One of the more alarming trends that I have noticed of late
is that some Realtors have a habit of making Agreements of Purchase
and Sale conditional upon the happening of some event, such
as financing, home inspection, etc. for a period of "X"
banking days following the date of acceptance of the said Agreement
Conditional clauses should always be clear. Using the term "banking
days" could lead to problems because it is unclear what
"banking days" means.
There have been many cases reported throughout Canada dealing
with the legal definition of "banking days". The general
theme throughout all of the cases is that banking days do not
include Saturdays or Sundays (Dawnstar Development Inc. v. Ross
- Nova Scotia - 89 N.S.R. (2d) 265; Fox v. Inverson et al -
NewBrunswick - 62 N.B.R. (2d) 435; McDiarmid v. Bearss - Ontario
-(1975) 7 O.R. (2d) 370).
The case of Fox v. lverson states that Saturdays, Sundays and
Provincial holidays should be excluded from the calculation
of time based upon "banking days". In Dawnstar Developments
Inc. v. Ross, the Court held that one of the items that a Judge
could look at in determining the meaning of the words "banking
days" in a contract for the sale of land was what the normal
banking practices respecting hours and days of operation are.
The Court went on to indicate that the Trial Judge was free
to interpret the contract. In light of electronic banking, automated
banking machines and branchless banking, it then becomes a real
concern as to how a Court today or in the near future would
interpret the phrase "banking days". Nobody wants
uncertainty in an Agreement of Purchase and Sale, and a Realtor
who inadvertently creates uncertainty could be responsible for
damages that flow from that drafting mistake.
The bottom line in all of this is that we strongly recommend
that you never use the phrase "banking days" in reference
to the timing of a condition in an Agreement. Instead, you should
clearly indicate the point in time upon which a condition becomes
null and void or must be fulfilled. That point in time should
be referenced by way of an hour and date. The more detail you
provide for the mechanism of any condition, the easier it is
to interpret same.
Korman & Associates has a long standing tradition of
providing assistance to real estate professionals. Should you
require assistance with respect to the wording of any clause
such as a condition clause, or, should you desire copies of
the legal research referred to herein, please do not hesitate
to contact Korman & Associates. |
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