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

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

96 Rexdale Blvd. 
Toronto, Ontario 


Phone: 416-745-2300

Cell: 647-404-8150 
Toll Free: 1-888-507-0817

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Writing Clauses 25 Topics

October 2, 2019 - Updated: October 2, 2019

Writing Clauses Course: 25 Issues
 

This is a list of topics and clauses to be drafted :
 

  1. Vacant Possession
  2. Chattels Warranty
  3. Swimming Pool in the Winter
  4. Water Leakage
  5. Adding Party
  6. Boundary Dispute
  7. Second Unit Legal Non-Conforming
  8. Waterfront Access
  9. Driveway Access
  10.  Mutual Driveway Confirmation
  11.  Septic System
  12.  Well Water
  13.  Taxes Appealed
  14.  Tenant Takeover
  15.  Retaining Wall Support
  16.  Fence Encroachment
  17.  Contaminated Soil
  18.  Estate Probate
  19.  Deposit
  20.  Land Description
  21.  Acquisition of Second Property
  22.  Capricious Walk Away
  23.  Vacant Lot Risk
  24.  Boathouse, Dock, and Deck Location
  25.  Seasonal Flooding

 

  1. Vacant Possession
     

You are acting for Buyer John Smith who has seen a suitable property on Georgian Bay which would serve as a summer home for his family. He just received a promotion at work and the boss will be retiring. He wants to host a retirement party for the boss and announce his promotion at the same time in a casual atmosphere. The summer home would be perfect on Monday, 1 July 20__.
 

This deal has to close on Friday, 28 June 20__. It can’t be put over to Tuesday. It absolutely MUST close on time. He will have some guests arriving Friday night, the weekend to get the property ready for the party and, of course, Monday for the party.

 

If the deal can’t be closed on time, he would just as soon keep looking for another property over the summer which might be a better vacation home for the family. They are hard to find. You have been out looking with him for the last two summers.
 

What type of a clause would you place in the Offer? Please draft one which would address the issues.
 

  1. Chattels Warranty
     

You are acting for Mary and John Smith, first time homebuyers. You have finally found the perfect condominium apartment for them. It’s an Assignment. It’s never been occupied which is very appealing and it contains brand new appliances: fridge, stove, dishwasher and microwave which have never been used. They find this to be a major bonus and because of this, want to put in an Offer.
 

What type of a clause would you place in the Offer? Please draft one which would address the issues.
 

  1. Swimming Pool in the Winter
     

Robert and Mildred Zimmerman are “trade up” purchasers. You have located a beautiful property with a pool, but it’s January. The pictures of the pool from the summertime are fantastic. They love the idea of the pool and know that they are really not paying full price for the pool. The pool is about 20 years old and was closed by the homeowner. They are looking to close the end of March because that’s what the Seller wants, but will the pool work in May?
 

What type of a clause would you place in the Offer? Please draft one which would address the issues.

 

  1. Water Leakage
     

Paul Hewson, your client has just attended the home inspection with you. The home inspector indicated that there has been flooding in the past in the basement. Apparently, upon inquiry you found that the Listing Agent is not surprised and the Seller will be agreeable to fixing the problem. The Home Inspection clause is due tomorrow.
 

What type of a clause would you place in the Offer/Amendment? Please draft one which would address the issues.

 

  1. Adding Party
     

William Dafoe and Kathleen Dafoe are first time homebuyers. They have found a very suitable place. It’s perhaps just a little out of their price range. As it turns out, that’s true. The Bank wants William Dafoe Sr. to buy this property as well, and then they will approve the mortgage.
 

What type of a clause would you place in the Offer/Amendment? Please draft one which would address the issues?

 

  1. Boundary Dispute
     

You are acting for John Smith and Mary Smith, third time homebuyers looking for an upscale property in a well-established, expensive, Toronto neighbourhood . The west boundary of the property doesn’t appear to be straight. One neighbour’s backyard and fence appear to be over the lot line by about 6 inches and runs for 50 feet. You speak to the Listing Agent who confirms that there have been issues with the neighbour.
 

What type of a clause would you place in the Offer (if any)? Please draft one which would address the issues?

 

 

  1. Second Unit Legal Non-Conforming
     

Robert Johnson is an experienced investor. You are acting on his behalf and located a property which has been divided years ago into two separate units. The Listing Agent has included a note on the listing that the “Seller does not warrant the retrofit status”.
 

What, if anything do you do? If you were to include a clause in the Offer, what would it say?
 

  1. Waterfront Access
     

Robert Smith is your buyer client and he wants a waterfront cottage, not nearby the water, not close to the water, but waterfront!
 

You have found a property and it’s “right on the water”. It’s a small lake, in the Muskoka area which was the subject of substantial Spring flooding in 2017 and 2019.
 

Right now, the dock is in place, and apparently there is a small beach which would be ideal for his family, but it’s “under the water”, and all you have from the Listing Agent is pictures. Robert would be inclined to hold onto this property for decades.
 

Are there any clauses that you might consider for Robert’s protection? If so, please draft one.

 

  1. Driveway Access
     

You have found an excellent waterfront property for your client Charles Taylor. It is located on Lake Ontario in Prince Edward County. It looks like the farmer created 5 waterfront lots on the lake. There is a long driveway down through the roughly 200 acre farm from the highway, then, it runs across the rear of the five lots. Charles’ lot would be the last one, lot 5.  You are concerned about access and maintenance. You checked GeoWarehouse and there was no registered easement.
 

In order to protect Charles what would you be looking for? What type of clause, if any, would be suitable? If you want to add something to the standard form, please draft one.

 

  1.   Mutual Driveway Confirmation
     

William Naismith wants to purchase an older house in the City of Toronto. It looks like there is one driveway running between two properties. The two adjacent lots are about 25 feet wide each. The driveway runs up between the two houses and then appears to widen so as to approach the two separate garages at the rear of the properties.
 

The Listing Agent is brand new, this is his first listing, and he is not helpful in responding to any questions. There was no mention of the driveway on MLS. In response to your questions, he simply said it was “shared”.
 

What particular issues do you see? Do you want to add something to the Offer? If you do, please draft that clause.
 

  1.    Septic System
     

William Weston, your Buyer client is from Toronto. He wants to purchase a rural property. He is not familiar with septic systems whatsoever. The Listing Agent is not particularly helpful and has simply indicated that there have not been any issues.
 

Is this sufficient? Do you want to include a clause which might be of some further benefit to your client? If so, what would that be?
 

  1.    Well Water
     

William Weston has selected a particular rural property. An elderly gentleman has lived on the property alone for years. William would be moving there with his wife and 5 children.
 

The Listing Agent can only tell you that the supply of water from the well has been adequate to meet the needs of the Seller.
 

What issues do you see? Is there a clause which you would like to include in an Offer? How would you draft such a clause, if one is to be included?

 

  1.    Taxes Appealed
     

You are acting for the Buyer, John Butler and you see a note on the MLS that the Owner has appealed their taxes for 2017, 2018 and 2019. The matter is still unresolved and the matter is apparently going to Court.
 

How would you handle this? What are the risks? Is the existing Agreement sufficient? What clause would you add, if you needed one?
 

  1.    Tenant Takeover
     

Your client, Albert Leonard is about to purchase a property. You find a very suitable property but it has a Tenant in the basement. Albert has sufficient funds to purchase the property without the income from the Tenant. However, if he “likes” the Tenant, then he is prepared to let him stay on. The Tenant is month to month at this point.
 

What clause might you add for Albert’s protection? Please draft the appropriate clause for inclusion?
 

  1.    Retaining Wall Support
     

Jonathan Lowry is your client and you have been looking for properties in this neighbourhood for about six months. Finally, you have a very suitable property, but there is a retaining wall which looks like it’s fallen over at the end of the lot. You are not sure where the property line is located and apparently, there’s no survey available which would show the location of the retaining wall. The property is an estate sale, so there doesn’t seem to be anyone who can provide any background information. It is clear that the retaining wall is no longer holding back the earth from the higher elevation lot at the rear.
 

Do you see any possible issues here? If so, what type of clause would you draft for inclusion in an Offer?

 

  1.     Acquisition of Second Property
     

Randy Rupert is your client, the Buyer. There is a waterfront property which he is about to purchase. There is a driveway which runs across another property owned by the same Owner. The waterfront property is worth about $600,000.00. The other property with highway frontage is a rental and it would be worth about $200,000.00; only problem is that it is not listed for sale.
 

Randy wants them both. How would you structure the deal? How would you protect Randy? Are there any clauses you might consider? If so, what are they?
 

  1.    Capricious Walk Away
     

Ryan O’Toole is your client. He travelled out of Toronto on business and ran across a perfect property on Lake Muskoka which he believes that his wife Jaine would love. However, Jaine is very, very choosy, and she might not like this house or the property or the location.
 

Ryan wants to put in an Offer to tie this property up for a few days so that he can bring his wife up to have a look. If for whatever reason, she doesn’t like it, he wants to be able to walk away. Ryan is a lawyer and is familiar with Bhasin v. Hrynew, so he wants his rather hefty deposit back, if Jaine says “no”.

 

Are you able to draft something which will get around this case? How would you approach the situation? What clause or clauses would you propose to protect Ryan and ensure the return of his $50,000.00 deposit should Jaine not be enamoured with this place?
 

  1.    Vacant Lot Risk
     

Gordon Sumner is your client and owns a remote, rural property. Over the last two decades he has only been there on three occasions. It’s about 100 acres, partially wooden with a stream running through it and quite rocky. There’s also lots of wildlife. The property is located north of Algonquin Park.
 

He would want to make sure that there is no personal liability upon him, if anyone were to look at the property. There’s no insurance in place.
 

What, if anything, would you put in the Listing Agreement, and/or the MLS in order to protect Gordon?
 

  1.    Boathouse, Dock, and Deck Location
     

Reginald Dwight is a Buyer client of yours. You appear to have found the ideal property on Lake Rosseau. The Boathouse itself is several thousand square feet and there is a three bedroom apartment above it. The dock is expansive and there is a rather huge deck adjoining the Boathouse to a wooden staircase with access to the main house.
 

Are there any particular issues here? How will you be protecting Reginald? Is there a clause or clauses that would help? If so, please draft them.
 

  1.    Seasonal Flooding

Elmer Phan is interested in purchasing a cottage property in the Kawarthas. There has been rather substantial Spring flooding for three years in a row. This year the water level reached the cottage itself and ran up the side by about three feet. Fortunately, there is no basement in the cottage. Elmer wants waterfront, but naturally he doesn’t want to be under water.
 

Do you have any clauses which would afford him some protection in an Offer? If so, please draft them.
 

  1.    Fence Encroachment
     

You are acting for John Mathews who is about to put in an Offer on a downtown Toronto property. It is clear that a privacy fence was erected by one of the previous owners of the property. It looks like the privacy fence has scooped in about another 14 inches from the neighbour’s property. The rear deck has been built right out to the privacy fence.
 

Is this a problem? Should anything be done? Do you need to say anything? If you identify a problem, would a clause help? If so, what would that clause say?

 

  1.    Contaminated Soil
     

Your client Jordan Scott wants to purchase a property right in the same neighbourhood as his childhood home. The property is immediately adjacent to a small retail strip plaza which is located on a major street. As a child, Jordan remembers the operator of the Cleaners in the plaza dumping liquid at the back fence. This went on daily for decades and he is concerned about contaminated soil.
 

What can you do here? The present Owner is oblivious to this risk. When he purchased the property, the Cleaners had left the plaza, so he is completely unaware of any contamination risks.
 

How do you protect Jordan in this situation? Is there a particular clause that you would use in an Offer? If so, what would it say?
 

  1.    Estate Probate
     

An elderly gentleman passed away, and you are acting for Roberto Alomar who would like to acquire the property. The real estate market is escalating rapidly. Roberto is located in a condo which he is renting from an investor. He can stay as long as he likes. However, he wants to “invest” himself in Toronto real estate. He doesn’t want the deal to fall through, and if the Estate needs more time to get ready for the closing, he is willing to give it. He doesn’t want the deal to fall through and find himself buying this same type of property for more money later.
 

Do you have a clause that might help Roberto in the circumstances? If so, please draft it.
 

  1.    Deposit
     

Frank Potter is now retiring. Strangely, the rural area where he is interested, has had numerous multiple Offers recently. The Listing Agent confirmed that there were lots showings and a great deal of interest. In fact, they set up Tuesday as “offer day”. The property is in a “low deposit” area. Frank just sold his own house in downtown Toronto for one million dollars with a $50,000.00 deposit. He would like to place a very large deposit on this deal. He feels that his Offer would then be chosen over the competition with others using $1,000.00 to $5,000.00 deposits. Naturally, he wants the money in the deal, but if the transaction doesn’t go through for one reason or another, he doesn’t want to risk the full $50,000.00.
 

How would you structure this deal? Is there anything you can do to protect Frank? If so, what type of clause would you propose?

 

  1.    Land Description
     

Brendan, your Buyer client has found an old farm property in a rural area. It’s the farmhouse without the land. The property looks like it’s going through a severance. There have  actually been numerous applications gone back for over 20 years with different lawyers and different surveyors. The intention has always been to cut off the corner, about 2 acres with a farmhouse, garage, pool and the barn from the rest of the acreage, being about 98 acres. Over the years, there have always been slightly different descriptions, sometimes the acreage was Part 1, and sometimes it was Part 2. That all depended upon the surveyor and the lawyer at the time. Nothing is registered on title.
 

The farmhouse property would be worth about ten times the value of the acreage.
 

How would you approach this situation to protect Brendan? Is there a clause you would suggest that might clarify matters? If so, please draft it.

 

 

Brian Madigan LL.B., Broker

www.iSourceRealEstate.com


Tagged with: drafting clauses agreements amendments offers
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Brian Madigan LL.B. Broker

RE/MAX West Realty Inc. Brokerage

Independently owned and operated

96 Rexdale Blvd. , Toronto Ontario,

Phone: 416-745-2300

BRMadigan@Rogers.com

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