The Agreement is About Schedules
The standard form OREA Agreement of Purchase and Sale is all about Schedules. Here’s what the 2016 version states on the first page:
SCHEDULE(S) A..........................................................................................attached hereto form(s) part of this Agreement.
The Agreement in its entirety comprises 5 pages. The rest of the document consists of various schedules. Disclose everything. Make sure the parties know what they are dealing with. Attach all the relevant documents. That makes the deal easier to manage.
The spacing in the “empty lines” in the five pages is short. There is no room for much to be added. That’s the purpose of the schedules. You will appreciate that it would be somewhat foolhardy to look at the document, conclude that there’s not much room on the line, and therefore omit the information altogether.
New home builders and condominium developers add extensive schedules to their standard forms, sometimes 100 pages or more. They err on the side of caution. Disclose! That’s a good practice to follow.
This is a significant distinction between the current standard form agreement of purchase and sale, and documents in use 15 or 20 years ago.
First, it is anticipated that there will be at least one schedule to every agreement of purchase and sale, since that contains the provision about the payment of the balance of the purchase price.
In fact, all other terms, conditions and provisions of the agreement which are particular to the transaction at hand are to be contained in a schedule, usually designated as Schedule A. The balance of the standard form is generic.
Other schedules should be identified and attached. These would include, among other things:
1. A description of the property
2. A copy of a survey
3. A mortgage statement
4. A provision concerning interest earned upon the deposit
5. A list of repairs, or defects etc.
6. A list of Chattels included
7. A list of Fixtures excluded
8. A list of rental items
9. A copy of any rental contracts to be assumed
10. A copy of a lease
11. A copy of a restrictive covenant on title
12. The Seller Property Information Statement (if advisable)
13. A copy of any transferrable warranties
14. A copy of a Confidentiality Agreement (if appropriate)
15. other relevant disclosure items
The method of operating conveniently with the document is to attach relevant information by way of a schedule or series of schedules.
Each such schedule should be identified and marked accordingly, usually commencing with B, then C and so on.
A further breakdown of attachments can be made using an Appendix or Exhibit as the category.
The careful practitioner will make a very effective use of schedules in the creation, drafting and negotiation of an agreement. It is particularly important to demonstrate whether a matter is part of the agreement or not.
If it is not part of the agreement, then contract remedies are not available. However, there may be remedies available in tort arising from misrepresentations or errors.
Brian Madigan LL.B., Broker