Nava Wilson’s COVID-19 Protocols

Anticipating the Future - Clauses You May Need for Real Estate Transactions in 2020 

Webinar : Moving Forward Amidst The Covid-19 Pandemic: A Law Firm’s Perspective

 

Nava Wilson’s COVID-19 Protocols

Nava Wilson LLP has taken measures to ensure that we continue to serve our clients in need of legal services while at the same time doing our part to protect our people, their families, and the community from the risk of the spread of the virus. 

More importantly, we are putting protocols in place at our office to achieve this goal while minimizing the possibility of exposure to COV-19 spread during our client’s interaction at our office.

With that in mind, we have implemented the following measures:

  • All of our staff are being asked to minimize close contact with anyone;
  • We are replacing live meetings with audio and video meetings and obtaining e-signatures for all instances that we can; 
  • If clients we need meet clients face to face, we have put measures in place where clients can enter our office, are serviced by a lawyer, sign  all documents, and leave the office with minimal to no close contact with any person;
  • We are providing the option of working from home to the staff that do not need to meet clients;
  • We have cancelled attending all public events for the near future;
  • We have reviewed a protocol with all our employees on what to do if they show any symptoms of the virus;
  • We have had discussions with our staff to give special attention to those that are most vulnerable, such as the elderly.

 

Anticipating the Future: Clauses You May Need for Real Estate Transactions in 2020 

As COVID-19 continues to impact our daily lives, we need to also be mindful that business operations are also going to be impacted moving forward. 

1. Extension for Land Registry and/or Bank Shutdowns

The Land Registry Offices and Banks in Ontario have been considered essential services by the Government of Ontario in this shutdown.  However, given the enormity of the uncertainty of this pandemic, the future of any further shutdown is uncertain at this moment. As such, real estate professionals are being advised to include the extension clause below:

Clause: 

The parties herein acknowledge and agree that they are required to close the  transaction contemplated in this Agreement on the Closing Date, notwithstanding any impacts of COVID-19, save and except the closing of the Land Registry Office(s) and all financial institutions. In the event that the closing cannot be completed due to a shutdown/disruption of the Land Registry System and/or banking system, then the Closing Date shall be automatically extended to the fifth (5th) business day following the date upon which said system(s) have returned to operational status and can clear funds accordingly.


2. Extension for Banking Delays

Even though banks are still operational, they all have reduced hours. Bank protocols in reaction to COVID-19, particularly with regard to how mortgages are being processed, are evolving on a daily basis. Given these uncertainties, it will likely be difficult for transactions to close on time, especially if mortgage instructions are received by the lawyer’s office the day of, or the day before closing.

After a lawyer receives mortgage instructions from the bank, they will have to prepare the closing documents, prepare the statement of adjustments, get the client into the office to sign documents, request for the funds, and move the funds into the Seller lawyer’s trust account.  This was already a difficult task, typically a race against the clock, and I anticipate it will be even more difficult for the next few weeks/months.

With the additional hurdles and delays, if the funds do not reach the Seller lawyer’s trust account by end of day, the Seller’s lawyer can claim that the transaction was breached. As such, by inserting the clause below, a one business day extension at the request of the buyer would help in mitigating against these breaches. 

Clause: 

The parties herein acknowledge and agree that due to the uncertainty of business operations caused by the COVID-19 pandemic, the closing of the transaction contemplated in this Agreement may experience unavoidable delays. As such, the parties herein agree to extend the closing date by ONE (1) Business Day upon the Buyer’s notice to the Seller. 


3. Accepting E-Signatures

E-Signatures should be used whenever possible to keep in line with social distancing rules.  However, please be mindful that the law on e-signatures is not settled; banks are still requiring original signatures on certain documents. However, at a minimum, both the Buyer and the Seller can  agree to accept e-signatures for closing documents that are not required by the bank. If banks ever start to relax their requirements for original signatures, e-signatures could become used more often in real estate transactions.

Please be aware that banks are not legally bound to accept e-signatures.

We recommend inserting the clause below:

Clause: 

The parties herein acknowledge and agree that each party’s closing documents for the transaction can be signed, using an electronic agent, and transmitted by email or fax in accordance with the Electronic Commerce Act, 2000, S.O. 2000, c. 17.


Part 1: Four Phases of the Coronavirus Pandemic for Businesses by Kubes Navaratnam

Part 2: Government Policy and Approach with Malliha Wilson

Part 3: Closing Real Estate Property with Sutharsan Vasanthan

Part 4: Support for Businesses with Vinthan Asokanathan

Part 5: Landlord and Tenant Matters with Gathya Manoharan