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Minor Agreement Changes ~ Notices, Clarifications or Amendments

By
Commercial Real Estate Agent with RE/MAX West Realty Inc., Brokerage (Toronto)

clarify

Ontario Real Estate Source                          

By Brian Madigan LL.B.

From time to time there will be some small glitches in an agreement. Some small matter was incorrect, misspelled, or overlooked in the “heat of the moment”.

The seller is John Smithe. That’s what is says on the Deed, and the listing agreement. Through inadvertence, the “e” was left off his name, and no one noticed including John Smithe, himself. He uses his usual signature, but no one can read that. No one can tell whether it says “Smithe” or “Smith”. It’s just a scrawl.

So, what can we do here? Is this important?

Let’s first determine whether there is any possibility of anyone else in the house with a similar name. This would be more likely with a first name, and more than one generation in the house.

But, assuming that we have the right person, what can we do about this?

The only person truly at risk, would be the buyer. The seller has already signed, and intended to convey the property. We don’t have an identity problem, so the issue is very, very modest. The seller cannot back out of the deal.

Just to be “on the safe side”, we can follow up with a notice, a clarification, or an amendment.

A Notice could simply be in the form of an email from the buyer’s agent. It need not bear the buyer’s signature.

A Clarification could be signed by the buyer and also signed by the seller. This document could be exchanged by e-mail as permitted under the terms of the standard form agreement of purchase and sale.

An Amendment is an amendment to the terms of the agreement. At this point, this document must be sent by fax or delivered in person. Unless, the missing “e” were viewed as very serious, then this step is unnecessary.

All three documents might say something along the following lines:

The parties (buyer and/or seller, as the case may be) confirm and clarify the following:

 

1) the listing and the registered title describe the Seller as John Smithe,

 

2) the offer, and the agreement, inadvertently omitted the "e" in the Seller's last name,

 

3) the final Amendment to the documents correctly note the spelling of the Seller's name, consistent with the listing and registered title,

 

4) all parties to the agreement are aware of the correct spelling of the name of the Seller as follows:

 

John Smithe

 

5) there was never at any time any confusion concerning the identity of the individual executing the documents as Seller.

 

6) the parties treated all documents as "appropriately amended" upon execution of the Amendment Agreement on xx March 20xx.

The advantage using an email is that only the buyer’s agent signs. With the clarification, both parties sign, but the document can be exchanged by email. When using the amendment, fax or personal delivery methods must be used.

For very minor errors and discrepancies, sometimes the notice or clarification approaches would be quite suitable.

As a caution, if you think that legal advice is required then it probably is. Use the Amendment, that’s the “fail-safe default” approach.

clarifyBrian 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.iSourceRealEstate.com

 

Comments (5)

Jill Sackler
Charles Rutenberg Realty Inc. 516-575-7500 - Long Beach, NY
LI South Shore Real Estate - Broker Associate

Hi Brian, This happens so frequently. Thanks for the info on how best to clear it up.

Mar 12, 2013 03:08 AM
Brian Madigan
RE/MAX West Realty Inc., Brokerage (Toronto) - Toronto, ON
LL.B., Broker

Jill,

 

I think that some people just take themselves too seriously.

 

Brian

Mar 12, 2013 12:29 PM
FN LN
Toronto, ON

Hi Brian - Sometimes I review agreements that I did not have any involvement with negotiating, drafting or execution or any other matter at that time.  I am reviewing the agreements that were executed days, months or even longer ago, as I need information for various reasons.  I find that the agreement may refer to legal entities that do not make sense, addresses that don't make sense or other issues that don't make sense.  I request clarification from the relevant legal counsel and, usually, the response is for them to prepare a clarifying agreement or an an amended agreement and to obtain execution from the relevant parties.

Your post discusses purchase and sale agreements relating to real property in Ontario and states that amendments must be handled via personal delivery or fax, but not e-mail.  I have seen situations that do not involve real property where some of the parties may not be in Ontario and in those situations, the lawyers and signing authorities have used e-mail and PDF documents.

Mar 12, 2013 12:44 PM
Brian Madigan
RE/MAX West Realty Inc., Brokerage (Toronto) - Toronto, ON
LL.B., Broker

Marc,

Yes, my comments were restricted to Ontario and also to the "agreement conveying land'. All other documents can be handled easily in another format.

The difficulty in Ontario is that we do still have that hard copy requirement (including fax) which can be bothersome if the document is not a matter of substance.

However, I have seen the names of companies get mixed up particularly when dealing with numbered companies.

Brian

Mar 13, 2013 03:35 AM
Marcia Hawken
WILLIAM RAVEIS - Naples, FL
Naples Luxury Specialist

Brian,

It is good to know what prevails in Ontario, as I have so many snowbirds in Naples from your area.  Also, the issue of PDFs is important to clarify.  We are charting new territory.  Thanks for your info.

Mar 17, 2013 11:39 AM