Brian Madigan LL.B., Broker
BRMadigan@iSourceRealEstate.com

RE/MAX West Realty Inc.,
Brokerage
Independently owned and operated

96 Rexdale Blvd. 
Toronto, Ontario 


Phone: 416-745-2300
Toll Free: 1-888-507-0817

 

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Notice of Fulfillment: Brian Madigan’s ANNOTATED version Explained

March 19, 2017 - Updated: March 19, 2017

 

Notice of Fulfillment: Brian Madigan’s ANNOTATED version Explained

 

The document which follows is an annotated version of the Notice of Fulfillment, with commentary in Italics. That portion not in Italics is part of the Form itself. The comments represent my own views.

 

 

Notice of Fulfillment of Condition(s)

 

OREA Form 124

BUYER:.......................................................................................................................

SELLER:.....................................................................................................................

REAL PROPERTY:....................................................................................................................................................................................................................

 

At the outset, there are some preliminary matters to get out of the way. First, the name of this document. It’s called a Notice of Fulfillment. Second, the Buyer is identified. Third, the Seller is identified. Fourth, the property which is the subject matter of the Agreement is identified.

 

This portion could be shortened somewhat. The full legal description is not required. A short version will do.

 

In accordance with the terms and conditions of the Agreement of Purchase and Sale dated the ............................ day of..........................................., 20..............., regarding the above property, I/We hereby confirm that I/We have fulfilled the condition(s) which read(s) as follows:

 

This is the operative part of the document. The key words are “confirm that I/We have fulfilled the condition(s). That’s it. That’s all we need.

 

By way of an explanation here, I am going to give a couple of examples. Let’s assume that we have conditions in favour of the Buyer for home inspection, insurance and financing:

 

Those conditions might be set out as follows:

 

This Offer is conditional upon the inspection of the subject property by a home inspector at the Buyer’s own expense, and the obtaining of a report satisfactory to the Buyer in the Buyer’s sole and absolute discretion. Unless the Buyer gives notice in writing delivered to the Seller personally or in accordance with any other provisions for the delivery of notice in this Agreement of Purchase and Sale or any Schedule thereto not later than _____ p.m. on the _____ day of __________, 20_____, that this condition is fulfilled, this Offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction. The Seller agrees to co-operate in providing access to the property for the purpose of this inspection. This condition is included for the benefit of the Buyer and may be waived at the Buyer’s sole option by notice in writing to the Seller as aforesaid within the time period stated herein.

 

This offer is conditional on the Buyer arranging insurance for the property satisfactory to the Buyer in the Buyer’s sole and absolute discretion. Unless the Buyer gives notice in writing delivered to the Seller personally or in accordance with any other provisions for the delivery of notice in this Agreement of Purchase and Sale or any Schedule thereto not later than _____ p.m. on the _____ day of __________, 20_____, that this condition is fulfilled, this offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction. The Seller agrees to co-operate in providing access to the property, if necessary, for any inspection of the property required for the fulfillment of this condition. This condition is included for the benefit of the Buyer and may be waived at the Buyer’s sole option by notice in writing to the Seller as aforesaid within the time period stated herein.

 

This Offer is conditional upon the Buyer arranging, at the Buyer’s own expense, a new _______________ Charge/Mortgage satisfactory to the Buyer in the Buyer's sole and absolute discretion. Unless the Buyer gives notice in writing delivered to the Seller personally or in accordance with any other provisions for the delivery of notice in this Agreement of Purchase and Sale or any Schedule thereto not later than _____ p.m. on the _____ day of t, 20_____, that this condition is fulfilled, this Offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction. This condition is included for the benefit of the Buyer and may be waived at the Buyer’s sole option by notice in writing to the Seller as aforesaid within the time period stated herein.

 

As you can appreciate, that’s quite a mouthful. It takes up a lot of space. These are the exact clauses that appeared in the Agreement of Purchase and Sale.

 

However, to a large extent, it’s “overkill”.

 

Consider another approach. This time, a little shorter! Just three steps:

 

1)Delete the words “….which read(s)”,

 

2)So, we are left with “….condition(s) as follows:”

 

3)Now, simply name them, inspection, insurance and financing.

 

Everyone in the world should be able to figure out what clauses you mean when you are referring to the inspection, insurance and financing conditions, unless, in fact you had two of each, in which case, I am suggesting that you go back to the first approach and put the entire condition in the Notice of Fulfillment verbatim. If you have three different conditions and they are all easy to find in your document, then you should have no problem if you simply name them. Courts have been doing this for years. They are really quite good at it. They have lots of experience.

 

All other terms and conditions in the aforementioned Agreement of Purchase and Sale to remain unchanged.

 

This section is actually superfluous, but it’s very traditional. There are no other changes. In this case, it’s really not necessary. It’s usually a one sided document. The Buyer is giving “notice” to the Seller. The Seller doesn’t have to like it or agree to it.

 

For the purposes of this Notice of Fulfillment of Condition, “Buyer” includes purchaser, tenant, and lessee, and “Seller” includes vendor, landlord, and lessor, and “Agreement of Purchase and Sale” includes an Agreement to Lease.

 

This part of the document simply expands the definitions in terms of applicability, so that it might be used just as well for leases as it is for agreements.

 

DATED at.............................................................., Ontario, at ...............a.m./p.m., this.......................day of..................................... 20.......... .

 

SIGNED, SEALED AND DELIVERED in the presence of:   IN WITNESS whereof I have hereunto set my hand and seal:

 

_________________                        _____________ (seal) Date ______________

Witness                                             Buyer/Seller

_________________                        _____________ (seal) Date ______________

Witness                                             Buyer/Seller

 

This final section of the Notice is evidence of the execution of the document. You will notice that there are two lines and there are references to Buyer/Seller.

 

This calls for both Buyers to sign, namely John Smith and Mary Smith. They are both saying that they have fulfilled all three conditions.

 

The Sellers don’t sign on the next line. The notice was given by the Buyers and they used both lines.

 

Now, you will appreciate that this same document could be used for Sellers giving notice of the Fulfillment of a Seller’s condition, like finding another house, or getting out of a mortgage with a limited penalty etc.

 

There is room for a witness to sign, but naturally the document is firm and binding without a witness.

 

This is a Notice going one way, from one party to another. The recipient doesn’t sign.

 

__________________________________________________________________

 

Receipt acknowledged at.......................a.m./p.m., this......................................... day of...................................................... 20..................... by:

Print Name:......................................................Signature:....................................................

 

This additional part which appears below the line is really not part of the Notice of Fulfillment. It is an Acknowledgement.

 

It could be a separate document but it has been added to the end of this document. It says that the Seller got it. There is a time and a date.

 

I have absolutely no idea why for the first time in any documents, the Seller is called upon to print his name. If indeed the Seller were to personally “print” his own name, that’s actually a “signature”. Nevertheless, the Seller is called upon to affix their signature. I would have thought that this might be a good spot for a witness, but I suppose the authors thought otherwise.

 

Note: it should be noted that there is a slightly different procedure for Notices of Fulfillment when we are dealing with True Conditions Precedent. For ordinary Conditions Precedent like inspection, insurance and financing, the procedure is as set out here. It should also be noted that a Waiver could be signed instead of the Notice of Fulfillment. It’s the Buyer’s judgment call which to use. The Seller does not have the right to insist that one document be used over the other. Uncertain? Have another look at those clauses!

 

Brian Madigan LL.B., Broker

www.iSourceRealEstate.com


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Brian Madigan LL.B. Broker

RE/MAX West Realty Inc. Brokerage

Independently owned and operated

96 Rexdale Blvd. , Toronto Ontario,

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