The Nova Scotia Real Estate Commission is responsible for protecting the best interests of the public. In a recent press release, they've brought attention to a scenario which creates vulnerability for home buyers and we want to make sure you know what to do about it.
Before I dive into how it affects you, I need to explain a few things regarding the agreement of purchase and sale:
- An Amendment - A change to the purchase contract (i.e changing a closing date, requesting home inspection repairs)
- Notice of dissatisfaction - A buyer or seller delivers notice in writing that they are not comfortable with an "out clause" in the contract (financing, lawyer review, home inspection) and they are not proceeding with the purchase. A termination then follows, issued by either party.
The position of NSREC is that if you submit an amendment requesting home inspection repairs, the seller may interpret that as Notice of Dissatisfaction. If they do, the seller would be at liberty to terminate the transaction and kick you to the curb. Instead of creating a black and white scenario where there is a clear answer, they suggest you seek legal advice. It is all too vague as you'll notice in their statement below:
"It is crucial the written notice of dissatisfaction is clearly written when provided to the seller. If the out clause explicitly states the buyer is providing notice of dissatisfaction, either party can terminate. However, even without specifically using the word “dissatisfaction” the seller and/or their legal counsel could interpret the clause as notice of dissatisfaction. If it is interpreted as notice of dissatisfaction, it may require the seller and/or their legal counsel to defend their interpretation if they are challenged by the buyer."
What does this mean for you?
At first glance, it would appear you shouldn't dare ask for any repairs to deficiencies found during a home inspection. Yet, the entire purpose of a home inspection is to uncover issues that were unknown. If the items uncovered are of substantial cost, the buyer should be able to request they be repaired without fear of the seller killing the deal. The inspection amendment is a negotiation and the seller can opt against completing repairs. However, this should not give them the ability to terminate a transaction. It should be up to the buyer to determine whether or not they are comfortable proceeding with the purchase.
This is infinitely more important in a hot market like we are currently experiencing in Nova Scotia. Competition is greater than ever before and the chance for backup offers is very high. Home sellers will likely want to "interpret" amendments as notice of dissatisfaction far more often if they have a better offer waiting in the wings. This press release gives them license to do it.
How to tackle it
Until NSREC changes their stance to make it mandatory that the words "Notice of Dissatisfaction" are used when providing Notice of Dissatisfaction (simple right?) we have to include the following in our purchase contracts.
"Any amendments to the Agreement of Purchase and Sale received by either party will not be deemed as notice of dissatisfaction. If an amendment is rejected, all terms and conditions in this agreement will remain in full force and effect."
The solution is not very difficult, but it is frustrating that we have to come up with a clause to protect the public when it should already exist in the standard forms. Whatever the case, ensure your REALTOR is educated and understands the need to protect your best interests.
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Chris Perkins, Broker/Owner
HaliPad Real Estate Inc.