Waiving your right to legal advice on real estate deals can be a dangerous slope.
Buying and selling property is a major investment.
Not only is a lawyer’s advice useful, but it’s also confidential.
Purpose of a Waiver in Real Estate
Say you make a real estate agreement contingent on getting legal advice.
When you waive that condition, you knowingly and intentionally abandon the right to cancel your offer if you subsequently get legal advice.
That’s called a contingency waiver. It means you willingly gave up a condition in your APS (agreement of purchase and sale) that had to be met by a specified deadline for the deal to go through.
As one seller discovered (1824120 Ontario Limited v Matich, 2023 ONSC 938), it can be a bone of contention when you buy or sell real estate in Ontario. What happens if your realtor fails to waive conditions on time.
Waiver of Rights in Real Estate
Buyers and sellers can waive any right in a real estate agreement, as long as it’s legal and the waiver is included in the original offer to purchase. For instance, a professional home inspection can be waived if the right to waive it was included in the APS.
So why is it contentious? Because unless you think to add a waiver clause, you can’t waive a condition. You actually have to hire a professional home inspector and notify the seller’s lawyer when the condition is fulfilled. You actually have to talk to a lawyer if you said you would – and neglected to include the option to waive that right in your APS.
A buyer or seller can’t force you to divulge your lawyer’s advice, but they can require you to either waive the right to legal advice or confirm that you obtained it. Your right to keep your lawyer’s advice confidential.
Waiver vs Fulfillment Notice: What’s the Difference?
Waiving a condition and fulfilling it are very different.
Let’s look at what happens if you make an offer contingent on getting a mortgage in the next 10 days at your preferred interest rate, then win the lottery. Because you have the financing you need, you can use a waiver clause in your agreement to give up or abandon the privilege of cancelling your offer over financing. Waiving a condition means you’ve decided you don’t need that condition in your offer and the sale can proceed without it.
Fulfilling a condition means you did what you said you would, in this case, getting the mortgage you wanted. By submitting an OREA (Ontario Real Estate Association) form 124 Notice of Fulfillment, your realtor informs the seller the mortgage financing condition is fulfilled. The sale can go on when all the conditions in your APS are fulfilled or waived.
That’s important in case your real estate deal goes sideways and the seller disputes your version of events in court. Did you waive your right to get legal advice or fulfill it?
How the Doctrine of Waiver in Contract Law Affects You
The effect of waiving a legal right is that you can no longer rely on it in a real estate transaction. But you can’t actually waive contractual rights, like a contingency clause allowing you to get legal advice, unless you:
- Have full knowledge of your rights.
- And have an unequivocal and conscious intention to abandon these rights.
You may even be able to retract a waiver that you change your mind about. See Saskatchewan River Bungalows Ltd v Maritime Life Assurance Co, 1994 CanLII 100 (SCC),  2 SCR 490.
Which Rights Can’t Be Waived
Canadian contract law protects your legal right:
- to informed consent about what you are signing
- not to be coerced or misled (induced) into signing a contract you disagree with
- to hire your own lawyer
- and much more.
Talk to a real estate lawyer if you are uncomfortable with a contract, uncertain about what you are being asked to do, or worried an aged or mentally incapable family member has signed a contract they don’t understand. What is mentally capacity?
Why You Need a Real Estate Lawyer
Close home purchases or sales quickly and conveniently with Axess Law. Our professional real estate attorneys throughout Ontario go over the fine print in offers to purchase to ensure your legal interests are protected. We explain the real estate closing process and keep your transaction on schedule. Documents your real estate closing lawyer needs.
Our licenced legal team liaises with your realtor and mortgage lender to receive and prepare legal documents required to close your property deal. Your Axess Law real estate lawyer searches title to property for financial claims or construction liens that can block or delay your purchase or sale. Real estate frauds to watch out for.
When you need more time to get mortgage financing, we negotiate with the seller’s lawyer to amend the completion date. What a mortgage lawyer does when you buy or sell.
If the seller declines our request, we review your legal and financial options. Your Axess Law real estate lawyer goes over the agreement of purchase and sale for mutual consent clauses that allow you to end the deal.
We discuss what happens to your good faith deposit if you walk away. Cancelling a real estate transaction can be costly. See the downside risk of losing deposits on house purchases.
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Access lawyers for less in the Greater Toronto Area, Ottawa, or anywhere in Ontario when you buy, sell, or transfer property. Axess Law’s flat fee real estate lawyers are affordable, and our rates are all inclusive (excluding taxes, disbursements, and third-party charges). Axess Law offers you only the legal services you absolutely need. Your final invoice includes no surprises or hidden charges. Your itemized statement of adjustments is explained when we deliver it, and we answer any questions you have about it.
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