Minor Agreement Changes ~ Notices, Clarifications or Amendments
From time to time there will be some small glitches in an agreement. Some small matter was incorrect, misspelled, or overlooked in the “heat of the moment”.
The seller is John Smithe. That’s what is says on the Deed, and the listing agreement. Through inadvertence, the “e” was left off his name, and no one noticed including John Smithe, himself. He uses his usual signature, but no one can read that. No one can tell whether it says “Smithe” or “Smith”. It’s just a scrawl.
So, what can we do here? Is this important?
Let’s first determine whether there is any possibility of anyone else in the house with a similar name. This would be more likely with a first name, and more than one generation in the house.
But, assuming that we have the right person, what can we do about this?
The only person truly at risk, would be the buyer. The seller has already signed, and intended to convey the property. We don’t have an identity problem, so the issue is very, very modest. The seller cannot back out of the deal.
Just to be “on the safe side”, we can follow up with a notice, a clarification, or an amendment.
A Notice could simply be in the form of an email from the buyer’s agent. It need not bear the buyer’s signature.
A Clarification could be signed by the buyer and also signed by the seller. This document could be exchanged by e-mail as permitted under the terms of the standard form agreement of purchase and sale.
An Amendment is an amendment to the terms of the agreement. At this point, this document must be sent by fax or delivered in person. Unless, the missing “e” were viewed as very serious, then this step is unnecessary.
All three documents might say something along the following lines:
The parties (buyer and/or seller, as the case may be) confirm and clarify the following:
1) the listing and the registered title describe the Seller as John Smithe,
2) the offer, and the agreement, inadvertently omitted the "e" in the Seller's last name,
3) the final Amendment to the documents correctly note the spelling of the Seller's name, consistent with the listing and registered title,
4) all parties to the agreement are aware of the correct spelling of the name of the Seller as follows:
5) there was never at any time any confusion concerning the identity of the individual executing the documents as Seller.
6) the parties treated all documents as "appropriately amended" upon execution of the Amendment Agreement on xx March 20xx.
The advantage using an email is that only the buyer’s agent signs. With the clarification, both parties sign, but the document can be exchanged by email. When using the amendment, fax or personal delivery methods must be used.
For very minor errors and discrepancies, sometimes the notice or clarification approaches would be quite suitable.
As a caution, if you think that legal advice is required then it probably is. Use the Amendment, that’s the “fail-safe default” approach.
Brian Madigan LL.B., Broker is a Manager at RE/MAX West Realty Inc., Brokerage 416-745-2300.