Pre-Con: Missed Notice of First Delay by One Business Day - Guidance
I’m in an interesting situation and looking to understand any precedent/guidance this group can share.
Last year I negotiated and signed a pre-construction detached APS with a builder in the GTA. At timing of signing ground had not yet been broken, however the builder indicated they would begin construction right away for a closing date that was ~9 months from signing.
Fast forward approximately 9 months, and no ground has been broken yet nor permit issued. Here’s where things get interesting:
- The builder missed the Notice of Delay beyond first tentative closing date. Notice date was missed by ONE DAY - builder emailed a notice of delay dated February 12th on February 12th, whereas deadline was Feb 11th.
>Statement of critical dates in the APS sets out that, “Notice of a delay beyond the First Tentative Closing Date must be given no later than: 11th day of February 2026
>(i.e., at least 90 days before the First Tentative Closing Date), or else the First Tentative Closing Date automatically becomes the Firm Closing Date. “
Is my understanding correct that my First Tentative Closing Date (May 12, 2026) now becomes my Firm Closing Date?
This means the builder now has 365 days from May 12th 2026 (New Firm Closing Date) to close, prior to the Outside Closing Date occurring:
>The Vendor can set a Delayed Closing Date that is up to 365 days after the earlier of the Second Tentative Closing Date and the Firm Closing Date: This Outside Closing Date could be as late as: [Date doesn’t matter as it’s now set out by missed First Notice of Delay, ~May 12, 2027]
The builder has not acknowledged their missed First Notice of Delay (I don’t expect them to) and neither have I. Do I have any obligation to inform this of this, either now or in the future when they send Second Notice of Delay (which will be invalid)?
We completed structural upgrades/options last year, however are still going through the process of pre-drywall/electrical/decor. The builder has been super slow and not communicated any deadlines for this to be completed until just recently. There was no rush from my perspective as the builder has still yet to move to permit. Should I be wary of builder attempting to point the finger at me as reason they can’t complete by outside closing date should that date come to pass?
Do I at any point have to inform the builder re: Firm Closing Date or Outside Closing Date? Can I ignore any invalid notices they send me and then exercise my right to terminate in the 30 days following the outside closing date? In short what I’m asking is can this be used as a quasi-put-option based on market conditions at time of outside closing date next year to terminate? If I inform the builder of their missed First Notice of Delay it might otherwise cause them to speed up the build (perhaps jeopardizing quality).
Thank you in advance for the time and guidance.