Details about the delayed occupancy warranty are provided in the Tarion Addendum, which your builder is required to attach to your purchase agreement.
The first page of the Addendum is a Statement of Critical Dates which must be signed by both you and your builder. It clearly indicates the date when your builder expects to finish your condominium unit and the latest possible date for permitted extensions.
The following key dates are provided:
- The Firm Occupancy Date – The date that you and your builder agreed your condominium unit will be ready for you to move in. If this date is not met, your builder must set a Delayed Occupancy Date and you are entitled to delayed occupancy compensation.
- The Outside Occupancy Date – This is the latest date that your builder agreed to provide you with occupancy of your condominium unit. You and your builder agree upon this date at the time of signing the purchase agreement.
The above dates must fall on a business day as defined in the Addendum.
- The Purchaser’s Termination Period – If your condominium unit is not ready for occupancy by the Outside Occupancy Date, you have a 30-day period in which to terminate the agreement.
You may wish to use this Statement of Critical Dates calculator to help you determine the various dates related to your home’s occupancy.
Occupancy dates must not be “floating dates” dependent on some other event. They must be calendar dates or you may be entitled to terminate your purchase agreement.
Early Termination - Conditions of Sale
Under the Condominium Act you are entitled to a 10 business day ‘cooling off’ period to review your purchase agreement. You may choose to terminate the agreement during this period if you wish.
The Addendum contains a section which explains any Early Termination Conditions that apply to your deal. Such conditions may be included if some external approval or event is required before the transaction can be finalized, however only the types of conditions listed in the Addendum are permitted. Conditions which are not permitted are not enforceable. You should review these conditions during the ‘cooling off’ period.
Any condition that is included must be accompanied by a date by which it will be satisfied. If the condition is not satisfied by that date, the purchase agreement may be terminated. Your builder is required to provide you with confirmation of if and when each Early Termination Condition is satisfied.
Acceptable Early Termination Conditions
Most allowable Early Termination Conditions are related to approvals to allow the condominium project to be built and occupied. Examples of such conditions include:
- Minimum sales threshold for the project
- Confirmation of project financing
- Approval of site plan or other development agreement
- Easements or similar rights serving the property or surrounding area
- Completion of hard services such as roads, water and sewer lines, and other utilities
Each condition must be set out separately, be specific as to the type of approval needed, and identify the approving authority.
Unavoidable Delays and Occupancy Dates
An unavoidable delay is an extraordinary circumstance where an Occupancy Date may need to be delayed through no fault of the builder or purchaser. This may be a strike, fire, explosion, ‘act of God’, civil insurrection, act of war or terrorism, or a pandemic. If such a delay occurs, your builder is permitted to extend all deadlines by up to the length of the unavoidable delay period without paying you delayed occupancy compensation. Your builder must inform you at the outset of the delay, provide an estimate of how long it will last and give you written notice as soon as the delay has ended.
Changing Dates by Mutual Agreement
If your builder asks you to change a date related to the closing of your new home, you should review the provisions of the Addendum. There are special rules for changing dates by mutual agreement and an amendment may result in your waiving compensation that would otherwise be available to you.
Note: As a general rule at least 90 days written notice is required to change a closing date.
At the time of closing, new home builders are required to provide either a municipal Occupancy Certificate; or a written statement from the builder confirming that all Building Code conditions of occupancy have been satisfied.
Delayed Occupancy Compensation
Delayed occupancy compensation up to a maximum of $7,500 is payable:
- If occupancy occurs on a date after the Firm Occupancy Date; or
- If you exercised your right to terminate the purchase agreement due to delay as permitted by the Addendum (e.g. as per the Purchaser’s Termination Period). In this case you are also entitled to a full refund of all monies paid (i.e., deposits, extras and upgrades) plus interest.
Delayed occupancy compensation for living expenses (meals and accommodation) is payable based on a fixed amount of $150 a day for each day of delay until the Delayed Occupancy Date or the date that the purchase agreement is terminated. Receipts for living expenses are not required.
Compensation is also payable for costs incurred by you as a result of the delay (for example, additional moving and storage costs). Receipts for these costs must be provided.
In addition, If your builder fails to give you 10 days notice of an occupancy delay, you will be compensated in the amount of $1,500 ($150 x 10 days).
Making a Delayed Occupancy Compensation Claim
If you are entitled to delayed occupancy compensation, you may make a claim to your builder within 180 days of your occupancy date or the date on which you terminate your purchase agreement. If your builder does not pay your claim, or if you and your builder are unable to agree on the amount of compensation payable, you may make a claim to Tarion during the first year of possession (or up to 365 days after you terminate your purchase agreement). To do so, please complete the Delayed Closing/Occupancy Claim Form, available through MyHome.
If you make a claim to your builder, be sure to provide all receipts and other supporting documents for direct costs incurred as a result of the delay. Keep copies of your receipts and other documents as these will be needed if you make a claim to Tarion. Note: Receipts relating to living expenses are not required.