Form 408 & Buyer's Conditions
Form 408 & Buyer's Conditions
August 27, 2021
Revised April 17, 2025
The current process of satisfying buyer’s conditions and Form 408 has been in effect since January 3, 2022. This page includes information about:
- The process of satisfying buyer’s conditions
- The clauses that use notice of dissatisfaction
- The forms
- Form 408: Buyer Waiver of Conditions
- When a buyer is not satisfied with their conditions or needs more time
- Important reminders when using amendments related to Form 408, including:
- When and why buyers would propose amendments related to buyer’s conditions
- The importance of timelines
- A seller’s options for responding
- What to do when an agreement terminates
- A message from RELANS
- Previous bulletins about buyer’s conditions and Form 408
- Satisfying buyer’s conditions prior to January 3, 2022: the old process, why it changed, and how
- Training resources
The Process of Satisfying Buyer's Conditions
When purchasing a property in Nova Scotia, buyers can make their offer conditional on being satisfied with certain conditions, such as inspections or securing financing.
For most residential resale transactions, this typically includes items listed in clause 4 of the APS (PDS, financing, property inspection, etc.), but may include other conditions depending on the type of property, for example, vacant land, a mini/mobile home, new construction, a multi-unit residential income property or includes a well or septic system.
As part of an accepted APS, the parties agree on a condition deadline for the items selected in Clause 4.1 buyer’s conditions. To complete the transaction, the buyer must exercise their due diligence and satisfy themselves with the conditions. Once satisfied, they must then provide written notice waiving those conditions by completing and submitting Form 408: Buyer Waiver of Conditions to the seller or the seller’s licensee on or before the condition deadline. The conditions being waived must be clearly indicated on the form. By providing written notice of satisfaction, sellers have confirmation that buyers have satisfied all applicable conditions per their agreement and the parties can continue with the transaction.
If Form 408 is not provided to the seller or seller’s licensee before the condition deadline waiving all applicable conditions, the agreement is deemed terminated.
Clauses That Use Notice of Dissatisfaction
The clauses in the APS that require written notice of satisfaction and Form 408 state that Form 408 is required. There are other clauses in the APS that require written notice of dissatisfaction, not satisfaction, including lawyer review, title investigation, and the estoppel certificate. For this type of clause, notice is only provided to the seller or seller’s licensee if the buyer is not satisfied. If the buyer is satisfied, no action is taken.
The Forms
Clauses on satisfying buyer’s condition in real estate exists within:
- 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
- Form 431: Water and Septic Schedule, clause 2.1
An example of the clause, as used in Form 400: Agreement of Purchase and Sale (APS) is shown below:
4.1. This Agreement is subject to the Buyer, at the Buyer’s expense, securing, conducting or reviewing the following on or before the _________ day of _________________, 20_________ (check the applicable boxes):
□ Property Disclosure Statement
□ Any restrictive covenants that may affect the Property
□ Equipment Schedule, if not attached
□ Financing
□ Property Inspection(s)
□ Insurance
□ Other: _____________________________________________________
□ Other: _____________________________________________________
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.
(The other forms with buyer’s conditions follow the same process but have different lists of conditions to satisfy, specific to that form.)
About Form 408: Buyer Waiver of Conditions
Form 408: Buyer Waiver of Conditions is a one-page mandatory form created by the Commission that is used to explicitly waive buyer’s conditions. Form 408 is completed by the buyer and provided to the seller (or seller’s agent) with Form 408 on or before the condition deadline as clear written confirmation that they have satisfied their list of buyer’s conditions.
Form 408 has one clause, which 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):”
Below the clause is space to list all the satisfied conditions.
There are two important requirements to Form 408: one, clearly listing all conditions and two, meeting the deadline. Failure to meet one or both of these requirements will result in the transaction terminating.
- Clearly listing all forms and conditions: All conditions the buyer was required to satisfy and waive are must be clearly listed in Form 408. At a minimum, licensees must identify the form and exact clause number. For example, to waive all of the conditions listed in the buyer’s conditions clause, the licensee would write/type “Agreement of Purchase and Sale, clause 4.1”. If licensees choose to add an extra step and individually list the specific conditions, they must all be listed on the form. Even if Form 408 is submitted prior to the deadline, if the licensee misses one of the checked conditions, regardless of intent, the Agreement will be deemed terminated upon expiry the condition deadline, because all buyer’s conditions were not waived by the deadline.
- Meet the deadline (No news, you lose): Form 408, with all applicable conditions recorded on the form, must be provided to the seller or seller’s licensee on or before the condition deadline. If all applicable conditions are not waived by the deadline, the agreement is deemed terminated. Licensees cannot submit a completed Form 408 after the deadline has passed, because the Agreement has already terminated.
An example of how to complete the form is below:
If a Buyer is Not Satisfied With Their Conditions or Needs More Time
Unsatisfied buyer, but wants to proceed: If a buyer is not satisfied with their conditions, but still wants to proceed with the transaction, the buyer’s licensee can submit an amendment to the seller to try and negotiate a resolution. The amendment must be submitted to the seller for acceptance with an open-until deadline that expires far enough in advance of buyer’s condition deadline to give the buyer time to make a decision if the seller does not accept the amendment.
For example, the property inspection reveals a problem with the roof and the buyer wants it fixed before closing at the seller’s expense. The buyer’s licensee submits this amendment with an open-until deadline that expires three days before the buyer’s condition deadline. This gives the buyer three days to explore their options, should the seller reject the amendment.
A buyer submitting an amendment does not put the seller at liberty to terminate the transaction. The seller can choose to accept, reject, or ignore the amendment, or they could propose a different amendment. If an amendment is accepted, those terms go into effect. If an amendment is rejected or ignored, the original terms and conditions in the Agreement remain in full force.
Unsatisfied buyer and doesn’t want to proceed: If a buyer is not satisfied with their conditions and they are unwilling or unable to proceed, they can either proactively submit a termination form to end the transaction, or do nothing and the agreement will automatically terminate when the buyer’s conditions deadline expires.
Important Reminders When Using Amendments Related To Form 408
When and Why Buyers Would Propose Amendments Related to Buyer's Conditions
To propose an amendment, licensees use Form 421: Amendment to the Agreement of Purchase and Sale.
Buyers can propose an amendment related to Form 408 and satisfying buyer’s conditions under two different circumstances:
- If the buyer is dissatisfied with a condition but wants to proceed with the transaction, they can propose an amendment to the seller to rectify the issue and proceed with the transaction; or
- If the buyer needs more time to satisfy their conditions, they can propose an amendment to the seller that the buyer’s condition deadline be extended.
Importance of Timelines
If a buyer wants to submit an amendment, they must do so before the original buyer’s condition deadline, allowing sufficient time for a seller to respond and for the buyer to weigh their options if the seller does not accept the amendment.
If the deadline for buyer’s conditions has passed and the conditions were not waived by the deadline, the agreement terminates. Terminated agreements cannot be resurrected by amendment. This also applies to amendments accepted after the buyer’s conditions deadline has passed, even if the buyer originally submitted them before the deadline.
Licensees must ensure their client’s interests are protected. When preparing amendments, the open-until date and time must be before the original buyer’s conditions deadline. If a seller rejects or ignores the amendment, the buyer needs sufficient time to decide if they want to proceed with the transaction and submit a completed Form 408 before the original deadline, or to just allow the Agreement to terminate.
Seller's Options for Response
The seller can choose to accept, reject, or ignore the amendment, or propose a different amendment. If an amendment—either the buyer’s original amendment or the amendment proposed by the seller—is accepted, those terms go into effect. If an amendment is rejected or ignored, all original terms and conditions in the agreement remain in full force and effect, including deadlines.
If an Agreement Terminates
If the agreement is terminated and there is a deposit, it will be returned to the buyer subject to the applicable NSREC By-laws, which requires written mutual release to be submitted to the brokerage holding the funds. 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.
If an Agreement is terminated but both the buyer and seller want to continue with buying/selling the property, a new offer must be prepared and accepted. A terminated or “dead” agreement cannot be resurrected.
In situations where a brokerage is holding a deposit in their trust account and the transaction terminates, whether from not waiving buyer's conditions by submitting Form 408 before the deadline or for any other reason, and the parties enter into a new agreement within 48 hours, the deposit can stay in the brokerage’s trust account. To do this, licensees must have written mutual consent by both parties (buyer and seller) that includes clear direction to re-designate the deposit to the new agreement. This can be done with Section 2 of Form 440: Termination of Agreement of Purchase and Sale and Release of Deposit, or any other written direction that includes the signatures of both parties. The re-designation of the deposit must be clearly documented on the new Agreement of Purchase and Sale as well as all trust account records.
Message from RELANS
The Real Estate Lawyers Association of Nova Scotia (RELANS) has reached out to the Commission regarding concerns that members [of RELANS] are frequently being asked to "revive" contracts that have been terminated because a Form 408 was incomplete or not filed on time.
RELANS has said that once an executed agreement of purchase and sale has been deemed terminated, legal counsel does not have the ability to revive the contract or to create a new contract on behalf of their client just by emailing the other party’s legal counsel.
Licensees must remember that buyer’s conditions include an automatic termination clause in cases where Form 408 is not provided as required. By failing to submit a complete Form 408 by the buyer’s conditions deadline, the Agreement will be deemed terminated. In order to proceed with the transaction, licensees must ensure a buyer is satisfied with their conditions, and that Form 408 is completed correctly and provided before the deadline in the agreement.
If both parties want to proceed after a transaction is deemed terminated, the buyer and seller must sign a new Agreement. Legal counsel cannot revive a terminated agreement.
Bulletins About Buyer’s Conditions and Form 408
September 7, 2021: Buyer's conditions updates, effective January 2022
September 17, 2021: APS Changes Reminder
November 4, 2021: Reminder: Updated Forms in January 2022
December 14, 2021: Important Changes to Buyer's Conditions in January 2022
December 22nd, 2021: Everything You Need to Know for January 3rd
January 18, 2022: Correction to Form 402: Resale Condominium Schedule
March 31, 2022: Form 408: Buyer Waiver of Conditions
March 23, 2023: Reminder - Form 408: Buyer Waiver of Conditions
June 28, 2023: Form 408: Buyer's Waiver of Conditions
April 17, 2025: Updated Resources on Form 408 and Satisfying Buyer’s Conditions
Bulletins sent to brokers/manging associate brokers
July 23, 2021: Broker announcement bulletin
August 30, 2021: Broker reminder bulletin
November 8, 2021: Broker Reminder: Brokers Responsible for Updated Forms Training
Satisfying Buyers Conditions Prior to January 3, 2022: The Old Process, Why it Changed, and How
The process of satisfying buyer’s conditions changed significantly in response to industry feedback after ongoing issues regarding confusion over the previous silent confirmation (“no news is good news”) process of satisfying buyer’s conditions where written notice was only sent in cases of dissatisfaction.
Sellers did not receive written confirmation if a buyer had satisfied their conditions. If a buyer was dissatisfied and wanted to propose an amendment, they risked 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 Commission struck an Agreement of Purchase and Sale Task Force to review the issues with satisfying buyer’s conditions and recommend changes. The recommended changes were approved by the Board of Directors who referred the matter to the Forms Committee to revise existing forms and develop Form 408: Buyer Waiver of Conditions. The Board approved the committee’s recommendations and the Commission implemented the changes, effective January 3, 2022.
Brokers were notified in advance in July 2021, and the rest of the industry was notified in September 2021.
TRAINING RESOURCES
The resources below were created and shared by the Commission in 2021, prior to the effective date, to train and educate licensees on Form 408 and the changes to satisfying buyer’s conditions.
Buyer’s Conditions Update Training Video
Training Video Transcript
Forms Changes
Guide to Buyer's Conditions Forms
