the agreement provides a date for completion. If a date is stated
and for some reason completion does not take place exactly on that
date the seller cannot immediately terminate the agreement and Claim
a forfeit of the deposit and claim damages. This is not the case
where the agreement states that the date is “of the essence”. It
is seldom in the interests of a buyer to sign an agreement which
makes the date the date for completion “of the essence".
completion does not take place on the (non-essential ) day originally
agreed, the disadvantaged party has two choices:
there is a fixed date for completion the standard agreement fixes
the period to run in a notice to complete. Where there is no fixed
period for a notice to complete it must be for a reasonable time.
What is a reasonable time depends on the circumstances of each case.
- to adhere to
the agreement and force the seller to perform his/her obligation to
sell (and if the delay causes damage, he/she has the right to sue for
those damages); or
- to make time an
essential element by serving a notice to complete and if it is not met,
terminate the agreement, the buyer can recover his/her deposit and sue
for any damages.