Understanding the Delivery of Notices under the Agreement of Purchase and Sale
Sometimes, agents can run into difficulty giving or receiving proper Notice pursuant to one or more of the provisions contained in the standard Form Agreement of Purchase and Sale.
This is important for the delivery of:
- Notices of Acceptance,
- Notices of Fulfillment,
- Amendments, and
- Other Notices.
The Provision for Notice
This is the current 2016 version:
The Seller hereby appoints the Listing Brokerage as agent for the Seller for the purpose of giving and receiving notices pursuant to this Agreement.
Where a Brokerage (Buyer’s Brokerage) has entered into a representation agreement with the Buyer, the Buyer hereby appoints the Buyer’s Brokerage as agent for the purpose of giving and receiving notices pursuant to this Agreement.
Where a Brokerage represents both the Seller and the Buyer (multiple representation), the Brokerage shall not be appointed or authorized to be agent for either the Buyer or the Seller for the purpose of giving and receiving notices.
Any notice relating hereto or provided for herein shall be in writing.
In addition to any provision contained herein and in any Schedule hereto, this offer, any counter-offer, notice of acceptance thereof or any notice to be given or received pursuant to this Agreement or any Schedule hereto (any of them, “Document”)
shall be deemed given and received
when delivered personally or
hand delivered to the Address for Service provided in the Acknowledgement below, or
where a facsimile number or email address is provided herein, when transmitted electronically to that facsimile number or email address, respectively, in which case, the signature(s) of the party (parties) shall be deemed to be original.”
Unless deleted, the Seller’s agent has authority.
Unless deleted, the Buyer’s agent has authority.
There is no such authority implied if the Seller or the Buyer, as the case may be, are receiving "customer service".
There is no appointment where one Brokerage is representing both the Seller and the Buyer (multiple representation).
The notice is to be in writing. This would include paper, fax, email and texts.
The notice provision applies to both the Agreement and the Schedules.
The notice may be given personally.
The notice may be hand delivered to the address on the Acknowledgement.
The notice may be given by fax or email.
While a “text” qualifies as being in writing, it is not authorized as a method of delivery for the specified Notices under the Agreement.
Frequently, there is no “address for service” in the Acknowledgement section. With transactions condensed in terms of time, sometimes the first notice needs to be given before the Acknowledgement that the other party has their copy of the Agreement, has been received. So, that matter needs to be speeded up, in many cases.
Also, you need to check the Confirmation of Representation and Co-operation. Is the other party receiving customer service? If so, you may not be able to give Notices to the Brokerage. Have they provided you with a suitable and convenient method for the delivery of notices?
Generally, you can always FIND the Brokerage. Locating either the Buyer or the Seller could prove to be much more difficult.
If no one is at home, in most situations from the perspective of either the Seller or the Buyer, one would be VERY reluctant to put in that municipal address. Notices could be left there. Offices could be used, but they are frequently closed over the weekend, at times when many notices might be due. As a result, the Notices are not picked up when they should be, but they are still proper Notices and they either start or stop the clock which can be very important.
Consequently, it could be risky or foolhardy to include such a municipal address.
The same thing could easily be said for fax numbers. As a technology that has come and gone, faxes were popular starting 30 years ago, but email has taken over. The Parties if they only occasionally use their fax machines, should ensure that this is the Brokerage’s number, where the machines are reliable, maintained and monitored.
There are three (3) choices for email addresses:
- The Brokerage,
- The individual sales representative,
- The Party themselves.
Needless to say, this needs to be an active email address, unlimited in terms of receipt (no maximums), and monitored regularly, including the “spam box”.
I should point out here that there are many real estate agents using a TREBNET email, but they are over their limits, meaning they will not actually receive any further emails, until the empty their Inbox. Legally, the notice was given when “transmitted”, not the time when the recipient finally retrieved access to their account.
You will see that the big risk is the “hand delivered” notice to the “address”. That may not be a good choice. The solution could be to omit the address, or alternatively insert the Brokerage’s address. The latter could prove troublesome for the Brokerage since an envelope might be addressed: Mr. Sam Seller, or Mr. Bill Buyer delivered to the address of ABC Brokerage. Reception might conclude that there is no such person here, and we can’t open someone else’s mail.
So, be careful with the Notices provision, it can be tricky and get you in trouble!
Brian Madigan LL.B., Broker