Counting the Days to Put the Deposit into the Brokerage’s Trust Account
By Brian Madigan LL.B.
Question
A brokerage must deposit the cheque with 5 business days. When does the five business days begin? The APS states that the buyer has 24 hrs to get the deposit to the deposit holder. Is the 24 hrs in addition to or included in the 5 days....?
Consider
Offer confirmed by seller Monday at 6pm
Buyer Rep meets buyers gets acknowledgement signed and gets deposit check at 8pm on Monday
Answer:
There are two separate and distinct issues here.
Agreement of Purchase and Sale ~ Buyer’s Obligation
That deposit must be delivered (buyer’s agent’s responsibility) “within 24 hours of acceptance”. There is a provision which states that Time is of the Essence”. That means, time are exact, and must be adhered to, no exceptions.
So, “within” really means 23 hours and 59 minutes (and I suppose 59 seconds).
In your example, that deposit cheque must be delivered by 5:59:59 pm on Tuesday. That’s the deadline.
Deposit Into Bank ~ Deposit Holder’s responsibility
This is an obligation under the Act and regulations imposed upon deposit holders who are registrants.
So, let’s assume that is the listing brokerage in your example.
The trigger to their obligation arises when the “RECEIVE”, the cheque. If they never get it then there is no obligation to deposit it.
The time period is 5 business days. This is calculated by excluding the first day and including the last day, skipping over Saturdays, Sundays and Statutory holidays.
The time the buyer’s agent got the cheque, namely 8:00 pm (Monday) doesn’t matter. That issue is irrelevant to our calculations.
Assume that the cheque was delivered to the listing brokerage on Tuesday (anytime, including before or after 5:59:59 pm, the last day in order to comply would be:
0 Tuesday
1 Wednesday
2 Thursday
3 Friday
0 Saturday (not a business day)
0 Sunday (not a business day0
4 Monday
5 Tuesday
The deposit should appear at the latest in the brokerage’s trust account on the second Tuesday.
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 RE/MAX West Realty Inc., Brokerage 416-745-2300.
www.OntarioRealEstateSource.com
Comments(4)