The situation
Here is a hypothetical. In 2022 you signed an agreement to buy a one-bedroom unit in a new Toronto condominium. The Statement of Critical Dates showed a First Tentative Occupancy Date in 2025 and an Outside Occupancy Date some years later. Since then, the builder has sent three notices moving the date. You extended your lease twice, the second time at a higher rent.
Now the builder has sent an “amending agreement” with a new occupancy date eight months away and a small credit on closing, in exchange for which you would “waive all delay compensation.” Can the builder keep doing this, are you owed anything, and can you walk away?
What the law says
The addendum sets the rules. Agreements to buy a new home from an Ontario builder include a standard Tarion addendum and Statement of Critical Dates, which give the purchaser a delayed closing (freehold) or delayed occupancy (condominium) warranty under the Ontario New Home Warranties Plan Act. The addendum prevails over anything inconsistent in the agreement.
Tentative dates can move, but only with proper notice. A builder can set a later tentative date by written notice given within the time the addendum requires. If it does not, the existing date can become the firm date. No date can be pushed past the outside date without the purchaser’s agreement.
A missed firm date generally triggers compensation. If the builder cannot deliver on the firm date, it must give written notice of a delayed date, and it generally owes compensation for living expenses and other costs caused by the delay, up to a limit set in the addendum. That does not apply where the delay was mutually agreed or was an unavoidable delay. Older agreements may use an earlier form of the addendum, so the one attached to yours matters.
Unavoidable delay is narrow. It covers listed events beyond the builder’s reasonable control, such as a strike, fire or flood. Ordinary business problems, such as a trade falling behind or financing trouble, generally do not qualify, and the builder must give written notice for it to count.
Interim occupancy is not closing. In a new condominium you usually move in before the building is registered, and pay a monthly occupancy fee until final closing. The warranty dates concern occupancy, so a long wait between moving in and closing is generally not covered by delay compensation.
The outside date is the exit. If the home is not ready by the outside date (other than because of the purchaser’s breach), the purchaser has a short window to terminate in writing and receive back the money paid, with interest. A purchaser who lets that window pass stays bound.
Extensions must be done properly. An amendment extending the critical dates must be voluntary and meet the addendum’s requirements, including a clear warning where compensation may be lost. One that does not can be set aside at the purchaser’s option.
Other claims may exist. The addendum preserves rights at law. A claim beyond Tarion compensation may be possible where the builder ignored the rules or did not perform the contract honestly, but many agreements limit the builder’s liability, so the wording matters.
What to do
- Build a timeline. List every Statement of Critical Dates and notice, with the date you received it. A late notice may already have fixed a firm date.
- Do not sign the amendment yet. Compare what you would give up with what is offered, and get advice first. The addendum itself recommends legal advice before signing any amendment.
- Mark the outside date. The window to terminate after it is short and does not reopen.
- Keep records of costs caused by the delay, such as moving and storage.
- Claim promptly. Claims for delay compensation go to the builder first and then, if unresolved, to Tarion, each within set time limits.
- Watch the limitation period. A court claim is generally subject to the two-year limitation period under the Limitations Act, 2002.
If you are on the other side
Builders should treat the addendum as a checklist. Give every notice of a new tentative date on time, set the final tentative or firm date when the addendum requires, and give notice of any delayed date as soon as it is known. Rely on unavoidable delay only for listed events, with prompt written notices at the start and the end, and keep records of what caused the delay and for how long. Draft extension amendments with all the required terms, and refund promptly on a termination without requiring a release. A builder that can show it followed each step is well placed if a purchaser disputes the dates.