THE RISK IN NOT PROVIDING A RPR BY CLOSING
THE THURSDAY TIDBIT – PRANAV KHEMKA
According to clause 10.1 and 10.2 of the Alberta Real Estate Association Residential Purchase Contract (the “Contract”), the seller or the seller’s lawyer must deliver closing documents, which includes a compliant Real Property Report (“RPR”), to the buyer or the buyer’s lawyer within a reasonable period of time before the completion day.
If the seller is unable to deliver a compliant RPR to the buyer or the buyer’s lawyer before completion day then the buyer’s payment of the purchase price and late interest can be delayed until the buyer or the buyer’s lawyer has had an opportunity to review the document – in accordance with clause 10.9 of the Contract. As you can imagine, any delay in the sale of a home can have a terrifying impact on a seller – especially if they require a portion of the sale proceeds to pay off a mortgage or make a down payment towards a new home purchase.
According to Rule 1 of the Recommended Rules Of Practice Respecting Real Property Reports (the “Rules”), the buyer’s lawyer can’t be compelled to proceed to registration without having an opportunity to review the RPR. As such, if the buyer doesn’t want to take possession of the property without reviewing the RPR first then the possession and adjustment date will be postponed and the buyer won’t be responsible to pay any late interest to the seller.
The logic behind this rule is simple. The RPR is fundamental to the closing process. The risk with proceeding without having an opportunity to review the RPR is too high for a buyer as they lack critical information concerning the property (for example, whether the structures on the property comply with municipal bylaws) and are unable to verify most of the seller’s representations and warranties specified in clauses 6.1 and 6.2 of the Contract.
As such, sellers should be advised by their real estate agents, at the beginning of their professional relationship, about the importance of a RPR and the risks associated with not providing a compliant RPR before completion day to a buyer’s lawyer to ensure they are well informed and won’t be surprised if issues arise during the conveyancing phase of their transaction.
That being said, the seller’s lawyer should use their best and reasonable efforts to accommodate the buyer in obtaining possession of the property. This can include providing a standard undertaking to holdback sale proceeds pending the delivery of a compliant RPR to the buyer’s lawyer and/or the seller compensating the buyer for the cost of the buyer’s title insurance premium.
If you have any questions concerning RPRs, please do not hesitate to contact Khemka Law or counsel of your choosing. We are always here to assist you and your clients. Thank you for your time and consideration.
Pranav Khemka, Barrister & Solicitor
T: (403) 457-9577 | F: (403) 457-9578 | E: firstname.lastname@example.org
Suite 202, 5403 Crowchild Trail NW, Calgary, AB T3B 4Z1 | T: (403) 457-9577 | F: (403) 457-9578
LEGAL: The Thursday Tidbit provides general information and does not constitute legal advice. Circumstances may vary and no lawyer-client relationship is established from the use and reliance of this information. You are strongly advised to seek any legal advice by directly contacting Khemka Law or counsel of your choosing. Khemka Law does not warrant or guarantee the quality, accuracy or completeness of any information found within this Thursday Tidbit.