Published on: April 08, 2013
Article number: 122383

Clause 10.5 of the promise to purchase... to ward off unpleasant surprises

Should the buyer or the seller be notified, before the signing of the deed of sale, of any defect or irregularity whatsoever affecting the declarations and obligations of the seller, the buyer has a recourse provided under clause 10.5 of the Promise to purchase form (for the Promise to purchase – Divided co-ownership (PPD) form, it’s under clause 10.7). If the buyer learns that the immovable has a defect or irregularity (e.g. an inground pool encroaching on a Hydro-Québec servitude), he is not bound to purchase the immovable with this irregularity.

The SELLER will have a period of twenty-one (21) days following receipt of a notice uncovering the problem to notify the buyer in writing that he has remedied that defect or irregularity at his expense or that he will not remedy to it. If the seller informs the buyer that he is unable to remedy the problem, the buyer has five days following receipt of a notice from the seller to this effect or following the expiry of the twenty-one (21) day period in the absence of any notice to exercise one of the two following options:

  • to buy with the alleged defects or irregularities mentioned. Consequently, the SELLER’s declarations and obligations shall be reduced accordingly; or
  • render the transaction null and void. If the buyer chooses the latter option, he may ask that all costs reasonably incurred by the BUYER and the SELLER in this transaction be borne only by the SELLER (notary, inspection, mortgage application fees, etc.).

However, the buyer must make sure he replies within the five-day period, otherwise the promise to purchase shall become null and void and each party shall be responsible for its own costs.

It is very important to note that it’s the contracting parties that must correspond personally, and not the real estate brokers.