When a party does not show up for its appointment with the notary
(Update of the article published on April 8, 2013)
You are sitting at the notary’s, desperately waiting for the other party to show up for its appointment. After more than an hour, the other party still does not show up. What is going on? Although the date indicated under clause 11.1 of the Promise to purchase is not a mandatory delay, the consequences can be many for a party that fails to show up at the notary’s on the appointed date. However, if the parties wish to make this a mandatory delay (which would result in the promise to purchase becoming void if the date of signing of the deed of sale is not adhered to), the clause can be amended accordingly.
In some cases, the defaulting party could simply wish to reschedule the appointment with the notary. It is strongly recommended to verify the reasons for this delay and to properly assess the situation, as legal fees could be avoided if the parties agree. In other cases, there is possibility that the buyer no longer wants to purchase or that the seller no longer wishes to sell. In this case, the injured party could initiate an action in title transfer or damages for the prejudice it has suffered. The seller will have to contact his legal advisor to find out how to proceed.
As a preventive measure, the seller, for his part, has the possibility to use clause F2.2 (penalty clause) of Annex F – Financing, which stipulates that a sum of money be deposited in trust in the broker’s or agency’s account, to be given to the seller as liquidated damages in the event the buyer voluntarily blocks the transaction or prevents it from occurring.
In addition to the civil remedies mentioned above, the defaulting buyer or seller is also liable to the agency or broker acting on his own account. In fact, under clause 7.1 (4) of various brokerage contracts (clause 6.1 (4) for the BCP), the defaulting party shall also be responsible for the payment of compensation to the agency or broker acting on his own account who represents it. Likewise, under clauses 7.6 and 10.7 of different promise to purchase forms (clause 10.9 of the PPD form), both the defaulting seller and buyer may be required to compensate the agency or broker acting on his own account who represents the other party by paying him damages equal to the compensation to which he would otherwise be entitled.
For more information on this subject, you may read the following article: Can a promise to purchase be withdrawn?