A phone call that was supposed to count as a waiver, and did not

The situation

The deadline was five o'clock the next day, and as far as Lusine could tell from the message her family's accountant had sent, it had already been handled. Lusine, a pharmacist, and her siblings Siran, an architect, and Marieke were buying a property together in Woodstock for roughly 900,000 dollars, splitting ownership three ways as a long-term family investment, and their agreement of purchase and sale had a financing condition due to expire. Their family accountant, who had helped with the numbers but was not a lawyer, had called the listing agent the day before to say the financing had come through and the condition was waived. He considered the matter closed.

It was not closed. Under the agreement, waiving a condition required written notice delivered to the seller's side by a specified method before the deadline, a term standard in most agreements of purchase and sale precisely because a verbal statement is hard to prove and easy to dispute later if either side changes its mind. The accountant did not know this. He had handled the family's taxes and some of their financing paperwork for years and had simply assumed a phone call confirming the good news was the same as fulfilling a legal condition, the way confirming a decision to a colleague might close out an ordinary business matter.

Nobody discovered the gap until the siblings' file landed on our desk two days before closing, when we asked, as a routine step, for a copy of the written waiver notice for our closing file. There was no written notice. There was a phone call, made by someone with no authority to bind the transaction and no obligation, or even awareness, that anything beyond a friendly heads-up was required.

This mattered because the deadline for waiving the financing condition had already passed by the time the gap was discovered. If the condition had never been validly waived in writing, the agreement itself could be read as having lapsed on the deadline date, meaning there might be no binding contract left to close at all, regardless of what everyone believed had happened or intended to happen.

The three siblings had already given notice on their respective rental units, arranged movers, and told their families the purchase was proceeding. A deal that might not legally exist anymore, discovered two days before closing, was not a problem any of them had budgeted time or emotional energy to handle.

Why this was harder than it looked

The instinctive fix, calling the seller's agent and saying 'we meant to send this in writing, here it is now,' carries real risk in a situation like this. A financing condition that is not validly waived by the deadline typically means the agreement is at an end on its own terms, not merely defective. If that is the legal reality, then no amount of paperwork produced after the deadline can retroactively revive a contract that has already lapsed. What can happen instead, if both sides agree, is a fresh mutual agreement to treat the deal as still alive on the original terms, but that requires the seller's active, willing cooperation, not just the buyers' good intentions.

That put the seller, a person the siblings had never spoken to directly and knew only through their agents, in an unexpectedly powerful position. If the seller believed the deal had lapsed, they were within their rights to walk away and relist, particularly if property values in the area had moved in their favour since the offer was accepted, or if a better offer had since come in. Whether the seller would cooperate in confirming the deal was still alive depended entirely on what the seller wanted, not on what the siblings needed.

There was also a question of proof. The accountant's phone call had happened, and the listing agent did not dispute that it had taken place or that its content was a clear statement that financing had come through. The dispute, if there was going to be one, was not about whether the siblings intended to waive the condition. It was about whether an intention, however clearly expressed verbally, satisfies a written-notice requirement that exists specifically to prevent this kind of ambiguity from ever needing to be litigated after the fact.

Complicating things further, the siblings could not simply blame their accountant and expect that to matter to the seller. From the seller's perspective, who delivered the notice and why it went wrong verbally was the buyers' internal problem. What mattered to the seller was whether they had a validly binding deal worth honouring, or a lapsed one worth reconsidering, and the seller's own advisors would be looking at exactly that question once they learned of the gap.

Two days is not much time to establish trust with a party you have never met, explain a technical defect without sounding like you are trying to wriggle out of something, and secure a signed document confirming a deal is still alive, all before a closing date that was not going to move on its own.

What we did

1. Confirmed the exact wording of the financing condition and the notice requirement in the agreement. Before approaching anyone, we needed to know precisely what the agreement required, whether it specified a particular delivery method such as fax, email, or personal delivery, and whether any language in the agreement itself offered a way to argue the verbal call could satisfy it, so we could assess the actual legal exposure rather than assume the worst.
2. Documented the phone call and its content in a sworn statement from the accountant. We had the accountant provide a detailed account of the call, including the date, time, and exact words used, creating a clear record that the substance of a waiver had been communicated verbally on time, even though the form required by the agreement had not been met, which mattered for how we framed the situation to the seller's side.
3. Contacted the seller's lawyer directly and disclosed the gap plainly. Rather than waiting to see if the issue would surface on its own, we reached out immediately, explained exactly what had happened, and proposed a straightforward fix: a signed confirmation, dated to reflect the true history, that both sides considered the financing condition satisfied and waived as of the original deadline.
4. Assessed the seller's actual incentive to cooperate before assuming the worst. We asked the seller's lawyer, through appropriate channels, whether the seller had any indication of a better offer or any reason to want out of the deal, and learned the seller was simply moving as planned and had no interest in reopening the property to new buyers this close to their own next purchase.
5. Negotiated a modest concession to secure willing, not just legal, cooperation. Even with no competing interest on the seller's side, we offered a small adjustment, absorbing a minor closing cost the seller would otherwise have carried, to remove any incentive for the seller to treat this as leverage and to keep the retroactive confirmation friendly rather than adversarial.
6. Drafted a mutual confirmation agreement rather than relying on the seller's goodwill alone. The document we prepared had both sides expressly agree, in writing, that the financing condition had been satisfied and treated as waived from the original deadline forward, closing the gap left by the phone call and giving the transaction the written record it had always been missing.
7. Reviewed the rest of the file for any other verbal steps taken without proper documentation. Given that one condition had been handled informally, we checked whether any other steps in the file, deposit confirmations, inspection sign-offs, had also been handled by phone or email that did not meet the agreement's formal requirements, and found none, which let us close the file with confidence rather than lingering doubt.

The outcome

The seller signed the retroactive confirmation the day after we raised the issue, roughly twenty-four hours before the scheduled closing, and the deal closed on the original date and price of approximately 900,000 dollars with no further complications. The small closing-cost concession the siblings offered came to a modest sum, well below what a lapsed deal and a rushed replacement purchase would have cost in time, moving expenses, and lost momentum.

This is a partial outcome rather than a clean one, because the siblings spent a genuinely stressful final two days not knowing whether their purchase would survive, and paid legal fees for an emergency fix that a properly delivered written notice would never have required in the first place. The family accountant's involvement in the financing side of the deal, well-intentioned throughout, had created a gap he had no way of recognizing because written-notice requirements in a real estate contract are not something an accountant's training would typically flag.

Lusine, Siran, and Marieke closed on the property and moved in within the following weeks, and the ownership structure they had planned, three-way co-ownership among siblings, proceeded exactly as intended once the immediate crisis passed. What did not change was the underlying lesson: the deal was always factually sound, financing had genuinely come through, and everyone had always intended to proceed. None of that mattered as much as the paperwork did, until the paperwork finally matched the intention.

The seller's willingness to cooperate, while not something any buyer can count on in every case, made the difference between a two-day scramble and a lost deal; had the seller had any reason to walk, the siblings' financing being genuinely secured would not have saved the purchase on its own. Afterward, the three siblings agreed as a family that any future joint transaction would route every formal legal step, waivers included, through counsel first, whatever other advisors were involved in the numbers behind it.

What you can learn from this