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Updates to satisfying buyer's conditions changes, effective January 3rd, 2022. Read the September 7th, 2021 news bulletin for more information.

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Buyer's Conditions Updates - Effective January 3rd, 2022

Buyer's Conditions Updates - Effective January 3rd, 2022

Training and more information on the updates to satisfying buyer's conditions.

To view the transcript to the training video, CLICK HERE.

Changes to Satisfying Buyer’s Conditions

Effective January 3rd, 2022, the process of satisfying buyer’s conditions in the Agreement of Purchase and Sale will change significantly.

In response to industry feedback over the original process for satisfying buyer’s conditions, the Commission struck an Agreement of Purchase and Sale Task Force who surveyed the issue of dissatisfaction and recommended changes to the Board. The Board approved the changes and referred the recommendations to the Forms Committee who revised the current real estate forms to reflect the changes to satisfying buyer’s conditions, and developed Form 408: Buyer Waiver of Conditions. The Board approved the changes made by the Forms Committee and an implementation plan by the Commission.

Form 400: Agreement of Purchase and Sale’s clause on buyer’s conditions will be revised to state*:

“The Buyer shall provide the Seller or the Seller’s Agent, on or before _________ a.m./ p.m. Atlantic Time on the date specified above, with Form 408 confirming that all conditions identified in this clause are satisfied and now waived. If the Buyer fails to provide the required form this Agreement shall be deemed terminated. If the Buyer determines, prior to the condition date, that they are not satisfied the Buyer may terminate this Agreement. The deposit shall be returned to the Buyer subject to the applicable NSREC By-laws.”

*All other forms that reference buyer’s conditions are being revised with similar wording to reflect the change.

Changes are being made as a result of feedback from the industry after ongoing issues regarding confusion over the silent confirmation (“no news is good news”) process of satisfying buyer’s conditions where written notice was only sent in cases of dissatisfaction.

These changes only apply to buyer’s conditions in clause 4.1 of the Agreement of Purchase and Sale. They do not apply to clauses on lawyer review, title investigation, and the estoppel certificate.

The Old Way (No News is Good News)

For example, when preparing an Agreement of Purchase and Sale in Nova Scotia, clause 4 highlights the buyer’s conditions. It states that the Agreement is “subject to the buyer, at the buyers expense, securing, conducting or reviewing the following” on or before X date. These conditions are “out clauses” meaning if the buyer provides notice of dissatisfaction, either the buyer or the seller shall be at liberty to terminate the Agreement. There is a checklist of conditional items, including:

  • property disclosure statement
  • restrictive covenants that may affect the property
  • equipment schedule, if not attached
  • financing
  • property inspection(s)
  • insurance
  • other

The parties agree on a condition deadline for the items selected on the checklist. The buyer now has a list of conditions they are responsible for and a deadline they must meet.

The buyer’s conditions are considered satisfactory unless the seller or seller’s agent is notified to the contrary, in writing before the deadline has passed. If the deadline passes, and the buyer has not provided notice of dissatisfaction in writing, it is assumed everything is in order and the transaction can proceed. “No news is good news”.

However, if there is an issue, for example, with the property inspection, the buyer or buyer’s agent must notify the seller or seller’s agent in writing of their dissatisfaction prior to the deadline. At this point, either party is at liberty to terminate.

If the buyer wishes to proceed with the Agreement, they can propose an amendment. The seller can choose to accept the buyer’s amendment, reject the buyer’s amendment and all terms and conditions in the Agreement remain in full force and effect, propose a different amendment, or terminate the Agreement.

Sellers do not receive written confirmation if a buyer has satisfied their conditions. If a buyer is dissatisfied and wants to propose an amendment, they risk the seller triggering a termination over ‘notice of dissatisfaction.’ This discouraged them from attempting to amend an agreement over minor issues, impacting their ability to negotiate.

The New Way (No News Means You Lose)

In the new process, the buyer’s conditions will remain the same: the buyer still have a checklist of items they are responsible for and a condition deadline(s) that is agreed to by both parties.

Once the buyer has completed their list of conditions and are satisfied, they must provide the seller or seller’s agent with written confirmation that they are satisfied and waiving their conditions. The Commission has developed a new form for this purpose: Form 408: Buyer Waiver of Conditions. The revised Agreement of Purchase and Sale requires Form 408 to be provided to the seller or seller’s agent on or before the condition deadline. If Form 408 is not provided to the seller or seller’s agent before the condition deadline, the agreement is deemed terminated. Form 408 confirms that the buyer is satisfied with and waiving those conditions from the Agreement of Purchase and Sale. Once Form 408 has been completed and provided to the seller or seller’s agent, the buyer and seller can proceed with the transaction.

The new process allows the buyer to negotiate new terms to their agreement without the fear of the seller terminating when they propose an amendment. Under the new process, only the buyer may terminate before the specific condition deadline. By providing notice of satisfaction, sellers now have written confirmation that buyers have completed their due diligence and have satisfied all of the conditions per their agreement.

Affected Forms

Effective January 3rd, 2022, the following forms will change to reflect the new process:

  • Form 400: Agreement of Purchase and Sale, clause 4.1
  • Form 402: Resale Condominium Schedule, clause 2.2
  • Form 403: Agreement of Purchase and Sale for New Construction, clause 4.1
  • Form 404: Vacant Land Schedule, clause 2.3
  • Form 406: Mini/Mobile Home Schedule, clause 3.2
  • Form 407: Multi-Unit Residential Income Property Schedule, clause 2.1
  • *New* Form 408: Buyer Waiver of Conditions
  • Form 431: Water and Septic Schedule, clause 2.1

The Commission created Form 408: Buyer Waiver of Conditions, to provide written notice that the buyer is satisfied and waving their conditions from the Agreement of Purchase and Sale. The revised Agreement of Purchase and Sale requires Form 408 to be provided to the seller or seller’s agent on or before the condition deadline. Form 408 came as a result of feedback obtained from the industry survey about buyer’s conditions.

The revised forms become mandatory on January 3rd, 2022. Until January 3rd, licensees must continue using the current forms and following the original process for satisfying buyer's conditions. 

Brokerages that use electronic signature software can request the new forms as PDFs for administrative purposes by emailing the Commission's Communications Officer, Chloe Kenney, This email address is being protected from spambots. You need JavaScript enabled to view it.. 

Important Dates

July 23rd, 2021: Brokers and managing associate brokers notified of the changes.

September 7th, 2021: All licensees notified of the changes.

January 2nd, 2022: Agreements that are signed and accepted up to and including January 2, 2022 will follow the original method of satisfying buyer’s conditions, per the clauses in the agreements.

January 3rd, 2022: The new and revised forms that reflect the changes to satisfying buyer’s conditions go into effect and use of revised forms are mandatory. Agreements that are signed and accepted must now follow the new conditions.

About Form 408: Buyer Waiver of Conditions

Form 408 is a mandatory form created by the Commission, effective January 3rd, 2022 that explicitly waives buyer’s conditions in the Agreement of Purchase and Sale. The buyer must provide the seller or seller’s agent with Form 408 on or before the condition deadline as written confirmation that they have satisfied their list of buyer’s conditions.

Form 408 is a one page form. The form states: “In accordance with the Agreement, the Buyer gives notice to the Seller they are satisfied with and waive the following conditions (specify exact clauses and schedule(s), if applicable):” and has space to list the satisfied conditions. The conditions must be clearly stated, and should specify which clause and schedules is being identified. See example provided below.

 

Form 408 must be completed to identify all conditions that must be satisfied in order to waive the buyer’s conditions clause from the agreement and proceed with the transaction. Licensees can use one or more forms to list all conditions.

Buyers must provide Form 408 to the seller or seller’s agent before the condition deadline as per the terms of the agreement, otherwise the agreement is deemed terminated. No news means you lose.

Terminations & Dissatisfaction

If Form 408 is not provided to the seller or seller’s agent before the condition deadline, the agreement is deemed terminated. “No news means you lose.”

If the buyer is dissatisfied with any of the specific conditions and no longer wants the property, they can terminate the agreement in advance of the condition deadline.

If the buyer is dissatisfied with any of the specific conditions but wishes to proceed with the transaction, they can propose an amendment in advance of the condition deadline. Regardless of what happens, if the buyer wants to proceed with either an amended agreement or with the original terms of the agreement, they must provide Form 408 to the seller or seller’s agent on or before the deadline.

If the agreement is terminated and there is a deposit, it shall be returned to the buyer subject to the applicable NSREC By-laws. This can be done using Form 440: Termination of Agreement of Purchase and Sale and Release of Deposit. If there is no deposit, a termination form is not required.

Responses to Proposed Amendments

If a buyer is dissatisfied with any of the specific conditions but wishes to proceed with the transaction, they can propose an amendment in advance of the condition deadline.

The seller can choose to:

  • accept the buyer’s amendment;
  • reject the buyer’s amendment and all terms and conditions in the agreement remain in full force and effect; or
  • propose a different amendment to the buyer.

This new process does not permit the seller to terminate if a buyer proposes an amendment prior to the condition deadline.

Regardless of what happens, if the buyers wants to proceed with either an amended agreement or with the original terms of the agreement, they must provide the completed Form 408 to the seller or seller’s agent on or before the deadline.

Unaffected Clauses

There are conditions in the Agreement of Purchase and Sale that have not been impacted by this change, including:

  • Lawyer review
  • Title investigation
  • Clause 2.4 of the Resale Condominium Schedule regarding the estoppel certificate

For these clauses, if the buyer is dissatisfied it is still required to provide written notice of dissatisfaction by the deadline specified in the clause.

Key Things to Remember

  • January 3rd, 2022 is when the new process goes into effect and revised forms become mandatory.
  • Buyers still have their list of conditions to satisfy and their deadline.
  • There are specific conditions that are impacted by this process.
  • Once the buyer is satisfied with their conditions, they must complete and sign Form 408: Buyer Waiver of Conditions, and provide it to the seller or seller’s agent on or before the condition deadline.
  • This new form is required to waive the buyer’s conditions from the Agreement of Purchase and Sale. Failure to provide written notice of satisfaction (Form 408: Buyer Waiver of Conditions) now means the agreement shall be deemed terminated.
  • The buyer has the ability to propose an amendment without the seller being able to trigger a termination over notice of dissatisfaction.
  • The buyer still has the ability to terminate the agreement prior to the specific buyer’s condition deadline, however, the seller does not.
  • Remember: No news means you lose!
  • The clauses on lawyer review, title investigation and the estoppel certificate in the condo schedule have not changed.

Tools and Resources

To educate the real estate industry in Nova Scotia on the changes being made to buyer’s conditions, the Commission has created this document as well as:

  • A training video on buyer’s conditions, available at the top of the page.
  • The full transcript of the buyer’s conditions training video, available at the top of the page. 
  • A guide to buyer's conditions forms, available HERE.
  • An mockup of Form 408, available above.
  • A Q&A, available below.
  • Bulletins sent to the industry:

Licensees who have questions about the process of satisfying buyer’s conditions should speak to their broker or managing associate broker.

Licensees who use electronic signature software can request the new forms as PDFs for administrative purposes by emailing the Commission's Communications Officer, Chloe Kenney, This email address is being protected from spambots. You need JavaScript enabled to view it..

 Q&A

 Q: What happens if a buyer submits an amendment and the seller does not respond by the amendment deadline?

A: If the seller does not respond before the amendment deadline, the amendment has no effect. The original wording of the Agreement of Purchase and Sale stands. 

When preparing amendments, caution should be exercised to ensure that amendment deadlines do not coincide with buyer’s condition deadlines. If an amendment is not accepted or is ignored by the seller, the buyer needs sufficient time to decide if they want to proceed with the transaction, which may include submitting Form 408.

Q: What if a buyer requires additional time to address something such as securing financing?

A: If a buyer wants to extend the condition deadline, they need to propose an extension using Form 421: Amendment to the Agreement of Purchase and Sale to the seller or seller’s agent. If accepted by the seller, the condition deadline would be extended to reflect the date agreed on by both parties. If the seller rejects or does not respond to the amendment, the amendment has no effect. The original wording of the Agreement of Purchase and Sale stands.

Q: The condition deadline was missed, Form 408 was not submitted, and the agreement is deemed terminated. What happens if the Buyer and Seller both want to proceed with the transaction?

A: By not submitting Form 408 prior to the condition deadline, the Agreement is deemed terminated. If both parties wish to proceed, the buyer can submit a new offer. Parties in this situation should be referred to their legal counsel. 

Q: Do all satisfied conditions have to be completed on the same Form 408 or can a buyer complete multiple forms?

A: A buyer can submit one or more Form 408s to notify the seller of satisfied conditions. The most important thing is whether you use one form or multiple forms, the form(s) must be submitted on or before the condition deadline(s).

Q: How do I fill out the Buyer Notice section of Form 408?

A: The recommended practice would be to site each individual condition. Example:

Form 400, Clause 4.1:

  • Financing
  • Property Inspection
  • Insurance
  • Property Disclosure Statement
  • Equipment Schedule

Form 431, Clause 2.1, a-c

The Nova Scotia Real Estate
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Nova Scotia real estate industry.

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