What Does Completion Mean in the Agreement?

What Does Completion Mean in the Agreement?

Ontario Real Estate Source

By Brian Madigan LL.B.

Everyone wants to know when the deal will close. So, it’s set out in the “completion date clause” which is the second numbered paragraph in the agreement.

Let’s have a look at the standard form agreement of purchase and sale and see what it says in the “completion date” clause:

“2. COMPLETION DATE: This Agreement shall be completed by no later than 6:00 p.m. on the _________day of _____________ . Upon completion, vacant possession of the property shall be given to the Buyer unless otherwise provided for in this Agreement.”

This clause deals with two matters, namely the time limits and vacant possession, as a consequence following closing.

Time Limit. The time limit is specific. The transaction is to be completed no later than 6:00 pm on a specified date. It may of course be completed earlier with the consent of the parties.

Now, there is a little problem with the 6:00 pm deadline. It’s an hour too late. The Registry offices are available for registration until 5:00 pm. The intention is to have the agreement completed while the necessary searches and registration take place in escrow.

Twenty years ago, there was no hourly time limit, just a date. Registration could take place until 4:30 pm which was the time that the offices closed. Some Judges permitted an additional day for closing and registration where it could be demonstrated that the closing funds were available later than 4:30 pm on the closing day. Hence, the need to come up with a time, since this just caused havoc.

Registry offices stayed open to 6:00 pm or sometimes 6:30 pm on the major closing dates of the year, like May 31st and June 30th, particularly if they were Fridays.

In any event, the 6:00 pm deadline is something of a misnomer and an unintended consequence. The closing should be “within the time permitted for registrations on the day of closing”. In some cases, the time limit is changed to “5:00 pm”.

However, rarely does this issue ever present a problem, but it does provide an interesting opportunity for someone who does not wish the transaction to close.

Consequences. It does seem rather odd that the clause dealing with the date, also deals with the consequences of a successful closing of the transaction.

In this case, “upon completion” meaning the time immediately thereafter, “vacant possession” shall be given to the buyer. That means that the buyer shall have all the legal rights associated with ownership and occupation of the premises. There will be no over-holding tenant and the seller will have removed all of his possessions.

Vacant does not mean “clean”. If the buyer wants the seller to clean the premises prior to the change of ownership, then that should be mentioned in the agreement.

In that regard, there are two basic standards:

• Broomswept and tidy condition
• Professionally cleaned and sanitized

If the buyer fails to specify either of these two standards, then the buyer takes his chances. In a multiple offer situation, never mention this and just understand that you will need a cleanup crew.

The sentence goes on to provide “…… unless otherwise provided for…..”. So, if there is a tenant, amend the standard form. If the owner is permitted to occupy the premises for a few additional days, then this should be noted.

Make sure that the owner does not acquire “tenant status”, the former owner’s occupancy should arise out of the agreement of purchase and sale.

There is provision for the owner to give notice to vacate to tenants on behalf of the new owner under the Residential Tenancies Act.

COMMENT

The completion date is the deadline that all parties should have in mind in setting up the due diligence agenda and schedules. There is no extension unless both parties agree. As written, the standard form provides an interesting issue for a buyer who wishes to delay and not close, and an interesting issue for a seller who has failed to vacate.

Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through Royal LePage Innovators Realty, Brokerage 905-796-8888
www.OntarioRealEstateSource.com