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Ontario New Home Warranties Plan Act
Loi sur le Régime de garanties des logements neufs de l’Ontario

ONTARIO REGULATION 165/08

WARRANTY FOR DELAYED CLOSING OR DELAYED OCCUPANCY

Historical version for the period June 21, 2012 to June 30, 2012.

Last amendment: O. Reg. 160/12.

This Regulation is made in English only.

Definitions

Definitions

1. In this Regulation,

Note: On July 1, 2012, section 1 is amended by adding the following definition:

“common elements condominium corporation”, “phased condominium corporation” and “vacant land condominium corporation” have the same meaning as in subsection 1 (1) of the Condominium Act, 1998;

See: O. Reg. 160/12, ss. 1 (1), 6.

“condominium home” means a home of a type described in clause (c) of the definition of “home” in section 1 of the Act;

“condominium phase” has the meaning set out in the definition of “phase” in subsection 145 (3) of the Condominium Act, 1998;

“condominium project” means the land and interests appurtenant to the land, as the land and interests are described or proposed to be described in any description required by the Condominium Act, 1998 and includes units and proposed units, as those terms are defined in that Act, that are to be used as homes;

“freehold home” means a home of a type described in clause (a) or (b) of the definition of “home” in section 1 of the Act;

Note: On July 1, 2012, section 1 is amended by adding the following definition:

“parcel of tied land” means a parcel of land described in clause 139 (1) (a) of the Condominium Act, 1998 to which a common interest of an owner in a common elements condominium corporation attaches under clause 139 (2) (a) of that Act;

See: O. Reg. 160/12, ss. 1 (1), 6.

“phased condominium corporation” and “vacant land condominium corporation” have the same meaning as in subsection 1 (1) of the Condominium Act, 1998;

Note: On July 1, 2012, the definition of ““phased condominium corporation” and “vacant land condominium corporation”” is revoked. See: O. Reg. 160/12, ss. 1 (2), 6.

“purchase agreement” and “purchaser” have the same meaning as in Regulation 892 of the Revised Regulations of Ontario, 1990 (Administration of the Plan) made under the Act;

“vacant land condominium home” means a home constructed on a unit in a vacant land condominium corporation and sold by a vendor to a purchaser at the same time as the unit, where occupancy of the home is not provided before the closing of the sale of the unit. O. Reg. 165/08, s. 1.

Note: On July 1, 2012, the Regulation is amended by adding the following section:

Non-Application of Regulation

Contracted homes

1.1 This Regulation does not apply to a contracted home within the meaning of Regulation 892 of the Revised Regulations of Ontario, 1990 (Administration of Plan) made under the Act. O. Reg. 160/12, s. 2.

See: O. Reg. 160/12, ss. 2, 6.

Purchase Agreements Entered into before July 1, 2008

Delayed closing, freehold homes

2. (1) This section applies to a purchase agreement that the parties have entered into before July 1, 2008 for a freehold home with a closing date fixed on or after September 1, 1988. O. Reg. 165/08, s. 2 (1).

(2) Every vendor under a purchase agreement to which this section applies warrants to the owner that the vendor shall comply with the Addendum to the purchase agreement that is set out in paragraph 12 of section 1 of Regulation 894 of the Revised Regulations of Ontario (Terms and Conditions of Registration of Builders and Vendors) made under the Act. O. Reg. 165/08, s. 2 (2).

(3) Every vendor under a purchase agreement to which this section applies warrants to the owner that the vendor shall compensate the owner in accordance with subsection (4) in the event of,

(a) a delay in closing that is more than five days beyond the later of the date originally fixed for closing the purchase agreement and the closing date as extended under clause (6) (a) or (b), if the delay commences on or before June 30, 2009; or

(b) a delay in closing beyond the later of the date originally fixed for closing the purchase agreement and the closing date as extended under clause (6) (a) or (b), if the delay commences after June 30, 2009. O. Reg. 165/08, s. 2 (3).

(4) The compensation mentioned in subsection (3) shall be for all direct costs caused by the delay that the owner incurs in an amount that does not exceed $100 a day for living expenses and $5,000 in total. O. Reg. 165/08, s. 2 (4).

(5) Subsection (3) does not apply to the period of delay in closing caused by a strike, fire, flood, act of God or civil insurrection. O. Reg. 165/08, s. 2 (5).

(6) Subject to paragraph 5 of the Addendum mentioned in subsection (2), subsection (3) does not apply if,

(a) the vendor extends the closing beyond the original closing date after giving written notice to the purchaser at least 65 days before the original closing date; or

(b) the vendor extends the closing for not more than 15 days beyond the original closing date or beyond the extended closing date mentioned in clause (a), after giving written notice to the purchaser at least 35 days before the original closing date or the extended closing date mentioned in clause (a). O. Reg. 165/08, s. 2 (6).

(7) A breach of the warranty described in subsection (3) is a breach of warranty for the purposes of subsection 14 (3) of the Act. O. Reg. 165/08, s. 2 (7).

(8) No claim for compensation under subsection (3) may be made unless,

(a) the transaction closes; and

(b) the claim is made by an owner within one year after the date upon which the home is completed for possession. O. Reg. 165/08, s. 2 (8).

(9) If a claim for compensation under subsection (3) is made, compensation shall be calculated from the later of the original closing date and the closing date as extended under clause (6) (a) or (b). O. Reg. 165/08, s. 2 (9).

Delayed occupancy, condominium homes

3. (1) Subject to subsections (2) and (3), this section applies to a purchase agreement that the parties have entered into on or after April 1, 1991 and before July 1, 2008 for a condominium home. O. Reg. 165/08, s. 3 (1).

(2) If, before July 1, 2008, parties have entered into one or more arm’s length purchase agreements in good faith for condominium homes in a condominium project, other than one involving a phased condominium corporation or a vacant land condominium corporation, this section applies to all purchase agreements for all condominium homes in the condominium project and section 6 does not apply to any of those purchase agreements. O. Reg. 165/08, s. 3 (2).

(3) If, before July 1, 2008, parties have entered into one or more arm’s length purchase agreements in good faith for condominium homes in a condominium phase, this section applies to all purchase agreements for all condominium homes in the condominium phase and section 6 does not apply to any of those purchase agreements. O. Reg. 165/08, s. 3 (3).

(4) Every vendor under a purchase agreement to which this section applies warrants to the purchaser that the vendor shall compensate the owner in accordance with subsection (5) in the event of,

(a) a delay in occupancy of the condominium home that is more than five days beyond the later of the confirmed occupancy date fixed as set out in subsections (7) and (8) and the confirmed occupancy date as extended under clause (12) (a) or (b), if the delay commences on or before June 30, 2009; or

(b) a delay in occupancy of the condominium home beyond the later of the confirmed occupancy date fixed as set out in subsections (7) and (8) and the confirmed occupancy date as extended under clause (12) (a) or (b), if the delay commences after June 30, 2009. O. Reg. 165/08, s. 3 (4).

(5) The compensation mentioned in subsection (4) shall be for all direct costs caused by the delay that the purchaser incurs in an amount that does not exceed $100 a day for living expenses and $5,000 in total. O. Reg. 165/08, s. 3 (5).

(6) Subsection (4) does not apply to a period of delay in occupancy caused by strike, fire, flood, act of God or civil insurrection. O. Reg. 165/08, s. 3 (6).

(7) Every purchase agreement to which this section applies shall contain a confirmed occupancy date or a tentative occupancy date, clearly identified as such. O. Reg. 165/08, s. 3 (7).

(8) If the purchase agreement contains a tentative occupancy date, a confirmed occupancy date shall be established by written notice delivered to the purchaser,

(a) not more than 30 days after the completion of the roof slab or of the roof trusses and sheathing, as the case may be, or on an earlier date or event set out in the purchase agreement; and

(b) at least 120 days before the confirmed occupancy date. O. Reg. 165/08, s. 3 (8).

(9) A confirmed occupancy date established under subsection (8) shall not differ from the tentative occupancy date unless the purchase agreement so permits. O. Reg. 165/08, s. 3 (9).

(10) If a tentative occupancy date has been given and the vendor fails to set a confirmed occupancy date as specified in subsection (8) at least 90 days before the tentative occupancy date, the tentative occupancy date becomes the confirmed occupancy date for the purpose of calculating compensation under subsection (4). O. Reg. 165/08, s. 3 (10).

(11) If the vendor is able to provide occupancy before the confirmed occupancy date, the vendor warrants that occupancy before that date will not be required unless the purchaser consents in writing, and upon such consent, the revised date becomes the confirmed occupancy date for the purpose of calculating compensation payable under subsection (4). O. Reg. 165/08, s. 3 (11).

(12) The vendor may extend the confirmed occupancy date,

(a) by a maximum of 120 days if the vendor gives written notice to the purchaser at least 65 days before the confirmed occupancy date; or

(b) by a maximum of 15 days if the vendor gives written notice to the purchaser at least 35 days before the confirmed occupancy date or an extension of it under clause (a). O. Reg. 165/08, s. 3 (12).

(13) A breach of the warranty described in subsection (4) is a breach of warranty for the purposes of subsection 14 (3) of the Act. O. Reg. 165/08, s. 3 (13).

(14) No claim for compensation under subsection (4) may be made unless,

(a) it is made within one year after the date of possession;

(b) the condominium home is occupied; and

(c) the purchaser is not in default of the purchaser’s obligations under the purchase agreement. O. Reg. 165/08, s. 3 (14).

(15) If a claim for compensation under subsection (4) is made, compensation shall be calculated from the later of the confirmed occupancy date and the confirmed occupancy date as extended under clause (12) (a) or (b). O. Reg. 165/08, s. 3 (15).

Notice

4. (1) Subject to subsections (2) and (3), for the purposes of sections 2 and 3, written notice may either be given personally or sent by prepaid ordinary mail to the purchaser at the address in the purchase agreement or at the last known address. O. Reg. 165/08, s. 4 (1).

(2) Written notice shall not sent by mail if there is a postal stoppage or interruption at the time the notice is sent, but rather shall be given personally. O. Reg. 165/08, s. 4 (2).

(3) If written notice is sent by mail within five days before a postal stoppage or interruption commences or during such a stoppage or interruption, the sending of the notice shall not be effective. O. Reg. 165/08, s. 4 (3).

(4) Subject to subsection (3), the purchaser is deemed to have received written notice sent by mail on the fifth business day after the date of its mailing. O. Reg. 165/08, s. 4 (4).

Purchase Agreements Entered into on or after July 1, 2008

Note: On July 1, 2012, the heading immediately before subsection 5 (1) of the Regulation is revoked and the following substituted:

Purchase Agreements Entered into Between July 1, 2008 and October 1, 2012

See: O. Reg. 160/12, ss. 3 (1), 6.

Delayed closing

5. (1) If parties enter into a purchase agreement for a freehold home or a vacant land condominium home on or after July 1, 2008, the following are conditions of registration under the Plan:

Note: On July 1, 2012,  subsection (1) is amended by adding “and before October 1, 2012” after “July 1, 2008”. See: O. Reg. 160/12, ss. 3 (2), 6.

1. The vendor shall ensure that the parties complete the applicable one of the following documents, for which the form is available for inspection at the offices of the Corporation during normal business hours, and that the completed document forms part of the purchase agreement:

i. The Freehold Home Addendum (Tentative Closing Date) dated April 20, 2008 or April 22, 2009.

ii. The Freehold Home Addendum (Firm Closing Date) dated April 20, 2008 or April 22, 2009.

2. Upon request, the vendor shall furnish to the Registrar proof that the applicable document described in paragraph 1, as completed by the parties, forms part of the purchase agreement. O. Reg. 165/08, s. 5 (1); O. Reg. 249/09, s. 1.

(2) If parties enter into a purchase agreement for a freehold home or a vacant land condominium home on or after July 1, 2008, the vendor warrants to the purchaser that the vendor will comply with the requirements applicable to the home that are imposed by section 9 of the Freehold Home Addendum (Tentative Closing Date) or the Freehold Home Addendum (Firm Closing Date), as the case may be, that paragraph 1 of subsection (1) requires form part of the purchase agreement, even if the vendor has not complied with that paragraph. O. Reg. 165/08, s. 5 (2).

Note: On July 1, 2012, subsection (2) is revoked and the following substituted:

(2) If parties enter into a purchase agreement for a freehold home or a vacant land condominium home on or after July 1, 2008 and before October 1, 2012, the vendor warrants to the purchaser that the vendor will comply with the requirements applicable to the home that are imposed by section 9 of the applicable Addendum that paragraph 1 of subsection (1) requires form part of the purchase agreement, even if the vendor has not complied with that paragraph. O. Reg. 160/12, s. 3 (3).

See: O. Reg. 160/12, ss. 3 (3), 6.

Delayed occupancy

6. (1) Subject to subsections 3 (2) and (3), if, on or after July 1, 2008, parties enter into a purchase agreement for a condominium home, other than a vacant land condominium home, the following are conditions of registration under the Plan:

Note: On July 1, 2012, subsection (1) is amended by adding “and before October 1, 2012” after “July 1, 2008”. See: O. Reg. 160/12, ss. 4 (1), 6.

1. The vendor shall ensure that the parties complete the applicable one of the following documents, for which the form is available for inspection at the offices of the Corporation during normal business hours, and that the completed document forms part of the purchase agreement:

i. The Condominium Home Addendum (Tentative Occupancy Date) dated April 20, 2008 or April 22, 2009.

ii. The Condominium Home Addendum (Firm Occupancy Date) dated April 20, 2008 or April 22, 2009.

2. Upon request, the vendor shall furnish to the Registrar proof that the applicable document described in paragraph 1, as completed by the parties, forms part of the purchase agreement. O. Reg. 165/08, s. 6 (1); O. Reg. 249/09, s. 2.

(2) Subject to subsections 3 (2) and (3), if, on or after July 1, 2008, parties enter into a purchase agreement for a condominium home, other than a vacant land condominium home, the vendor warrants to the purchaser that the vendor will comply with the requirements applicable to the home that are imposed by section 9 of the Condominium Home Addendum (Tentative Closing Date) or the Condominium Home Addendum (Firm Closing Date), as the case may be, that paragraph 1 of subsection (1) requires form part of the purchase agreement, even if the vendor has not complied with that paragraph. O. Reg. 165/08, s. 6 (2).

Note: On July 1, 2012,  subsection (2) is amended by adding “and before October 1, 2012” after “July 1, 2008”. See: O. Reg. 160/12, ss. 4 (2), 6.

Note: On July 1, 2012, the Regulation is amended by adding the following sections:

Purchase Agreements Entered into On or After October 1, 2012

Delayed closing

7. (1) If parties enter into a purchase agreement for a freehold home or a vacant land condominium home on or after October 1, 2012, the following are conditions of registration under the Plan:

1. The vendor shall ensure that the parties complete the applicable one of the following documents, for which the form is available for inspection at the offices of the Corporation during normal business hours, and that the completed document forms part of the purchase agreement:

i. The Freehold Home Addendum (Tentative Closing Date) dated October 1, 2012.

ii. The Freehold Home Addendum (Firm Closing Date) dated October 1, 2012.

2. Upon request, the vendor shall furnish to the Registrar proof that the applicable document described in paragraph 1, as completed by the parties, forms part of the purchase agreement. O. Reg. 160/12, s. 5.

(2) If parties enter into a purchase agreement for a freehold home or a vacant land condominium home on or after October 1, 2012, the vendor warrants to the purchaser that the vendor will comply with the requirements applicable to the home that are imposed by section 7 of the applicable Addendum that paragraph 1 of subsection (1) requires form part of the purchase agreement, even if the vendor has not complied with that paragraph. O. Reg. 160/12, s. 5.

Delayed occupancy

8. (1) Subject to subsections (3) to (6), if, on or after October 1, 2012, parties enter into a purchase agreement for a condominium home in a condominium project for which the description has been registered or is proposed to be registered under the Condominium Act, 1998 or a purchase agreement for a freehold home on a parcel of tied land for a common elements condominium corporation, the following are conditions of registration under the Plan:

1. The vendor shall ensure that the parties complete the applicable one of the following documents, for which the form is available for inspection at the offices of the Corporation during normal business hours, and that the completed document forms part of the purchase agreement:

i. The Condominium Home Addendum (Tentative Occupancy Date) dated October 1, 2012 if the agreement is not for a freehold home on a parcel of tied land for a common elements condominium corporation.

ii. The Condominium Home Addendum (Firm Occupancy Date) dated October 1, 2012 if the agreement is not for a freehold home on a parcel of tied land for a common elements condominium corporation.

iii. The Limited Use Freehold Addendum (Tentative Occupancy Date) dated October 1, 2012 if the agreement is for a freehold home on a parcel of tied land for a common elements condominium corporation.

iv. The Limited Use Freehold Addendum (Firm Occupancy Date) dated October 1, 2012 if the agreement is for a freehold home on a parcel of tied land for a common elements condominium corporation.

2. Upon request, the vendor shall furnish to the Registrar proof that the applicable document described in paragraph 1, as completed by the parties, forms part of the purchase agreement. O. Reg. 160/12, s. 5.

(2) If, on or after October 1, 2012, parties enter into a purchase agreement for a condominium home in a condominium project for which the description has been registered or is proposed to be registered under the Condominium Act, 1998 or a purchase agreement for a freehold home on a parcel of tied land for a common elements condominium corporation, the vendor warrants to the purchaser that the vendor will comply with the requirements applicable to the home that are imposed by section 7 of the applicable Addendum, that paragraph 1 of subsection (1) requires form part of the purchase agreement, even if the vendor has not complied with that paragraph. O. Reg. 160/12, s. 5.

(3) If, before October 1, 2012, parties have entered into one or more arm’s length purchase agreements in good faith for condominium homes in a condominium project, other than one involving a phased condominium corporation or vacant land condominium corporation, then section 6 applies to all purchase agreements for all condominium homes in the condominium project and this section does not apply to those purchase agreements. O. Reg. 160/12, s. 5.

(4) If, before October 1, 2012, parties have entered into one or more arm’s length purchase agreements in good faith for a freehold home on a parcel of tied land for a common elements condominium corporation, then section 5 applies to all purchase agreements for all parcels of tied land for the condominium corporation and this section does not apply to those purchase agreements. O. Reg. 160/12, s. 5.

(5) If, before October 1, 2012, parties have entered into one or more arm’s length purchase agreements in good faith for condominium homes in a phase as defined in subsection 145 (3) of the Condominium Act, 1998, other than in a vacant land condominium corporation, then section 6 applies to all purchase agreements for all condominium homes in the phase and this section does not apply to those purchase agreements. O. Reg. 160/12, s. 5.

(6) Despite subsection (3), (4) or (5), a vendor may elect to use the otherwise applicable form specified in subsection (1) for any purchase agreement signed on or after July 1, 2012. O. Reg. 160/12, s. 5.

See: O. Reg. 160/12, ss. 5, 6.