Published 11 September 2026 · By Jatin Dua, Broker of Record, RE/MAX Quantum Realty
A zoning condition in an Ontario real estate agreement comes in two structures and agents mix them up constantly. Most of the clauses in this group are conditions precedent: the deal is null and void unless somebody gives written notice by the stated time that the condition has been met. ZONING-3 is built the other way round — the agreement stays alive unless the buyer gives notice terminating it. In the first structure silence kills the deal; in the second, silence closes it. Before you draft, decide which way round you want it, then check whether the clause you chose gives your client an express right to waive. One of them does not.
The condition that ends a deal by doing nothing
A buyer’s minor variance application is filed, the committee date lands three days after the condition expires, and the agent does nothing because there is nothing yet to report. The condition period runs out. The agreement is over, and the buyer who was perfectly happy to buy the property either way has lost it.
That is the default in this category and it is worth stating plainly: with a condition precedent, no notice means no deal. The agent did not have to do anything wrong. They just had to do nothing.
Everything in this post comes back to that. Which structure did you choose, who has to act, by when, and what happens if the approval authority is slower than your calendar.
Six clauses, two structures
Pull the exact wording from your own OREA member copy. This is what each one is for.
| Clause | What it does | Structure |
|---|---|---|
| ZONING-1 (Condition – Re-zoning/Minor Variance) | Makes the offer conditional on the named party obtaining a re-zoning or a minor variance, at their expense, for a use or variance you have to specify. Both parties agree to proceed diligently | Condition precedent. Null and void unless notice of fulfilment is given by the stated time |
| ZONING-2 (Condition – Re-zoning with Seller’s Consent) | The buyer-side re-zoning condition, plus the seller’s obligation on written notice to execute applications and documents, change the official plan if necessary, support the application, amend bylaws and co-operate reasonably, with the buyer paying | Condition precedent, and expressed to be for the buyer’s benefit and waivable at the buyer’s sole option |
| ZONING-3 (Condition – Zoning Satisfaction) | Gives the buyer until a stated time to confirm the zoning permits a stated purpose and that the zoning is final and binding, with a written-notice termination right if the buyer is not satisfied in their sole and absolute discretion | Condition subsequent. The agreement continues unless the buyer serves notice terminating it |
| ZONING-4 (Location of Buildings/Driveways) | Seller warranty that the buildings are wholly on the property and comply with zoning and building bylaws, and that the driveways are within the property limits with entrances approved by the road authority | Knowledge-qualified warranty, surviving closing, speaking to the state of the property at completion |
| ZONING-5 (Restriction – Short Term Accommodation) | Buyer acknowledgement that the municipality may have a bylaw restricting or limiting the right to rent the property out, and that the buyer buys subject to that restriction | Acknowledgement. Allocates the risk to the buyer |
| ZONING-6 (Zoning – Warranty) | Seller warranty stating the zoning of the lands by reference to the zone, the bylaw and the municipality | Factual warranty. Only as good as what somebody typed into the blanks |
ZONING-1 and the waiver that is not there
Compare ZONING-1 and ZONING-2 side by side and one difference jumps out. ZONING-2 carries the familiar language making the condition one for the buyer’s benefit, waivable at the buyer’s sole option. ZONING-1 does not.
Think about what that means on a file. Your buyer offers on a property intending to obtain a minor variance for a detached garage. The variance is refused. Your buyer, who liked the house anyway and has a financing commitment in hand, would happily close without the garage. Under a condition drafted without a waiver right, they may not be able to. The condition was not met, and the agreement is expressed to become null and void.
So the question to ask your buyer before drafting is the only one that matters here: if the approval is refused, do you still want this property? If the answer is yes, or even maybe, the clause has to give them room to proceed anyway, and how to achieve that is a drafting question for their lawyer rather than something to improvise in a schedule at nine at night.
One more thing about ZONING-1. It is written to run for either party, at either party’s expense, which means the person filling it in is making four separate choices — who obtains it, who pays, whether it is a re-zoning or a variance, and exactly what use or variance is being sought. That last blank is where vagueness kills. Specify exact variance or use means exactly that, and a clause that says suitable for the buyer’s intended use is an argument waiting to be had.
The short version
A condition that produces a null and void agreement on refusal is a walk-away, not an option. If your buyer might still want the property without the approval, say so before you draft, and get the waiver mechanics right with their lawyer.
ZONING-3 is built the other way round
ZONING-3 is structurally different from everything else in the group and this is the most useful thing in the post. It gives the buyer a period in which to satisfy themselves about zoning, and a right to terminate if they are not satisfied in their sole and absolute discretion. If they do nothing, the agreement carries on.
That reversal changes your file management completely. Under a condition precedent you diary the deadline because your client loses the deal by silence. Under ZONING-3 you diary it because your client is bound by silence. I have seen agents apply condition-precedent habits to a condition-subsequent clause and tell a buyer the deal will simply lapse if the zoning does not work out. It will not. It will close.
Do not oversell the discretion either. In Marshall v. Bernard Place Corp. (Ontario Court of Appeal, 2002), as reported, a discretionary inspection condition was held to have both objective and subjective elements, with a buyer entitled to rely on genuine deficiencies discovered through the process. Sole and absolute discretion has not been read as a free option to walk. Whether a particular termination stands up is a question for the client’s lawyer, decided after the fact.
There is a further wrinkle worth knowing about. Where a condition depends on the act of a third party — a municipality granting an approval, for instance — it may fall into the category the courts call a true condition precedent, the leading authority on which is Turney v. Zhilka (Supreme Court of Canada, 1959). Whether such a condition can be waived unilaterally is a legal question with real consequences, and it is one of the reasons I want a lawyer looking at any zoning condition where the client’s plan depends on the approval rather than on the property.
Final and binding form, and the appeal window nobody diaries
ZONING-3 goes further than asking what the zoning permits. The buyer also has to be satisfied the zoning is final and binding in form — and those four words are not decoration. A decision by a committee or a council is not the end of the process, because an appeal period runs afterwards, and until it has expired without an appeal the approval is not settled.
Agents set these dates by counting days on a calendar. That is not how approvals work. An application has to be prepared and filed, it goes onto a hearing agenda that may be weeks out, a decision follows, and then the appeal window runs. Ask a planner who works in that municipality what the realistic sequence is before you write a number into a schedule, and build in slack, because none of it is within your client’s control.
ZONING-4: a warranty that is really a survey question
ZONING-4 is two warranties in one, and both are qualified by the seller’s knowledge and belief. The first is that the buildings sit wholly on the property and comply with zoning and building bylaws. The second is that the driveways are within the property limits and that the entrances have been approved by the appropriate road authority.
Look at what is being promised there. Whether a garage encroaches over a lot line is not a matter of belief. It is a matter of measurement, and it is answered by a current survey, not by a seller who has lived there twenty years and assumes the fence is the line. The mechanics of getting that answered are in the survey clauses post.
The compliance half has its own trap. A building can lawfully exist and still not conform to current zoning, because it predates the bylaw. Sellers describe that as being fine, and in a sense it is, but it is not the same as complying, and the difference matters if your buyer intends to expand, rebuild or convert. The knowledge qualifier does not resolve any of this, and Coppendale v. Mills, 2025 ONSC 5192 is the reminder: as reported, a warranty given to the best of the seller’s knowledge spoke to knowledge at signing rather than at closing.
On rural and regional roads, the entrance approval limb is not academic. An unapproved entrance is the road authority’s business after closing, and it becomes the buyer’s problem the day they own the property.
ZONING-5 and the short-term rental plan
ZONING-5 records that the municipality may have a bylaw restricting or limiting the owner’s right to rent the property out, and that the buyer agrees to buy subject to that restriction. Read it for what it is. It is a seller-protective acknowledgement. It gives your buyer no information at all.
Now consider who is usually buying: someone whose numbers only work with nightly rental income. For that buyer, an acknowledgement is precisely the wrong instrument. They do not need to accept a risk, they need to find out the answer and keep the ability to leave if the answer is no. That is a condition, structured with their lawyer, plus verification of the current municipal position on licensing and restrictions for that specific property.
Municipal rules in this area change, and they change faster than most of our marketing does. Confirm the position now, for this address, and do it in writing. And do not let a buyer proceed on the strength of what the seller is currently doing with the property, because what someone is doing and what they are permitted to do are different questions.
The short version
An acknowledgement allocates a risk to your client. A condition buys them the right to find out and to leave. If the whole business case depends on the answer, never settle for the acknowledgement.
ZONING-6, your exposure, and how I want this handled
ZONING-6 is a seller warranty that names the zoning, the bylaw and the municipality. It is short, it looks harmless, and it is a factual assertion that somebody has to be right about. Copying a zone code off a listing or an old marketing brochure is not verification. Get it from the municipality, and if you cannot, do not fill in the blank and pretend.
Which brings me to the real exposure in this category. It is not the clause. It is agents giving zoning opinions. You can put a second unit in. It is zoned for a triplex. That basement is legal. Those are planning conclusions and we are not planners. If the statement appears in your marketing, RECO’s advertising guidance is that a misleading statement is one that causes someone to have a wrong idea or impression, and it does not matter that not everyone would be misled.
If the client’s plan turns on permission to build, read this alongside the building permit condition post, and if there is seller financing on land that is going to be rezoned, the lender’s co-operation has to be dealt with too, as set out in the mortgagee consent post.
- Ask what the client intends to do with the property, and whether they would still buy it if they could not.
- Choose your structure on purpose: a condition precedent that dies on silence, or a condition subsequent that closes on silence.
- Check whether the clause you picked carries an express waiver right, and if your client may need one, take it to their lawyer.
- Specify the exact variance or use. Vague purposes produce vague conditions and unwinnable arguments.
- Get the approval timeline from a planner who works in that municipality, and remember that an appeal window runs after a decision.
- Verify zoning facts with the municipality before anyone warrants them, and never quote a zone code from a listing.
- Keep your own opinions about what can be built out of every email, text and listing you write.
Questions agents actually ask
What is the difference between a condition precedent and a condition subsequent in a zoning clause?
Under a condition precedent the agreement is null and void unless notice of fulfilment is given by the stated time, so silence ends the deal. Under a condition subsequent, such as the zoning satisfaction clause, the agreement continues unless the buyer serves notice terminating it, so silence closes the deal. Applying the habits of one structure to the other is how agents lose deals and bind clients by accident.
Can my buyer waive a re-zoning condition and buy anyway?
It depends on the clause and on the law. The re-zoning clause with the seller’s consent is expressed to be for the buyer’s benefit and waivable at their sole option. The general re-zoning and minor variance clause is not drafted that way. There is also a legal question about whether a condition that depends on a third party’s decision can be waived unilaterally. Send that one to the client’s lawyer.
How long should a re-zoning or minor variance condition run?
Longer than a calendar suggests. The application has to be prepared and filed, it goes onto a hearing agenda that may be weeks away, a decision follows, and an appeal period runs after that before the approval is settled. Ask a planner who works in that municipality for the realistic sequence, then add slack, because none of the timing is within your client’s control.
Does ZONING-4 replace a survey?
No. It is a warranty qualified by the seller’s knowledge and belief that the buildings are wholly on the property and comply with zoning and building bylaws, and that driveways and entrances are in order. Whether a structure crosses a lot line is a measurement, not a belief. If the answer matters, get a current survey and treat the warranty as a supplement rather than a substitute.
My buyer wants to run a short-term rental. Is the acknowledgement clause enough?
No, it is the opposite of what they need. The short-term accommodation clause records that a restricting bylaw may exist and that the buyer purchases subject to it, which protects the seller and informs nobody. If the business case depends on nightly rental, verify the municipality’s current position for that specific address in writing and structure a condition with the client’s lawyer.
Can I tell a buyer a property is zoned for a duplex?
Not on your own authority, and not in your marketing. Zoning permissions are planning conclusions and we are not planners. RECO’s advertising guidance treats a misleading statement as one that causes someone to have a wrong idea or impression, and it does not matter that not everyone would be misled. Point the buyer to the municipality and to their own professional advisers.
The clause checklist I make my own agents use
A one-page pre-submission check for conditions and schedules — the dates, the notice route, and the eight things that get missed. Built for Ontario agents. Free, and there is no drip campaign behind it.
Separately — if you have ever wondered what your last twelve months would have paid on a different split, run it through Quantum Leap. Six questions, no signup wall.
Writing zoning conditions off a calendar?
Approval timelines, waiver rights and the difference between a condition that dies on silence and one that closes on silence are not things to work out for the first time in a counter-offer. Every agreement at my brokerage gets reviewed before it goes out. If that is not happening where you are, come have a conversation.
Book a 15-minute call or call or text 833-330-1925.
If the honest answer is that your current brokerage is fine, I will tell you that.
Related reading
- Changing the Completion Date in Ontario: The Clause, the Consent and the Deadline Risk
- Documentation Review Conditions: The Catch-All Clause and Its Limits
- Home Inspection Conditions in Ontario: Sole Discretion, Remedies and the Wording That Holds Up
- The Parking Clause: One Line That Prevents a Closing-Day Argument
- State of Emergency Clauses: What the Pandemic Taught Ontario Agents About Drafting for Disruption
- Every clause and condition guide in one place
- OREA, Guidelines for Residential and Commercial Clauses, revised 19 May 2026 (OREA member resource)
- Turney v. Zhilka (Supreme Court of Canada, 1959)
- Marshall v. Bernard Place Corp. (Ontario Court of Appeal, 2002)
- High Tower Homes Corp. v. Stevens, 2014 ONCA 911
- 3 Gill Homes Inc. v. 5009796 Ontario Inc. (Kassar Homes), 2024 ONCA 6
- Coppendale v. Mills, 2025 ONSC 5192
- RECO Information Bulletin 5.1, Advertising, 17 January 2024
Jatin Dua is Broker of Record and co-founder of RE/MAX Quantum Realty, Brokerage, Unit 101, 799 The Queensway, Etobicoke. Four-plus years in the GTA and more than $100M in sales volume. He reviews the agreements his agents write.
This is professional commentary from a Broker of Record on drafting practice around zoning conditions and warranties in Ontario agreements of purchase and sale. It is not legal or planning advice. Waiver of a condition, the effect of a termination and what a municipality will permit are questions for the client’s lawyer, a qualified planner and the municipality itself. This is general professional commentary from a Broker of Record on drafting practice. It is not legal advice, it is not a substitute for your own brokerage’s policies, and it does not create any professional relationship. Clause codes refer to OREA’s Guidelines for Residential and Commercial Clauses, an OREA member resource — the clause wording itself is OREA’s and is not reproduced here. Always work from your brokerage’s approved forms, and send your client to a lawyer for anything turning on interpretation, enforceability or remedy. Legislation, regulator guidance and case law all change; verify anything you are relying on.