Summerland & Penticton Okanagan BC Real Estate, Homes For Sale and Revenue Properties - Raymond MAASKE: Time is of the essence. Essence, what's an essence?

Time is of the essence. Essence, what's an essence?

Duhaime's Legal Dictionary defines 'Time of the Essence' as A contractual term requiring performance within a specified time.

The Canadian Law web site states : "time is of the essence" This means that the dates agreed to in a contract must be strictly adhered to. A party who fails to fulfill their promise within the time provided is, therefore, in breach of a fundamental term of the contract and the other gavelparty may sue for damages or specific performance.

A phrase in a contract that means that performance by one party at or within the period specified in the contract is necessary to enable that party to require performance by the other party. Failure to act within the time required constitutes a breach of the contract.

The general rule is that time is not of the essence unless the contract expressly so provides. As a result, with respect to real estate transactions, the modern view is that time is not of the essence unless the parties have manifested such an intent. The same is generally true in construction contracts and in contracts relating to the manufacture of goods. When time is not of the essence, courts generally permit parties to perform their obligations within a reasonable time.

So REALTORS®, if you are not including Time shall remain of the essence clause in your Subject Removals you are really doing your clients a disservice. You are leaving the consequences of failure of specified performance of contract dates up to the interpretation of the Court. 

Here comes da judge.

Scott Leaf Real Estate Marketing & Associates Maple Ridge real estate

your Coquitlam, Port Coquitlam, Pitt Meadows, Maple Ridge, Langley, River Springs and surrounding areas Realtor 

 

 

4 comments • Scott Leaf Real Estate Marketing & Associates • October 26 2011 02:25PM

Comments

I would find that "reasonable time" is harder to define than the "time is of the essence" with deadline dates specified.

Posted by Dan Hopper, Denver Realtor® Advocate/Short Sale/Loan Modification (RE/MAX Alliance, www.danhopper.com) 7 months ago

Scott,

That is the advantage of using standard form contracts provided for use by the industry. In Ontario, the OREA standard form includes this provision. The regulatory requirements obligate a real estate professional to use current forms.

However, many of the FSBO documents do not include this clause, and it can be extremely important.

Brian

Posted by Brian Madigan LL.B. (RE/MAX West Realty Inc., Brokerage (Toronto)) 7 months ago
Hi Brian, in BC our contract clearly has an essence clause too however here sub removal is generally done by printing out a new blank addendum, adding the words "to remove the following subjects" and then listing them. Because a lot of agents write their own clauses and are not legally trained they sometimes destroy the essence clause without knowing it with what they have written. Therefore here it is important to select and add the "Time shall remain of the essence" clause at the end. It is good practice.
Posted by Scott Leaf Real Estate Marketing & Associates (Keller Williams Elite Realty, Port Coquitlam, BC) 7 months ago

Scott,

I have litigated a lot of cases in Ontario, but never came across a case with this clause missing by mistake. That's very trecherous. And, I agree a good number of agents don't really appreciate it's significance in the first place.

Brian

Posted by Brian Madigan LL.B. (RE/MAX West Realty Inc., Brokerage (Toronto)) 7 months ago

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