Obtainment of the certificate of location: What clause should be used in the promise to purchase?

Should the broker make the promise to purchase conditional upon the submission and examination of the certificate of location by using clause 9.1?

Clause 9.1 of promise to purchase forms allows the buyer to verify and examine documents referred to therein. In addition to the failure to submit documents to the buyer within the specified time period under this clause, the dissatisfaction arising from the verification and review of documents is also a reason to cancel the promise to purchase.

It could be risky to request the certificate of location under clause 9.1 of promise to purchase forms where the buyer simply wishes to get it before visiting the notary, without having a professional examine the document. Under clause 9.1, if the buyer does not cancel the promise to purchase within the time frame specified in this clause, this means that he is satisfied with the document.

However, when verifying titles in the days prior to the signing of the deed of sale, the notary might discover that the certificate of location, with which the buyer was satisfied under the terms of clause 9.1, does not describe the current condition of the immovable or it reveals irregularities that the buyer was not actually aware of. A dispute between the seller and the buyer might then occur and many questions might be raised: who would pay for the new certificate of location? Has the buyer waived the condition that the seller provides him with a valid property title? Would clause 10.5 (defect or irregularity) of promise to purchase forms (clause 10.7 for the Promise to purchase – divided co-ownership form) apply?

In short, should the buyer wish to get a certificate of location before visiting the notary but without waiving its subsequent verification by the notary, the broker should include a condition under section 12 (Other declarations and conditions) of promise to purchase forms without the buyer having to declare himself satisfied with it. In this regard, the standard clause 3.20, entitled Obtainment of the certificate of location within the specified time frame, could be used.

It is a recommended practice for the protection of parties and the smooth progress of transaction. Thereby, should an irregularity be raised afterwards, clause 10.5 (defect or irregularity) of promise to purchase forms (clause 10.7 for the Promise to purchase – divided co-ownership form may apply.

Should the certificate of location be still requested through clause 9.1 of the promise to purchase, the broker should make sure to inform and advise the buyer of the risks mentioned above so he can have the notary verify the titles. As the 7-day time frame indicated under clause 9.1 of promise to purchase forms is relatively short, it should be extended according to the analysis to be carried out by the notary.