Standard clauses - 3 - Promise to Purchase
3.3 - Lease termination agreement
3.4 - Exclusion of warranty for fireplaces, stoves, combustion appliances and chimneys
3.5 - Exclusion of legal warranty of quality
3.7 - Swimming pool inspection
3.8 - Tank and heating systems inspection
3.10 - Buyer's participation in the enterprise's operations
3.11 - Work to be performed by the seller
3.16 - Inspection to the buyer’s satisfaction
3.18 - Acceptance including notification clause
3.19 - Property search by the seller
3.20 - Obtainment of the certificate of location within the specified time frame
3.23 - Geotechnical expertise (landslide restriction zones)
3.25 - Termination of a lease and release of the premises by the tenant
3.27 – Lease termination agreement at the buyer’s expense
3.28 – Visit of the immovable by the buyer
3.1 – Earnest money agreement
With this promise to purchase, the BUYER remits to the intermediary referred to above, as earnest money, the sum of __________dollars ( $______) by cheque payable to the order of ______________"in trust" (hereinafter called the TRUSTEE). If applicable, this sum shall be applied against the purchase price at the signing of the deed of sale.
Following acceptance of this promise to purchase, the cheque may be certified and shall be given to the TRUSTEE, who shall deposit it into a trust account until it is disposed of in accordance with this clause. As soon as he has deposited this sum into a trust account, the TRUSTEE shall give the depositor a receipt. The BUYER or the SELLER may render this promise to purchase null and void by written notification to this effect to the other party before______________.
When the option is exercised by the BUYER, the TRUSTEE shall immediately remit this sum, without interest, to the SELLER. When the option is exercised by the SELLER, the TRUSTEE shall immediately reimburse this sum to the BUYER, and the SELLER shall pay to the BUYER, without delay, an additional sum equal to this sum. This promise to purchase shall become null and void from the time of receipt by the BUYER or the SELLER, as applicable, of the entire sum due.
Should this promise to purchase become null and void by virtue of another clause under this promise to purchase, the TRUSTEE shall immediately reimburse to the BUYER the sum mentioned, without interest.
Note: Like the deposit, earnest money is a sum that the buyer pays with the promise to purchase to be applied against the sale price at the signing of the deed of sale. However, earnest money is different from the deposit in that it is not simply an advance, but also the penalty that the party (buyer or seller) will have to pay to exercise the right to cancel the promise to purchase. In case of withdrawal by the buyer, the buyer loses the sum paid; in case of withdrawal by the seller, the buyer is entitled to reimbursement of the sum paid and, in addition, the seller must pay an equivalent sum to the buyer; therefore, the buyer gets back double the sum paid as earnest money.
This clause is to be used only if the parties agree that the other may unilaterally withdraw from the promise to purchase in exchange for the penalty represented by the earnest money. It should be used under exceptional circumstances only, when warranted by the situation. The payment of a simple deposit remains the preferred procedure in the vast majority of cases.
If this clause is used, it replaces the deposit clause contained in of the promise to purchase forms (clause 4.3 in mandatory promise to purchase forms). It must be entered in the section “Other declarations and conditions” of the appropriate promise to purchase form, or, if there is insufficient space, in an Annex G – General form, and the deposit clause must be crossed out. The seller and the buyer must initial the deleted clause.
3.2 – Insurance commitment
The BUYER promises to undertake, in good faith and at his expense, the necessary steps to obtain, within _______days following acceptance of this promise to purchase, a commitment from an insurer to insure the IMMOVABLE.
If the BUYER is unable to obtain this commitment and wishes to cancel this promise to purchase for that reason, he shall notify the SELLER in writing and give him a copy of the insurer's refusal notice within four (4) days following the expiration of the above deadline. This promise to purchase shall become null and void from the time of receipt of such notices by the SELLER. Should the BUYER fail to give notice to the SELLER within the specified time period and in the manner described above, he shall be deemed to have waived this condition.
3.3 – Lease termination agreement
We, the undersigned,
______________________________ lessee 1
______________________________ lessee 2 (if applicable)
residing at _______________________________________
(COMPLETE ADDRESS OF DWELLING)
acknowledge that we are aware of our right to maintain occupancy of the leased premises under the terms of the Civil Code of Québec. However, having been granted a reflection period and after duly considering the personal, family and economic implications thereof, we hereby accept to terminate the lease on __________________(date) and to vacate the dwelling for occupancy by the new owner(s) on that date as of _______________ o’clock. In exchange, we accept monetary compensation in the amount of $________, to be paid by the current owner(s) on ______________(date) and hereby release the new owner(s) of any responsibility in this regard.
The lessee acknowledges having read and understood this agreement and having received copy thereof.
Signed in ____________________ on ___________________ at __________ o’clock.
________________________
LESSEE 1
Person who has the right to maintain occupancy (if applicable)
________________________
LESSEE 2 (if applicable)
Person who has the right to maintain occupancy (if applicable)
________________________
OWNER
Acknowledgement of receipt
The buyer acknowledges receipt of a copy of this agreement.
Signed in ____________________ on ___________________ at __________ o’clock.
________________________
BUYER 1
________________________
BUYER 2 (if applicable)
_______________________
Witness
Note: This standard agreement is for use when a promise to purchase is conditional upon the seller obtaining the termination of a lease and the lessee’s agreement to vacate the dwelling by a given date. However, its use will not guarantee that the lessee will actually vacate the premises on the agreed date. Nothing guarantees that the lessee will not contest the validity of the agreement he signed with the selling owner and refuse to vacate the premises, forcing the buyer to institute proceedings before the Régie du logement to have him evicted, without any guarantee of success.
It is important to obtain the agreement and signature of all the lessees whose names appear on the lease. The agreement of any other person who has a right to maintain occupancy must also be obtained, e.g. the lessee’s married or civil union spouse, his de facto spouse who has been living with him for at least 6 months, or a blood relative or connected person who has been living with the lessee for at least 6 months.
The “Acknowledgement of receipt” section provides proof that a copy of the lease termination agreement has been provided to the buyer within the deadline and according to the terms of the promise to purchase.
IMPORTANT: A lessee cannot waive his right to maintain occupancy in advance. This means, among other things, that the above standard lease termination agreement cannot be used as an annex to a lease.
3.4 – Exclusion of warranty for fireplaces, stoves, combustion appliances and chimneys
The stove(s), fireplace(s), combustion appliance(s) and chimney(s) are sold without any warranty with respect to their compliance with applicable regulations and insurance company requirements.
Note: Regulation changes and differences in the requirements of insurance companies are frequent causes of disputes after a sale. However, the proposed exclusion of warranty will not discharge the seller if he fails to disclose a defect of which he was aware (for example if he received a notice of non-compliance from a competent authority or an insurer and omitted to declare this under clauses D2.7 and D2.8 of the form Declarations by the seller of the immovable. If this clause is used, the buyer should be advised to hire a specialist in order to have all the necessary verifications done with the appropriate authorities.
3.5 – Exclusion of legal warranty of quality
Note: Although the exclusion of legal warranty of quality can concern the whole immovable and the entire chain of previous sellers, it can also be modulated by excluding the specific liability of the immediate seller or by excluding the warranty regarding certain specific components of the immovable (see clauses below).
It is important to explain to both the seller and the buyer the consequences of a total or partial exclusion of warranty of quality on their rights and obligations and on the marketing of the immovable. In all cases, given the serious nature of these consequences, the broker must recommend that the parties seek legal advice. An inspection of the immovable that takes the exclusion of warranty into account should be recommended to the buyer.
If one of these clauses is used, it must be entered in the section “Other declarations and conditions” of the promise to purchase form.
Regardless of the media used, any detailed description sheet or similar document, intended for the public, describing an immovable covered by a brokerage contract, must indicate whether the immovable is being sold without (total or partial) legal warranty of quality.
Note: the total warranty exclusion clause must not be automatically transcribed from the description sheet of the immovable to the Promise to purchase form. The buyer must be informed of the possibility of modulating it. The broker must include the clause as requested by the buyer in the promise to purchase.
The total warranty exclusion clause is more suitable for exceptional situations such as a succession, a repossession, a building to be demolished, or a change of use.
In addition, a partial exclusion clause that specifically identifies which previous sellers and/or components of the immovable are concerned, if applicable, (clause 3.5.1), helps ensure that as many legal protections as possible are assigned to the buyer in accordance with the seller’s will to protect himself against certain legal recourses.
For more information on the exclusion of legal warranties, see section 3.3 of the Guideline – Verification, information and advice.
3.5.1 – Exclusion clause specific to the immediate seller
This sale is made without any legal warranty of quality from the seller; however, the buyer does not waive the legal warranties granted by previous owners and received by the seller upon purchase of the property, which are hereby assigned to the buyer.
Note: This clause provides that the immediate seller is the only owner in the immovable’s chain of ownership not to offer legal warranties. Of course, it is important to ensure that the previous sellers have sold with the legal warranty. It is also possible to exclude certain former owners (e.g. friends, family, ex-spouse) that the immediate seller also wishes to protect.
The partial exclusion clause that specifically identifies which previous sellers of the immovable are concerned, if applicable, helps ensure that as many legal protections as possible are assigned to the buyer while respecting the seller’s will to protect himself against certain legal recourses.
3.5.2 – Exclusion clause on certain components of the immovable
This sale is made without any legal warranty of quality from the seller as pertains to ______________ (describe the excluded component(s)).
Note: It is possible to exclude the legal warranty of quality on specific components of the immovable (e.g. pool, fireplace, air conditioning or heating equipment, appliances or any other aspect concerning the lot).
3.5.3 – Total exclusion clause
This sale is made without any legal warranty of quality, at the buyer’s own risk.
Note: In the case of a total exclusion clause, the buyer waives not only the warranty offered by his immediate seller, but also all warranties offered by previous sellers of the immovable, even if they sold with the legal warranty. The total warranty exclusion clause is more suitable for exceptional situations such as a succession, a repossession, a building to be demolished, or a change of use.
3.6 – Chimney inspection
The BUYER may, at his expense, have the chimney(s) inspected by an expert, within _____ days following acceptance of this promise to purchase. If the BUYER is not satisfied with the inspection report and wishes to cancel this promise to purchase for that reason, he shall notify the SELLER in writing and give him a copy of the inspection report within four (4) days following the expiration of the above deadline. This promise to purchase shall become null and void from the time of receipt of such notice by the SELLER together with a copy of the inspection report. Should the BUYER fail to give notice to the SELLER within the specified time period and in the manner described above, he shall be deemed to have waived this condition.
3.7 – Swimming pool inspection
The BUYER agrees to have the swimming pool inspected by an expert within _______ days following acceptance of this promise to purchase. Should the inspection report reveal the presence of damages, deficiencies or non-compliance, other than of an aesthetic nature, and the buyer wish to cancel this promise to purchase for that reason, he shall notify the SELLER in writing and give him a copy of the inspection report within four (4) days following the expiration of the above deadline. This promise to purchase shall become null and void from the time of receipt of such notice by the SELLER, together with a copy of the inspection report. Should the BUYER fail to give notice to the SELLER within the specified time period and in the manner described above, he shall be deemed to have waived this condition.
3.8 – Tank and heating systems inspection
The BUYER may, at his expense, have the heating systems, including the tank, inspected within ________ days following acceptance of this promise to purchase.
If the BUYER is not satisfied with the inspection report, he shall notify the SELLER in writing and give him a copy of the inspection report within four (4) days following the expiration of the above deadline. This promise to purchase shall become null and void from the time of receipt of such notice by the SELLER together with a copy of the inspection report.
Should the BUYER fail to give notice to the SELLER within the specified time period and in the manner described above, he shall be deemed to have waived this condition.
3.9 – Zoning change or permit
The BUYER agrees to undertake in good faith, as soon as possible and at his expense, all necessary steps to obtain from the relevant authorities a zoning change concerning the IMMOVABLE or a permit to allow:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
The SELLER agrees to concur, if required, in any step on the part of the BUYER to obtain the above-mentioned permit or change.
The BUYER agrees to notify the SELLER in writing, within _____ days following acceptance of this promise to purchase, that this condition has been met or is being waived. Receipt of such written notification within the specified time period shall fully satisfy this condition. In the absence of such notification within the specified time period, this promise to purchase shall become null and void.
3.10 – Buyer's participation in the enterprise's operations
This promise to purchase is conditional to the BUYER being able to participate in the ENTERPRISE's operations for a period of ___________ days, to begin on _____________ at the latest, according to the following terms:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________.
To this effect, the SELLER agrees, during this period, to remain at the BUYER'S disposal and to provide him with all the information and support he needs to participate in ENTERPRISE's operations.
If, at the end of the period stipulated above, the BUYER is not satisfied, he may cancel this promise to purchase by sending a written notice to this effect to the SELLER within seven (7) days after the expiration of the period. This promise to purchase shall become null and void from the moment such notice is received by the SELLER. Should the BUYER fail to notify the SELLER within the deadline specified, he will be deemed to have waived this condition.
3.11 – Work to be performed by the seller
The SELLER agrees to have the following work done, at his expense, by a contractor who shall be approved by the BUYER and in accordance with the quote approved by each of the parties:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Any warranty provided by the contractor shall be transferable to the BUYER.
If, as of the date scheduled for the signing of the deed of sale, the work has not been completed or paid for, the parties instruct the acting notary to withhold from the proceeds of the sale:
□ a sum of ($) ____ ;
□ a sum equal to the price indicated on the quote plus ____ % (minimum 25%). In such a case, a copy of the quote shall be attached hereto.
The acting notary may require that the SELLER and the BUYER sign a withholding agreement.
Once the work is completed, the notary shall pay from the sum withheld any sum then due to the contractor or in the order specified in the withholding agreement, if any, in exchange for an acquittance from the contractor and from any person identified in the withholding agreement.
The BUYER shall have any uncompleted work completed by _____________ at the latest. The notary shall pay from the sum withheld any sum due on this date to the contractor or in the order specified in the withholding agreement, if any, in exchange for an acquittance from the contractor and any person identified in the withholding agreement. Upon submission of invoices, the notary shall also reimburse the BUYER, from the sum withheld, the cost of the work thus performed.
If, following payment of the contractor and, if applicable, reimbursement to the BUYER, a portion of the sum withheld remains, it shall be remitted to the SELLER.
Note: This clause is meant to be used in special cases where delicate or important work requiring special expertise, such as soil decontamination or repairs to a concrete slab damaged by pyrite, must be performed. It is not meant to be used for routine repair or renovation work that might be suggested during a pre-purchase inspection. In this regard, it is better to have the acting notary prepare a withholding agreement in due form, in accordance with the regulations of the Chambre des notaires du Québec. The parties should be advised that the notary may charge additional fees and expenses to act as depositary of the withholding. Once the work is completed, the notary shall pay from the sum withheld any sum then due to the contractor or in the order specified in the withholding agreement, if any, in exchange for an acquittance from the contractor and from any person identified in the withholding agreement. If the parties expressly request that, the notary may also be mandated to verify whether, apart from the persons identified in the agreement, other persons have enforced a legal hypothec on the payment date.
Also, the buyer must inform his mortgage creditor of the withholding and obtain his consent to this effect. Considering the possible increase in costs during construction, it is recommended that the percentage increase be left to the discretion of the parties by setting it at a minimum of 25%.
In addition, when work to be done is uncovered during a pre-purchase inspection, it is preferable for the parties to agree on a price reduction to take the cost of the work into account. A standard clause is available for a sale price reduction following a pre-purchase inspection.
3.12 – Verification of zoning
The BUYER agrees to undertake in good faith, as soon as possible and at his expense, all necessary steps to obtain from the relevant authorities confirmation that the purpose he plans to give the immovable complies with relevant zoning regulations.
The BUYER agrees to notify the SELLER in writing, within _____ days of acceptance of this promise to purchase, that this condition has been met or is being waived. Receipt of such written notification within the specified time period shall fully satisfy this condition. In the absence of such notification within the specified time period, this promise to purchase shall become null and void.
3.13 – Visit by the buyer
The BUYER may visit the immovable within ___________ days following acceptance of this promise to purchase. If the BUYER is not completely satisfied with this visit and wishes to cancel this promise to purchase for that reason, he shall notify the SELLER in writing within two (2) days following the expiration of the above deadline. This promise to purchase shall become null and void from the time of receipt of such notice by the SELLER. Should the BUYER fail to give notice to the SELLER within the specified time period and in the manner described above, he shall be deemed to have waived this condition.
Note: The purpose of this clause is to allow the buyer to obtain a delay to visit the property after his promise to purchase has been accepted in case he was unable to visit the immovable beforehand, was only able to visit part of it (income property) or wants to see it again to verify certain elements or to show it to a third party. Normally the period granted to the buyer for this purpose should be about the same as the period given to obtain financing or for the inspection.
3.14 – Pool opening by seller
The SELLER agrees, at his own expense, to have the pool opened and ready for use according to good trade practices before _____________. In order to guarantee the fulfillment of this agreement, the parties instruct the acting notary to withhold from the proceeds of the sale the amount of $___________ and to keep this amount in trust until such time as this condition has been fulfilled. This amount shall be remitted to the SELLER by the notary once the pool opening has been completed and the BUYER has declared himself satisfied therewith.
Should the SELLER fail to fulfill this obligation in the manner and within the time period specified above, the parties hereby instruct the notary to remit the above amount to the BUYER without further notice or delay.
Note: This clause is to be used in cases where the promise to purchase that led to the sale of the immovable was accepted before the date at which the pool is scheduled to be opened and where the deed of sale is signed after the date at which the pool was to be opened. In this regard, it is better to have the acting notary prepare a withholding agreement in due form, in accordance with the regulations of the Chambre des notaires du Québec. The parties should be advised that the notary may charge additional fees and expenses to act as depositary of the withholding. Also, the buyer must inform his mortgage creditor of the withholding and obtain his consent to this effect.
3.15 – General clause by which a sum is withheld by the notary to guarantee an obligation by the seller
The SELLER agrees to _________________________________, by _____________ at the latest.
In order to guarantee the performance of this obligation, the parties instruct the acting notary to withhold from the proceeds of the sale the amount of $___________ and to keep this amount in trust until such time as this condition is fulfilled. This amount shall be remitted to the SELLER by the notary once the SELLER's obligation is fulfilled and the BUYER has declared himself satisfied therewith in accordance with the conditions set out in a withholding agreement that may be signed at the request of the acting notary.
Should the SELLER fail to fulfill this obligation in the manner and within the time period specified above and in accordance with the provisions of the withholding agreement if any, the parties hereby instruct the notary to remit the above amount to the BUYER without further notice or delay.
Note: This clause is meant to be used in special cases where the seller is required to fulfill an obligation. It is not meant to be used for routine repair or renovation work that might be suggested during a pre-purchase inspection. In this regard, it is better to have the acting notary prepare a withholding agreement in due form, in accordance with the regulations of the Chambre des notaires du Québec. The parties should be advised that the notary may charge additional fees and expenses to act as depositary of the withholding. Also, the buyer must inform his mortgage creditor of the withholding and obtain his consent to this effect.
In addition, when work to be done is uncovered during a pre-purchase inspection, it is preferable for the parties to agree on a price reduction to take the cost of the work into account. A standard clause is available for a sale price reduction following a pre-purchase inspection.
3.16 – Inspection to the buyer’s satisfaction
The BUYER may, at his expense, have the immovable inspected by a building inspector or a professional within ________ days following acceptance of the promise to purchase. At his sole discretion, if he wishes to cancel the promise to purchase, he shall notify the SELLER, in writing, and shall give him a copy of the inspection report within four (4) days following the expiration of the above deadline. The promise to purchase shall become null and void upon receipt, by the SELLER, of this notification together with a copy of the inspection report. Should the BUYER fail to notify the SELLER within the time period and in the manner specified above, he shall be deemed to have waived this condition.
Note: This clause may be used in lieu and place of the clause “Inspection by a person chosen by the buyer” of the promise to purchase form where the buyer wishes to be able to withdraw following the inspection, at his sole discretion. If this clause is used, it must be entered in the section “Other declarations and conditions” of the appropriate promise to purchase form or, if there is insufficient space, in an Annex-G – Generalform, and the clause “Inspection by a person chosen by the buyer” must be crossed out. The seller and the buyer must initial the deleted clause.
Under this standard clause, the inspection of the immovable must be to the buyer’s entire satisfaction, failing which the buyer, upon notice, shall have the right to make his promise to purchase null and void without having to invoke significant reasons. However, the inspection of the immovable must be made by a building inspector or a professional and the buyer must send a copy of the inspection report to the seller at the same time as the required notice.
3.17 – DB-certified stone
(To be used when the property was built after April 1999 and the SELLER has in his possession a delivery slip proving that the backfill materials used in the immovable is DB-certified stone)
The SELLER shall give the BUYER, within _____ days following acceptance of this promise to purchase, a copy of the delivery slip proving that the backfill materials used in the basement and, if applicable, the garage of the IMMOVABLE, are DB-certified stone.
If the BUYER is not completely satisfied with the delivery slip, the BUYER shall be able to cancel this promise to purchase by notifying the SELLER in writing within four (4) days following the expiration of the above deadline. This promise to purchase shall become null and void from the time of receipt of such notice by the SELLER. Should the BUYER fail to give notice to the SELLER within the time period and in the manner specified above, he shall be deemed to have waived this condition.
Note: If this clause is used, it must be entered in the section “Other declarations and conditions” of the promise to purchase or, if there is insufficient space, in an Annex-G – General form. The same result can be obtained by using clause 9.1 of the promise to purchase form and adding the following words: “copy of the delivery slip proving that the backfill materials used in the basement and, if applicable, the garage of the immovable, are DB-certified stone”.
Backfill materials for a home built after April 1999 should be certified to be non-swelling (DB-certified stone). However, this certification is not mandatory. It is therefore important to obtain and verify the delivery slip for the backfill materials. The delivery slip of DB-certified stone will contain the abbreviations of the issuing laboratory, the beginning and end date of the certification, the letters DB and a declaration signed by the trucker.
If a delivery slip for DB-certified stone is available, this must be mentioned on the immovable’s detailed description sheet prepared by the seller’s broker.
3.18 – Acceptance including notification clause
The BUYER and the SELLER declare that their consent is not the result of any representation or condition not contained in this promise to purchase.The BUYER is irrevocably committed until ___:___ on _______. If the SELLER accepts this promise within this deadline, acceptance shall be notified to the BUYER within ______ hours following the expiration of the deadline. If the SELLER does not accept it within this deadline, or if the BUYER is not notified of the acceptance within this deadline this promise to purchase shall become null and void.
However, if the promise is accepted and notification is received within the deadline, this promise to purchase shall constitute a contract that is legally binding on the parties. A refusal by the SELLER shall render this promise to purchase null and void. A counter-proposal by the SELLER shall have the same effect as a refusal.
3.19 – Property search by the seller
The SELLER promises to undertake in good faith and at his expense, as soon as possible following acceptance hereof, the necessary steps to present a promise to purchase on an immovable and have it accepted, and to fulfill all conditions thereof, excluding the signing of the act of sale in the presence of the notary.
Should the SELLER fail to fulfill this condition and wish to cancel this promise to purchase for this reason, he shall notify the BUYER in writing within a period of ________________ days following acceptance hereof. This promise to purchase shall become null and void upon receipt by the BUYER of this notification. Should the SELLER fail to notify the BUYER within the time period and in the manner provided above, he shall be deemed to have waived this condition.
3.20 – Obtainment of the certificate of location within the specified time frame
This promise to purchase is conditional upon the SELLER sending to the BUYER the certificate of location representing the current state of the immovable within ________ days following the acceptance of this promise to purchase. If the buyer does not receive the certificate of location within the specified time period and wishes to make this promise to purchase null and void for this reason, he should notify the SELLER in writing within four (4) days following the expiry of the time period mentioned above. This promise to purchase shall become null and void upon receipt of such notice by the SELLER. Should the BUYER fail to give notice to the SELLER within the specified time period and in the manner described above, he shall be deemed to have waived this specified time period.
Note: For more information, read this article: Obtainment of the certificate of location: What clause should be used in the promise to purchase?
3.21 – Radon Measurement Test
The parties instruct the acting notary to withhold from the proceeds of the sale an amount of $________. This amount shall be remitted to the BUYER if the report produced by a certified radon measurement professional states, following a test to measure radon levels in the living space of the IMMOVABLE, that the average annual radon concentration is equal or exceeds 200 Bq/m3 and if a copy of the report is submitted to the SELLER within ___________ days following the signing of the deed of sale. Failing which, the amount shall be remitted to the SELLER, at the expiry of that time frame.
The amount mentioned above is intended to compensate the BUYER for the cost of work required to reduce the average radon levels in the living space of the IMMOVABLE. Upon receipt of this amount, the BUYER waives any claim and any other recourse in this regard.
All costs and fees relating to the management of the amount withheld by the notary shall be borne by the SELLER.
3.22 – Sending of a notice
The parties expressly agree that the following method(s) shall be used as a method of transmission for the notices required under clause(s) ☐ R2.2 ☐ R2.4 ☐ P2.4 ☐ L2.6, and also agree that despite stipulations to the contrary, the periods indicated in these clauses shall start from the time of sending of said notices, the date and time indicated on the document evidencing the transmission serving as proof:
☐ email to the following address: __________________________
☐ fax to the following number: _________________________
☐ other ____________________________________________________________
The parties also agree that a copy of this notice shall be sent to the brokers representing the parties, via the same method, to the following addresses: _____________________________. The sending of a copy to the brokers shall not relieve a party from the obligation to send the required notice to the party concerned.
Note: This clause allows the parties to a transaction to choose a specific method of transmission for a notice required under clauses R2.2 (72-hour notice), R2.4, P2.4 or L2.6 (seller’s notice to the effect that an accepted promise to purchase has been cancelled). Thus the deadline to accomplish what is stipulated in the clause (e.g. notify the seller within 72 hours that the buyer waives the benefit of condition R2.1 and of the other conditions of his promise to purchase) starts from the time of sending of this notice. This standard clause shall be used when circumstances are such that, for practical reasons, it is necessary for a period to start from the time a notice is sent rather than from the time it is received.
The method of transmission chosen must provide evidence of the date and exact time of sending. For a fax transmission, this can be the transmission sheet generated by the machine. For an email transmission, it can be the data generated by the electronic mail system that evidences the date, hour, minute and second of the transmission. Methods other than fax or email may be used, as long as the method chosen establishes the date and time of sending of the document (e.g. registered mail).
In addition, it should be noted that for any notice required pursuant to a clause in a form for which receipt must be established (e.g. notices required under clauses other than those concerned by this standard clause), it is also possible to send it using a technological method such as email, fax or electronic forms. The parties simply have to agree on the method of transmission and the address where the notice must be sent, e.g. email address or fax number. The notice will then be deemed to have been received when it becomes available at this address. Proof or receipt can be obtained via an acknowledgement of receipt from the recipient or via the data stored with the document sent evidencing the date, hour, minute and second of receipt and specifying its origin and destination. However, only a sender with good technical knowledge should rely on a proof of receipt other than an acknowledgement of receipt sent voluntarily by the recipient or a proof that one is certain will be automatically generated by the transmission system used (e.g. email delivery confirmation).
3.23 – Geotechnical expertise (landslide restriction zones)
The parties acknowledge that the IMMOVABLE is located in a landslide restriction zone.
Therefore, the BUYER may, at his own expense, have a geotechnical expertise conducted by a qualified expert to determine if it is possible to carry out safely the following structures, works or uses on the IMMOVABLE:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
The BUYER shall obtain the results of this expertise within _____ days following acceptance of the promise to purchase at the latest.
If the BUYER is not completely satisfied with the expert report or if he has not received a copy of it within the specified time period and wishes to cancel the promise to purchase for this reason, he shall notify the SELLER in writing within four (4) days following the expiry of the above time period. The promise to purchase shall become null and void from the time of receipt of such notice by the SELLER. Should the BUYER fail to notify the SELLER within the time period and in the manner specified above, he shall be deemed to have waived this condition.
Note: When the immovable is located in a landslide restriction zone, some uses, modifications, additions or works planned by the buyer might be prohibited in the restriction zone. However, these prohibitions could be lifted provided that a geotechnical expertise allows that. To do this, the broker shall recommend to the buyer that he make his promise to purchase conditional upon obtaining a permit and a geotechnical expert report.
This clause allows making the promise to purchase conditional upon obtaining a geotechnical expert report. The standard clause 3.9 - Zoning change or permit is available to render the promise to purchase conditional upon obtaining a permit.
If this clause is used, it should be included in the promise to purchase or counter-proposal form or, if there is insufficient space, in an Annex G – General form.
3.24 – Waiving an expertise
The buyer acknowledges having been informed of the problem described below and of his right to have an expert examination carried out, but has waived it: ______________________________________
Note: It is important to provide written evidence that the buyer has been notified that it is possible for him to have an expert examination carried out regarding the problem described therein, but has waived it.
This clause will be included in the promise to purchase or counter-proposal form or, if there is insufficient space, in an Annex G – General form.
3.25 – Termination of a lease and release of the premises by the tenant
The SELLER undertakes to obtain, at his own expense, an agreement to terminate the lease concerning the dwelling located at ___________________ or to end the occupancy of the premises by the tenant (oral lease), the tenant’s agreement to vacate the dwelling on or before ____________, as well as the consent to the termination of the lease of any person who has the right to maintain occupancy. This lease termination agreement shall be conditional upon the fulfilment of all the conditions set out in the promise to purchase, excluding the signing of the deed of sale at the notary. The SELLER shall supply to the BUYER within _________ days following acceptance of this promise to purchase, a copy of documents evidencing the termination, the tenant’s agreement to vacate the dwelling and the consent to the termination of the lease of any person who has the right to maintain occupancy. Failing which, the BUYER may cancel his promise to purchase by notifying the SELLER in writing within four (4) days following the expiry of the above-mentioned period. This promise to purchase shall become null and void from the time of receipt of such notice by the SELLER. Should the BUYER fail to notify the SELLER within the time period and in the manner specified above, he shall be deemed to have waived this condition.
If the tenant or any other person who has the right to maintain occupancy fails to leave the premises on the date he undertook to do so, the BUYER may cancel his promise to purchase by notifying the SELLER in writing within four (4) days following that date. This promise to purchase shall become null and void from the time of receipt of such notice by the SELLER. Should the BUYER fail to notify the SELLER within the time period and in the manner specified above, he shall be deemed to have waived this condition.
Note: This clause should be used in special cases where the purchase is for a residential single-family property or a private portion of a co-ownership property that is leased. It also applies to the case where the prospective buyer himself wishes to occupy a specific dwelling. If this clause is used, it should be included in the section “Other declarations and conditions” of the appropriate promise to purchase form and, if there is insufficient space, in an Annex G – General form.
It helps prevent the buyer from incurring costs for the fulfilment of the conditions set out in the promise to purchase (inspection, financing) without having the commitment that the tenants will agree to terminate their lease.
Similarly, the clause provides that the lease termination agreement that the seller undertakes to reach is conditional upon the fulfilment of the conditions set out in the promise to purchase, excluding the signing of the deed of sale at the notary, to prevent the seller from being penalized if the buyer fails to fulfil his conditions.
This clause allows a buyer to cancel his promise to purchase if the tenant or any other person who has the right to maintain occupancy fails to leave the premises on the date he undertook to do so.
To ensure its validity, the lease termination agreement to which the clause refers should be clause 3.26 included in the book of standard clauses.
It is important that the timelines provided for herein take into account the date of signing of the deed of sale to allow sufficient time for the buyer to confirm the illegal occupancy of premises and send the required notices.
3.26 – Lease termination agreement conditional upon the fulfilment of the conditions set out in the promise to purchase
We, the undersigned,
______________________________ lessee 1
______________________________ lessee 2 (if applicable)
residing at _______________________________________
(COMPLETE ADDRESS OF DWELLING)
acknowledge that we are aware of our right to maintain occupancy of the leased premises under the terms of the Civil Code of Québec. However, having been granted a reflection period and after duly considering the personal, family and economic implications thereof, we hereby accept to terminate the lease on __________________(date) and to vacate the dwelling for occupancy by the new owner(s) on that date as of _______________ o’clock. In exchange, we accept monetary compensation in the amount of $________, to be paid by the current owner(s) on ______________(date) and hereby release the new owner(s) of any responsibility in this regard.
This agreement is conditional upon the fulfilment of conditions set out in the PP[ ]– [ ][ ][ ][ ][ ], excluding the signing of the deed of sale at the notary, no later than _______________. The owner shall notify the tenants, in writing, within four (4) days following this date of the fulfilment of conditions set out in this promise or of its cancellation. Should the landlord fail to notify the tenants within the time period and in the manner specified above, this lease termination agreement shall be deemed enforceable.
The lessee acknowledges having read and understood this agreement and having received copy thereof.
Signed in ____________________ on ___________________ at __________ o’clock.
________________________
LESSEE 1
PERSON WHO HAS THE RIGHT TO MAINTAIN OCCUPANCY (IF APPLICABLE)
________________________
LESSEE 2 (IF APPLICABLE)
PERSON WHO HAS THE RIGHT TO MAINTAIN OCCUPANCY (IF APPLICABLE)
________________________
OWNER 1
________________________
OWNER 2
Acknowledgement of receipt
The buyer acknowledges receipt of a copy of this agreement.
Signed in ____________________ on ___________________ at __________ o’clock.
________________________
BUYER 1
________________________
BUYER 2 (if applicable)
_______________________
WITNESS
Note: This standard agreement helps make the termination of a lease conditional upon the fulfilment of conditions set out in a promise to purchase, excluding the signing of the deed of sale at the notary.However, its use will not guarantee that the lessee will actually vacate the premises on the agreed date. Nothing guarantees that the lessee will not contest the validity of the agreement he signed with the selling owner and refuse to vacate the premises, forcing the buyer to institute proceedings before the Régie du logement to have him evicted, without any guarantee of success. To address this problem, clause 3.25 can be used and will enable a buyer to cancel his promise to purchase if the tenant or any other person who has the right to maintain occupancy fails to leave the premises on the date he undertook to do so.
It is important to obtain the agreement and signature of all the lessees whose names appear on the lease. The agreement of any other person who has a right to maintain occupancy must also be obtained, e.g. the lessee’s married or civil union spouse, his de facto spouse who has been living with him for at least 6 months, or a blood relative or connected person who has been living with the lessee for at least 6 months.
The “Acknowledgement of receipt” section provides proof that a copy of the lease termination agreement has been provided to the buyer within the deadline and according to the terms of the promise to purchase.
IMPORTANT: A lessee cannot waive his right to maintain occupancy in advance. This means, among other things, that the above standard lease termination agreement cannot be used as an annex to a lease.
3.27 – Lease termination agreement at the buyer’s expense
We, the undersigned,
___________________________________ lessee 1
___________________________________ lessee 2 (if applicable)
residing at ___________________________________________
(FULL ADDRESS OF DWELLING)
acknowledge that we are aware of our right to maintain occupancy of the leased premises under the terms of the Civil Code of Québec.
However, having been granted a reflection period and after duly considering the personal, family and economic implications thereof, we hereby accept to terminate the lease on __________________ (date) and to vacate the dwelling for occupancy by the new owner(s) on that date as of _______________ o’clock. In exchange, we accept monetary compensation in the amount of $________, to be paid by the BUYER on ______________ (date) and hereby release the current owner(s) of any responsibility in this regard.
The lessee acknowledges having read and understood this agreement and having received copy thereof.
Signed in ____________________ on ___________________ at __________ o’clock.
________________________
LESSEE 1
Person who has the right to maintain occupancy (if applicable)
________________________
LESSEE 2 (if applicable)
Person who has the right to maintain occupancy (if applicable)
________________________
OWNER 1
________________________
OWNER 2
________________________
BUYER 1
________________________
BUYER 2 (if applicable)
Note: This standard agreement largely reproduces the wording of clause 3.3, but provides that monetary compensation shall be paid by the buyer rather than the current owner.
For further details, see the explanations provided in clause 3.3.
3.28 Visit of the immovable by the buyer
This promise to purchase is conditional upon a physical visit of the IMMOVABLE by the BUYER, at his entire satisfaction, within ______ days following acceptance of this promise to purchase. If, for any reason whatsoever, a visit of the immovable has not taken place within this period, this promise to purchase shall become null and void as of the expiration of the above-mentioned period.
If the visit takes place within the above-mentioned period and the BUYER is not completely satisfied with this visit and wishes to cancel this promise to purchase for that reason, he shall notify the SELLER in writing within ______ days following the expiration of the above deadline. This promise to purchase shall become null and void upon receipt of this notification by the SELLER. Should the BUYER fail to give notice to the SELLER within the time period and in the manner specified above, he shall be deemed to have waived this condition.
Note: This clause should be used in the exceptional context of the pandemic. The real estate broker’s advisory role is crucial to ensure that both the buyer and the seller clearly understand the impacts of this condition. The utmost good faith on the part of all the parties is necessary to the success of such an agreement.
The purpose of this clause is to allow the buyer to obtain a delay to visit the property physically after his promise to purchase has been accepted, in case he was unable to do so before drafting the promise to purchase. Normally the time period granted to the buyer for this visit should be about the same as the period given to obtain financing or for the inspection.
This clause must be inserted in section 12 of the promise to purchase. At clause 7.1 of the promise to purchase, the broker should indicate the date of the virtual visit that took place, and add the word “virtually” next to “has visited the IMMOVABLE”.
3.29 – Cancellation of the second-ranking promise to purchase (a), counter-proposal (a.1) and Cancellation of the subsequent promise to purchase (b)
Background: The standard clauses proposed here require a clear understanding of their scope and consequences to avoid a buyer ending up committed to purchasing two properties. These clauses must be used with caution and good judgment.
Exceptionally, the standard clause 3.29 a) Cancellation of the second-ranking promise to purchase allows the buyer to continue to look for another property even if his offer was accepted as second-ranking by the seller. The buyer will be able to make a promise to purchase on a second property, conditional upon the cancellation of his second-ranking promise to purchase on the first property.
The broker’s duty to advise implies that he must warn the buyer that this type of clause could make his offers less attractive in the eyes of the sellers, since the second-ranking buyer is likely to cancel his promise to purchase.
This mechanism can only be triggered if the buyer’s promise to purchase on the first property is ranked second by the seller, by means of the mandatory form Annex R - Residential immovable (or by means of the mandatory form Counter-proposal to a promise to purchase), i.e. the seller makes acceptance of the promise to purchase conditional upon the cancellation of any other promise to purchase received by him (clause R2.4 or clause P2.4, as the case may be).
A buyer who accepts the condition of clause R2.4 (or clause P2.4) may reserve the right to make a new promise to purchase on another property, but only before receiving notice from the seller of the first property that the condition of clause R2.4 (or clause P2.4) has been fulfilled, since this means that his promise to purchase now ranks first.
If the buyer decides to make a subsequent promise to purchase on another property, he must make this second promise to purchase conditional upon the cancellation of his previous second-ranking promise to purchase (or counter-proposal). If he neglects to do so, he may find himself committed to, and therefore obliged to purchase, two properties.
In addition, the broker has a duty to ensure that:
- the parties involved clearly understand these mechanisms, which have been put in place in a particular market context that is unfavourable to the buyer, by providing the relevant information and explanation;
- the parties agree to the conditional nature of the second-ranking promise to purchase, meaning that clause R2.4 of the form Annex R – Residential immovable (or clause P2.4 of the form Counter-proposal to a promise to purchase) is duly completed;
- the standard clause 3.29 a) “Cancellation of the second-ranking promise to purchase” or 3.29 a.1) “Cancellation of the second-ranking counter-proposal” is duly inserted in Annex R or in the Counter-proposal, as the case may be;
- the standard clause 3.29 b) “Cancellation of the subsequent promise to purchase” is duly inserted in the subsequent promise to purchase concerning another property and the seller of this other property understands this cancellation mechanism.
a. Cancellation of the second-ranking promise to purchase
ATTENTION: This standard clause can only be used in combination with the standard clause 3.29 b) “Cancellation of the subsequent promise to purchase.”
Standard clause to be entered in clause R3.1 (Additional terms and conditions) of Annex R – Residential immovable
The BUYER may present another promise to purchase on a different property, despite the acceptance of this promise to purchase.
At any time before the BUYER receives the SELLER's notice within the period specified in clause R2.4 of Annex R - Residential immovable of this promise to purchase, the BUYER may cancel this promise to purchase by notifying the SELLER in writing of his decision by any means providing proof of receipt. This promise to purchase shall become null and void upon receipt by the SELLER of said written notice from the BUYER.
Should the BUYER fail to notify the SELLER that he is rendering this promise to purchase null and void within the time period and in the manner specified above, he shall be deemed to have waived this privilege.
Note: If the buyer has been informed that another promise to purchase has already been accepted by the seller, he may render his promise to purchase conditional upon the cancellation of this promise to purchase by means of clause R2.4 of the mandatory form Annex R - Residential immovable. In this case, the buyer who wishes to benefit from the privilege of cancelling his promise to purchase before the fulfilment of the said condition and before the receipt of the seller's notice, must submit a written clause to this effect.
This standard clause can only be proposed if the buyer renders his promise to purchase conditional by duly specifying the deadline for the fulfilment of this condition in clause R2.4 of the mandatory form Annex R – Residential immovable.
This standard clause shall be entered by the buyer in clause R3.1 “Additional terms and conditions” of Annex R.
Both parties must initial the Annex R – Residential immovable form for the buyer's privilege to be valid.
If the seller does not directly accept the promise to purchase and submits a counter-proposal to the buyer, including clause P2.4, the latter must ensure, before accepting this counter-proposal, that standard clause a.1) “Cancellation of the buyer's second ranking counter-proposal” (see below) has been added to the counter-proposal form.
a.1 Cancellation of the buyer’s second-ranking counter-proposal
ATTENTION: This standard clause can only be used in combination with the standard clause 3.29 b) “Cancellation of the subsequent promise to purchase.”
Standard clause to be inserted in clause P2.3.4 of the BUYER's Counter-proposal to a promise to purchase form
The BUYER may present another promise to purchase on a different property, despite the acceptance of this promise to purchase PP-----.
At any time prior to the BUYER's receipt of the SELLER's notice referred to in clause P2.4 of this counter-proposal CP---------, the BUYER may cancel the promise to purchase PP----- by notifying the SELLER in writing of his decision. This promise to purchase PP------- shall become null and void upon receipt by the SELLER of said written notice from the BUYER.
Should the BUYER fail to notify the SELLER that he is rendering the said promise to purchase PP----- null and void within the time period and in the manner specified above, he shall be deemed to have waived this privilege.
Note: Following the presentation of his promise to purchase, the buyer may receive from the seller a Counter-proposal to a promise to purchase (CP) conditional upon the cancellation of a promise to purchase previously accepted by the seller (clause P2.4 "Counter-proposal to a second promise to purchase" of the CP). In this case, the buyer who wishes to benefit from the privilege of making a promise to purchase on another property prior to the fulfilment of said condition, must submit a new counter-proposal to the seller in which he may insert this standard clause in clause P2.3.4 "Other amendments." Of course, in this new counter-proposal, the buyer will have to use the conditions of clause P2.4 as proposed in the seller's counter-proposal.
The seller must accept and acknowledge receipt of the buyer's counter-proposal for this privilege to be valid.
b. Cancellation of the subsequent promise to purchase
ATTENTION: This standard clause can only be used in combination with the standard clause 3.29 a) “Cancellation of the second-ranking promise to purchase” or 3.29 a.1) “Cancellation of the second-ranking counter-proposal.”
Standard clause to be inserted in clause 12.1 of the PP or PPD form
This promise to purchase is conditional upon the cancellation by the BUYER of any other promise to purchase pertaining to a different property he has accepted.
The BUYER undertakes to notify the SELLER in writing, within five (5) days following acceptance of this promise to purchase and prior to the fulfilment of the conditions set out therein, excluding this condition:
a. that this condition is fulfilled;
or
b. he renders this promise to purchase null and void.
Should this condition be fulfilled, and notwithstanding the deadlines set out in this promise to purchase, these deadlines, except for the above-mentioned deadline, shall begin to run upon receipt by the SELLER of the BUYER's written notice.
Should the BUYER fail to notify the SELLER within the time period and in the manner specified above, this promise to purchase shall become null and void.
Note: A buyer who, despite the acceptance of a second-ranking promise to purchase or counter-proposal, has reserved the privilege of making a promise to purchase on another property must inform the seller of that other property. If he makes a promise to purchase on another property, he must make it conditional upon the cancellation of his previously accepted second-ranking promise to purchase (or counter-proposal). If he neglects to do so, he may find himself committed to, and therefore obliged to purchase, two properties.
This standard clause can be inserted in clause 12.1 "Other declarations and conditions" of the mandatory form Promise to purchase – Chiefly residential immovable containing less than five dwellings excluding co-ownership (PP) or the mandatory form Promise to purchase – Divided co-ownership – Fraction of a chiefly residential immovable held in divided co-ownership (PPD).
Since the buyer will have a period of 5 days to cancel his other promise to purchase before starting to fulfil the conditions of his subsequent promise to purchase, it is necessary to allow for longer periods for the fulfilment of such conditions. The broker must ensure that the parties understand that the deadlines specified in the subsequent promise to purchase will only begin to run upon receipt by the seller of the buyer's notice confirming the fulfilment of the condition.
