seller in its sole and unfettered discretion. The Buyer acknowledges and agrees that the Seller may deliver and provide any such notices or agreement to any third party entitled to the benefit of the same.

  Consideration
  If acting for the Seller consider if any title restrictions require the Buyer to enter into a specific assignment and assumption agreement or require the Seller and/or the Buyer to provide notice of change of ownership.

  Consider if any third-party consents are required on title and, if so, strongly advise the Seller to seek legal advice regarding the same and consider a subject condition in favour of the Seller to seeking consent(s) or approval(s).

• Title subject to listed encumbrances

  On the Completion Date, in addition to the encumbrances set out in section 9 of the Contract, title to the Property will be subject to the following charges, liens and interest:

  1. [List other encumbrances and legal notations to remain on title];
  2. […]; and
  3. […],

  all as more particularly described in the copy of the title search that is attached to this Contract.

  Considerations
  This clause and the “Title subject to encumbrances shown on title” clause are similar.

  This clause may be used if the Real Estate Professional wishes to include a list/description of encumbrances that are to remain (rather than mark up the attached title as would be done if using the “Title subject to encumbrances shown on title” clause).

  If there are legal notations that are to remain on title, those notations should be listed in the clause.

  If the Property is a strata lot, obtain the common property record for the strata developments and append the same as part of the title to the Property.

• Encumbrances not shown on title  

  On the Completion Date, in addition to the encumbrances set out in section 9 of the Contract and those shown in the title search that is attached to this Contract, the Property will also be subject to the following encumbrances: [List other encumbrances that may affect the Property but that are not shown on title to the Property.]

  Considerations
  If the Seller is aware of any additional encumbrances that may affect the Property but that are not shown on the title search (e.g. a grant of a right of way to a statutory authority that is not yet registered, an unregistered easement agreement with a neighbouring property), they should be specifically set out in the Contract as encumbrances.

  Consider advising the parties to seek independent legal advice on proper drafting and acknowledgements required in these circumstances.

• Buyer satisfaction with title

  Subject to the Buyer being satisfied in its sole discretion, on or before [date], with the title, encumbrances and legal notations affecting or benefitting the Property. This subject is for the sole benefit of the Buyer.

  For greater certainty, on the Completion Date, in addition to the encumbrances set out in section 9 of the Contract, title to the Property will be subject to the encumbrances and legal notations expressly indicated to remain on title in this Contract, including those shown in the title search that is attached to this Contract.

  Optional - Subject to the Buyer being satisfied in its sole discretion, on or before [date], with any charge, agreement, encumbrance or other feature, whether registered or not, that reasonably may affect the Property’s use or value. This subject is for the sole benefit of the Buyer.

  Considerations
  The optional clause may be used where the Buyer desires a broader condition regarding its satisfaction with title matters. If this optional clause is incorporated into the Contract, it will provide a subject condition in favour of the Buyer regarding unregistered charges, liens, interests or other encumbrances or agreements affecting the Property’s use or value.

• Buyer advised to seek legal advice regarding title

  The Buyer is aware that the charges, liens and interest affecting title to the Property may affect the value or Buyer’s use of the Property, and the Buyer acknowledges and agrees that it has been advised to seek independent legal advice with respect to all encumbrances affecting the Property prior to entering into this Contract.

  Considerations
  If acting for the Seller, consider seeking this acknowledgment from the Buyer.

  If acting for the Buyer, consider reviewing the title charges with a lawyer prior to entering into the Contract.