Many Builders can find it challenging to meet obligations under an Agreement of Purchase and Sale, especially as they work through the ongoing effects of the COVID-19 Pandemic. Accordingly, Tarion provides a builder with guidelines, mainly in Section 5 of Setting and Changing Critical Dates, that if a vendor encounters an unavoidable delay crisis, then within 20 days of being made aware, one should notify a purchaser by sending out notices of the delay.
In such circumstances, and in the event a purchaser files a claim with Tarion, should the vendor have evidence for each home not being deliverable by a firm closing date, a builder/vendor may be able to defend against a claim. However, there could be other circumstances that cause a delay in a home being ready for occupancy.
If a builder needs to further extend a Firm Closing Date, a builder has one of three options:
- Setting a Delayed Closing Date;
- By a mutual agreement, in writing, between vendor and purchaser; or,
- As a result of an Unavoidable Delay, to which proper notice is given.
In the situation of a Delayed Closing Date, there will be delayed closing compensation payable, if it is based on circumstances outside of the unavoidable delay circumstance or outside of a mutual agreement situation.
Alternatively, a vendor and purchaser can agree to sign a mutual agreement to waive delayed closing compensation, and, in lieu of any payments, a purchaser can accept an incentive or upgrade that the vendor would be willing to offer. It is recommended that a purchaser sign a waiver within the mutual agreement that acceptance of any such incentive/upgrade/alterative arrangement with the builder is in full satisfaction for any claims under Tarion, and, a purchaser waives the right to do so upon acceptance. However, an incentive must be assessed by a vendor on a case-by-case basis given the circumstances with each purchaser at the time.