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📋 Reference Clauses — Schedule A1
The Buyer hereby acknowledges and agrees to deliver the Deposit as mentioned in this Agreement of Purchase and Sale by Bank Draft or Certified cheque to the Deposit Holder within 24 hours of the acceptance of this Agreement.
Buyer agrees to deliver the above-mentioned Deposit to the Listing Brokerage's office within 24 hours of the time stated in the "Confirmation of Acceptance" section of this Agreement of Purchase and Sale. TIME IS OF THE ESSENCE with respect to this obligation. In the event that the Listing Brokerage does not receive the said Deposit within this period, the Seller may, at their sole and absolute discretion, declare this Agreement terminated due to Buyer's default. Upon such termination, the Seller shall be at liberty to immediately re-list the property for sale and to accept another offer, and the Seller reserves all rights to pursue any and all legal remedies against the Buyer, including, but not limited to, a claim for damages.
The Seller(s) and Buyer acknowledge and agree that there is no express or implied warranty on the condition of the chattels which are included in this Agreement of Purchase and Sale.
All parties acknowledge and agree that notwithstanding the completion date set out in this offer, the Seller(s) has the right to advance or postpone the completion date of the transaction by not more than 45 days once, by giving written notice of the amended completion date to the Buyer or his solicitor at least 30 days in advance of the earlier of the completion date set out therein and the amended completion date. All parties also acknowledge and agree that the Title Search Date will be changed to 10 business days before the amended completion date accordingly.
🛡 Section A — Core Seller Protection Clauses
The Buyer represents and warrants that, as of the date of this Agreement, the Buyer is purchasing the property for the Buyer's own personal use and occupancy, and not as inventory or in the course of a business, and that HST does not apply to this transaction.
The Buyer acknowledges that the Seller shall not be obligated to remedy any title objections and the Buyer's sole remedy shall be to terminate this Agreement.
If conditions are not waived in writing by [date/time], the Seller may, at the Seller's option, declare this Agreement null and void.
The Buyer shall not assign this Agreement without the prior written consent of the Seller.
The Buyer acknowledges having been advised to seek independent legal advice prior to executing this Agreement.
The Seller reserves the right to continue to offer the property for sale and accept backup offers until all conditions have been waived or fulfilled. Provided that the Seller may continue to offer the property for sale and, in the event the Seller receives another Offer satisfactory to the Seller, the Seller may so notify the Buyer in writing by delivery to the Buyer or to the Buyer's address for service hereunder. The Buyer shall have ___ ( ___ ) hours from the giving of such notice to waive this condition by notice in writing delivered to the Seller or to the Seller's address for service hereunder, failing which this Offer shall be null and void, and the Buyer's deposit shall be returned in full without interest or deduction. The Buyer agrees that, upon waiver of this condition, the Buyer shall have a binding agreement and shall complete the transaction in accordance with its terms. This clause shall not be invoked by the Seller until ___ days after acceptance of this Agreement.
The Buyer accepts the property in its present 'as-is' condition and acknowledges that the Seller makes no representations or warranties regarding the condition of the property.
Except as expressly set forth in the deed, all representations, warranties, and agreements made by the Seller(s) in this Agreement shall not survive the Closing. Upon delivery and acceptance of the deed, all such representations and warranties shall merge into the deed and be fully extinguished, and the Buyer shall have no further recourse against the Seller(s) regarding the condition of the Property.
All warranties and representations made by Seller(s) apply strictly to the Property's condition prior to Closing. These warranties shall not survive Closing, but shall merge entirely with the deed upon delivery, rendering Seller(s) free of any post-Closing liability regarding the Property's condition.
🛡 Section B — Additional Seller Protection Clauses
In the event the Buyer fails to complete this transaction for any reason not permitted by this Agreement, the deposit paid shall be forfeited to the Seller as liquidated damages and not as a penalty, without prejudice to the Seller's right to pursue any other remedies available at law or in equity, including but not limited to a claim for damages.
The Buyer and the Buyer's agents, inspectors, and contractors shall not access the property without the prior written consent of the Seller or the Listing Brokerage. The Buyer shall be responsible for and shall indemnify the Seller against any loss, damage, or liability arising from any entry upon the property by the Buyer or any person authorized by the Buyer, and shall restore the property to its original condition following any inspection or test.
The Buyer's representations and warranties contained in this Agreement, including but not limited to those relating to the Buyer's intended use of the property and the applicability of Harmonized Sales Tax (HST), shall survive and not merge upon the completion of this transaction, and shall continue in full force and effect following the closing date.
Once any condition set out in this Agreement has been waived in writing by the party for whose benefit the condition was included, such waiver shall be final and irrevocable and shall not be withdrawn or revoked by such party.
The Buyer shall make a bona fide application for financing within two (2) business days of acceptance of this Agreement and shall pursue such application diligently and in good faith. The Buyer shall provide the Seller, upon request, with reasonable evidence that a financing application has been submitted. The Buyer shall not deliberately frustrate or fail to pursue the fulfillment of the financing condition.
Notwithstanding any other provision of this Agreement, if the Buyer provides written notice of any deficiency, defect, or objection which would otherwise entitle the Buyer to terminate this Agreement, the Seller shall have five (5) business days from receipt of such notice to remedy, cure, or satisfy the deficiency, defect, or objection. If the Seller remedies, cures, or satisfies the deficiency, defect, or objection within such period, the Buyer shall not be entitled to terminate this Agreement on the basis of such deficiency, defect, or objection.
The Buyer and Seller acknowledge and agree that the Listing Brokerage and the Co-operating Brokerage, and their respective brokers, salespersons, and employees, shall not be held liable for any representations, warranties, or conditions not expressly set out in this Agreement, including but not limited to any representations regarding the physical condition of the property, the accuracy of measurements, zoning compliance, or the availability of permits.
The Seller makes no representation or warranty that any improvements, renovations, alterations, or additions to the property were made in compliance with applicable building codes, by-laws, or that the necessary permits were obtained. The Buyer acknowledges that it is the Buyer's sole responsibility to verify permit history and compliance with all applicable municipal requirements at the Buyer's own expense prior to the waiver of conditions.
The Buyer acknowledges and agrees that any pre-closing re-visits to the property shall be limited to a maximum of one (1) hour each, on at least twenty-four (24) hours' written notice to the Seller, at a mutually agreed upon time, and accompanied by the Seller or the Seller's representative. The Buyer further acknowledges and agrees that such re-visits shall be for the sole purpose of measurement and obtaining contractor quotes, and not for the purpose of re-inspection of the condition of the property. The Buyer's pre-closing visits shall not extend, revive, or create any condition, warranty, or right of objection regarding the property's condition.
Notwithstanding any provision in this Agreement or any Schedule attached hereto to the contrary, all conditions in this Agreement that are stated to be fulfilled to the satisfaction of the Buyer in the Buyer's "sole and absolute discretion," "sole discretion," or words of similar effect, shall be deemed amended to require the Buyer to act reasonably and in good faith in determining whether such conditions have been fulfilled. The Buyer agrees that any decision to declare a condition unfulfilled must be based on a reasonable, good-faith assessment of the inspection report, financing application outcome, status certificate review, or other applicable matter, as the case may be.
The Buyer agrees to apply diligently and in good faith for financing, and to provide the Seller with a copy of the lender's mortgage commitment letter or written denial upon request within forty-eight (48) hours of such request. Failure of the Buyer to apply for financing in good faith shall constitute a breach of this Agreement, and the Buyer shall not be entitled to rely on the financing condition to terminate this Agreement or to recover the deposit.
Notwithstanding any provision in this Agreement or any Schedule attached hereto to the contrary, all representations and warranties made by the Seller with respect to the chattels, fixtures, mechanical, electrical, heating, ventilation, air conditioning, plumbing, and other equipment included in this Agreement of Purchase and Sale shall expire and be of no further force or effect on the date that is forty-eight (48) hours after completion of this transaction. The Buyer's sole and exclusive remedy for any breach of such representations and warranties shall be limited to the reasonable cost of repair or replacement, not to exceed Five Hundred Dollars ($500.00) per item, and in no event shall the Seller be liable to the Buyer for consequential, indirect, incidental, special, or punitive damages, loss of use, loss of enjoyment, or diminution in value of the property. "Working order" shall mean functional in the manner intended; cosmetic wear, age-related deterioration, and end-of-life-cycle conditions are excluded.
📋 Reference Clauses — Section C — Reps & Warranties: The Three-Knob Framework
Every representation & warranty in an APS has three independent knobs that can be turned to favour the buyer or the seller. Understanding all three is what separates a strong negotiator from a clause-copier. Adjusting one knob alone often leaves a gap the other side can drive through — as the Ontario Court of Appeal demonstrated in Beatty v. Wei.
| Knob |
Buyer Wants |
Seller Wants |
1 · Knowledge Qualifier
Is the rep absolute or qualified by what the seller knew? |
Absolute — "the property has never been used for…"
Seller is liable even without knowledge. |
Qualified — "to the best of the Seller's knowledge and belief…"
Seller can defend with honest ignorance. |
2 · Temporal Scope
When must the rep be true? |
Dual-date — "as of acceptance AND as of the Completion Date"
Locks seller into ongoing truth obligation. |
Signing-only — "as of the date of acceptance"
Post-signing changes don't trigger breach. |
3 · Survival
Can buyer sue after closing? |
Survive & not merge — open-ended post-closing remedy
Doctrine of merger displaced. |
Merges on closing, or survives only X days (e.g. 2 or 7 days)
Cap on post-closing exposure. |
⚠️ The Beatty v. Wei Trap
Even with "shall survive and not merge," the ONCA held the warranty only had to be true at signing — because the clause didn't explicitly state it continued through to closing. Knob 3 alone is not enough. Without Knob 2's dual-date language, a seller who learns of a defect after signing has no contractual obligation to disclose, and the rep remains technically true.
Drafting Templates — Two Ends of the Spectrum
🟢 Maximum Buyer Protection — Absolute · Dual-Date · Surviving
"The Seller represents and warrants, as of the date of acceptance and as of the Completion Date, that the property has never been used for the growth or manufacture of illegal substances. This representation and warranty shall survive and not merge upon completion of this transaction."
🟠 Maximum Seller Protection — Knowledge-Qualified · Signing-Only · Merging
"To the best of the Seller's current knowledge and belief, as of the date of acceptance, the Seller is not aware of the property having been used for the growth or manufacture of illegal substances during the Seller's ownership."
Negotiation Posture:
• When listing — push for Seller-side defaults on all three knobs. Combine with SP-A:8 / SP-A:9 (general merger clauses) for layered protection.
• When negotiating a sign-back — concede Knob 3 (survival) before Knob 1 (absolute liability). A short post-closing window (2–7 days) is far less risky than dropping the knowledge qualifier.
• Watch for buyer-drafted clauses that turn all three knobs at once — that's where seller exposure compounds.
• Cross-reference: this framework underlies checklist item r14 in the Conditions card above (modify "survive and not merge" → time-limited) and clauses SP-A:8, SP-A:9, and SP-B:10 in Sections A and B above.