- A condition clause in an APS typically specifies not just what has to happen — mortgage approval, a satisfactory inspection, and so on — but exactly how and by when the benefiting party…
- A properly executed waiver generally needs to satisfy all of the following: - [ ] In writing — a verbal "we're good to go" between agents isn't a valid waiver - [ ] Signed by the party,…
- Any of these can leave a deal in an unclear state — arguably still conditional, arguably terminated — exactly the kind of ambiguity that leads to disputes between buyer and seller.
Conditions in an Ontario Agreement of Purchase and Sale — financing, home inspection, lawyer review, sale of a buyer's current property — exist to protect a party until something specific is confirmed. But a condition isn't automatically satisfied just because things worked out. In most agreements, it has to be formally waived, or fulfilled, and how to waive a condition properly matters just as much as the underlying decision to do so.
A waiver that's late, unclear, or delivered the wrong way can fail to take legal effect, even if everyone involved assumed the deal was moving forward. That gap between "I meant to waive it" and "I validly waived it" is where real disputes happen.
Why the Mechanics of Waiving a Condition Matter So Much
A condition clause in an APS typically specifies not just what has to happen — mortgage approval, a satisfactory inspection, and so on — but exactly how and by when the benefiting party must confirm the condition is met, or waive it. If that process isn't followed precisely, the condition may not be validly dealt with, regardless of the parties' actual intentions.
Because a firm, binding deal turns on whether conditions were properly waived, this is one of the more consequential mechanical steps in a real estate transaction.
The Requirements of a Valid Waiver
A properly executed waiver generally needs to satisfy all of the following:
- [ ] In writing — a verbal "we're good to go" between agents isn't a valid waiver
- [ ] Signed by the party, or parties, who has the benefit of the condition
- [ ] Delivered, not just drafted — the notice has to actually reach the other side or their representative, using the method the agreement specifies
- [ ] On time — delivered by the deadline stated in the condition clause, not merely dated by that deadline
- [ ] Complete — waiving the correct condition, by the correct party, in the correct agreement, which is an easy thing to get wrong when there are multiple conditions or multiple offers in play
Common Ways a Waiver Goes Wrong
| Mistake | Possible consequence |
|---|---|
| Waiver sent verbally or informally, with no written notice | May not count as a valid waiver at all |
| Notice signed but not actually delivered by the deadline | Condition may be treated as not satisfied or waived in time |
| Wrong condition referenced, or wrong party signs | Waiver may be ineffective or open to dispute |
| Delivered through a method not specified in the agreement | Delivery may not be considered valid notice |
| Assuming silence counts as a waiver | Silence generally does not waive a condition on its own |
Any of these can leave a deal in an unclear state — arguably still conditional, arguably terminated — exactly the kind of ambiguity that leads to disputes between buyer and seller.
"Time Is of the Essence" and Why Deadlines Are Strict
Ontario real estate agreements typically include a "time is of the essence" clause, a long-standing feature of Canadian contract law that generally means deadlines in the agreement are to be treated strictly, not as approximate targets. In this context, that means a waiver delivered even slightly after the stated deadline may not be effective, and a condition that isn't satisfied or waived by its deadline can allow the agreement to come to an end.
This is exactly why "I sent it a bit late, but everyone knew we were proceeding" is a risky position to be in. Good faith and informal agreement between the parties don't necessarily substitute for a validly delivered, on-time written waiver.
A Simple Process to Follow When Waiving a Condition
- Reread the condition clause itself — confirm the exact deadline, required form, and delivery method before doing anything else.
- Confirm with your lawyer that the condition is actually satisfied, or that you genuinely intend to waive it without it being satisfied, if the agreement allows that.
- Have your lawyer prepare the written waiver notice, referencing the correct condition and agreement.
- Deliver it using the specified method, with enough time buffer before the deadline — don't wait until the last hour.
- Confirm receipt by the other side or their lawyer, and keep that confirmation on file.
Frequently asked questions
Can I waive a condition by just telling my realtor I'm ready to proceed?
Generally, no — most agreements require a written waiver notice delivered to the other side, not just an informal confirmation to your own agent. Check the specific wording of your condition clause.
What happens if I miss the deadline to waive a condition?
Depending on the wording of the clause, the condition may be treated as not fulfilled, which can allow the agreement to come to an end. This is one of the most common, and most avoidable, ways a deal falls apart.
Can a condition be partially waived?
It depends on how the condition is drafted. Some conditions are all-or-nothing; others may allow a party to waive part of a requirement. This is exactly the kind of question to bring to your lawyer rather than assume.
Do both the buyer and seller need to sign a waiver?
Typically only the party who has the benefit of the condition needs to sign and deliver the waiver notice, but the specific agreement should always be checked, since wording varies.
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