Agreement of Purchase and Sale in Ontario: Form 100 OREA Line By Line Explained
What is an Agreement of Purchase and Sale?
In real estate, an Agreement of Purchase and Sale, also referred to as a real estate purchase agreement, is used to document the contract details between the home buyer and seller in the Greater Toronto Area, Ontario. There are a few additional forms required for the real estate transaction.
Offer vs Agreement
- When the buyer makes an offer on a house, during the negotiation, the agreement of purchase and sale is referred to as an offer, and it is not binding.
- When the offer is signed by both the home seller and buyer, it becomes a legally binding contract, and it is now called an agreement.
Agreement of Purchase and Sale
- OREA Agreement of purchase and sale is most commonly used in Ontario, which is supplied by OREA (Ontario Real Estate Association), and used by its members, ie. the realtor.
- Subject to the types of properties, OREA Agreement of Purchase and Sale has 2 different forms for residential home resale: OREA FORM 100 and OREA FORM 101. Form 101 is specific for buying a condo and FORM 100 for the other types of houses.
- You can use the Form 120 Amendment to the Agreement of Purchase and Sale for any change after the contract is signed by both parties. For example, a name change.
- A sample template of Form 100 of the Ontario 2000 Revision is available at the bottom of the page. Other major forms are available by clicking this link.
Main Clauses in Form 100 OREA
Detailed Explanation of the Agreement of Purchase and Sale
The date herewith should be the offer date you initiated. The date should be clear in word and number.
Please write your legal name. If there are multiple buyers, please write down all the legal names.
Address and location
In word and number, both should be matching.
- Real estate deposit in Ontario is commonly at 5% of the purchase price. It shows the buyer’s commitment. It is deposited in the listing brokerage trust account. Every brokerage has deposit insurance in case of bankruptcy, etc.
- "Herewith" means the deposit is submitted with the offer at the same time.
- "Upon Acceptance" means the buyer must submit the deposit within 24 hours if the offer is accepted.
- "As Otherwise" described in this Agreement means otherwise specified in the schedules.
BUYERS AGREE TO THE BALANCE
Buyers agree to pay the balance in Schedule A attached to the agreement.
Terms agreed upon by both parties, including conditions, additional deposit, a list of details, etc.
- The irrevocable date is the time and date to identify that the person making the offer is obligated to the offer.
- If the offer is not accepted within the irrevocable period of time, it becomes null and void and the party is no longer obliged to the offer.
Also called closing date. It indicates when the property title is transferred. By that time, the property should be vacant or otherwise stated in the agreement.
Means the documentation related to the transaction. Multiple representation means the brokerage representing 2 or more clients in the same deal/property.
Chattels mean the seller’s personal and movable items, which are not included by default.
Fixture means objects are fixed or attached to the property, by default those objects are included.
RENTAL ITEMS (Including Lease, Lease to Own):
Common items include a hot water tank, furnace, etc.
HST is usually not involved in residential property resales, but it is applicable in case of substantial renovation, improvements, or a new build.
- Commission in real estate is commonly paid by the seller at 2.5% of the home purchase price.
- If the commission collected from the seller is higher than the agreed-upon amount in the agreement, the buyer has no obligation to pay more.
- If the commission collected from the seller is lower than the agreed-upon amount in the agreement, the buyer has to pay the difference.
- If the buyer agent is unable to collect any commission from the seller, the buyer will owe the full amount in the agreement.
- In case the transaction is incomplete due to the buyer’s neglect and default, the buyer still owes the full commission to the buyer agent brokerage.
- If the buyer is introduced or shown a property during the time the agreement is in force, and the buyer purchases it later, but the time of the purchase is within the holdover period, the buyer is still obligated to pay the commission.
- HST applies to the commission.
- The title search date, also called requisition date, is the last date upon which the buyer’s lawyer completes a search at the Land Registry Office. It requires the seller to ensure the title is good and free from encumbrances, and the buyer can continue its present use.
- The lawyer also conducts the non-title search such as outstanding work orders or deficiency notices, etc.
- How to determine the nontitle search date is not easy to understand. A good practice is to remind your lawyer to conduct those searches on time.
- The seller also consents to the buyer’s obtaining those documents from the related authorities.
Takeaway: To avoid unnecessary expenses, the title search would be initiated after the conditions of the contracts are fulfilled.
If you want to make changes to the use of the home after purchase, a zoning by-law may be required. Those potential zoning changes are not guaranteed by the seller. A good practice is to add a clause in the conditions.
- The title to the property is deemed to be good and free from all registered restrictions, charges, liens, and encumbrances except those items listed in the clauses, which comply with municipal and public use for utilities and facilities.
- The buyer agrees to accept the agreement regardless of whether those listed items are disclosed or not.
- If the buyer could not continue the present use or insure the property against fire, or the seller has not disclosed an easement that could materially affect the buyer's decision, the buyer can terminate the agreement.
- A lawyer for each party is required to complete the transaction by electronic registration.
- The exchange of closing funds, non-registrable documents, and other items like keys, are conducted between lawyers. But they may not be at the same time as the registration of the transfer/deed.
DOCUMENTS AND DISCHARGE
- The seller is obliged to provide an existing survey if available, upon the buyer's request.
- However, that old survey may not reflect the changes in the house. The buyer may want to apply for a new survey at the buyer's expense.
- The discharge of any Charge/Mortgage may occur after the completion date.
- To avoid the conflict that the title is good from any encumbrance, the buyer agrees to take the seller’s lawyer's personal undertaking to register the discharge on the title within a reasonable time after closing.
- You have the opportunity to add an inspection condition clause in Schedule A attached to the agreement, in order to inspect the home condition and mechanical components.
- The transaction process may take a few months, and you may want a pre-closing walk-through as well. But this needs the seller’s permission or a condition clause allowing you a pre-closing view.
- Insurance is not transferable, the buyers have to obtain their own insurance starting from the closing day.
- In case of substantial damage before the closing, buyers have the right to terminate the agreement, or take the insurance proceeds insured by the seller, and continue the deal.
The agreement must comply with the Planning Act by closing. If not, the agreement becomes be invalid. The seller must seek consent at his/her own cost to comply with the planning act by completion.
- The seller pays for the transfer/deed. The buyer pays for the Land Transfer Tax Affidavit and the Charge/Mortgage in case the buyer acquires financing from the seller.
- Upon the buyer’s request, the seller promises to provide a statement of compliance with the Planning Act.
The buyer is obligated to pay the seller’s unpaid, non resident related tax under the Income Tax Act. Therefore, to relieve the liability, the buyer needs to ensure one of the following actions:
Statutory Declaration that seller is not a non-resident by completion.
A Certificate that the seller has paid the required tax.
The buyer pays that tax and claims that the amount is credited to the purchase price.
- Certain costs such as property tax, unmetered utility bills, and rent if any, will be calculated proportionally on the closing day.
- The buyer is responsible for those costs on the completion day and after.
- Property tax calculation is based on the property assessment done by Municipal Property Assessment Corporation (MPAC). Reassessment may be done annually.
- In case of tax change, the seller and buyer cannot make a claim against each other or against the brokerage and salesperson except those taxes accrued prior to the completion of the transaction.
Any specific time limit in the agreement must be strictly adhered to. If there is any change in the time limit, it should be documented with an appropriate signature.
A tender is an offer to perform some tasks or to supply goods at a fixed price. More specifically, the seller prepares the documents such as title/deed transfer, and the buyer pays the home price accordingly.
FAMILY LAW ACT
Family Law protects the right and interests of the non-titled spouse on the matrimonial home. If there is no consent signature in the agreement, the seller warrants there is no such need.
UFFI is an environmental hazard. The seller acknowledges and warrants the non-use of UFFI in the building, and he or she isn't aware of any UFFI presence either. This warranty continues after the closing.
LEGAL, ACCOUNTING AND ENVIRONMENTAL ADVICE
It is straightforward. The real estate agent is not a specialist in regards to law, tax, environmental issues. You should hire professionals for advice on those issues.
In case there is a seller take-back mortgage involved, the seller may need to look through the report before lending.
AGREEMENT IN WRITING
Added provisions to the agreement take precedence over the preprint clause if there is any conflict or discrepancy.
If there are any representations, warranties, collateral agreements, or conditions, those should be included in the agreement.
The gender and number of the wording may change accordingly to the context.
TIME AND DATE
It is based on the location of the property.
SUCCESSORS AND ASSIGNS
In case the involving party dies, his or her heirs, executors, administrators, successors, and assigns are bound by the contract.
If the property is a matrimonial home, the non-titled spouse agrees to the sale of the home and signs here. If not, leave it blank.
CONFIRMATION OF ACCEPTANCE
The party who accepts the offer within the irrevocable date signs here. The agreement is binding by both parties at this time.
INFORMATION ON BROKERAGE(S)
Information related to the listing brokerage (seller’s agent) and the cooperating brokerage ( buyer’s agent).
After the offer is accepted, the Agreement of Purchase and Sale requires both parties to sign an acknowledgment that they have received a copy of the accepted Agreement of Purchase and Sale.
COMMISSION TRUST AGREEMENT
The agreement between the listing brokerage (seller’s agent) and the cooperating brokerage ( buyer’s agent) on commission-related issues.
- A schedule is used to add conditions, warranties, etc. It could be listed as Schedule A, Schedule B, etc.
- These schedules are listed on the first page of the agreement of purchase.
- All schedules must be initialed by the parties to the transaction.
- The signature should be the same as it is signed in government documents.
- An electronic signature is legitimate in Ontario home transactions.
SIGN WITH SEAL
The buyer signs the offer under seal. The buyer is obliged to the offer during the irrevocable period.
This guide helps you understand the terms commonly used in the agreement to avoid the hustle to sign the offer before a thorough thought. This guide is not drafted by the lawyer. It is only based on an agent’s interpretation and perspective. Please check and verify with your real estate lawyer for completeness and accuracy.