Condition removal represents a milestone in any real estate transaction. Until the condition is fulfilled or waived, the contract is binding on the parties; however, some of the obligations of the parties, such as completing the transaction, will be suspended until that condition is either fulfilled or waived.¹

This article answers questions like, “What are the best practices for REALTORS® who are completing the Notice of Condition Waiver / Declaration of Fulfillment form?” and “Is it better to ‘waive’ or ‘fulfill’ each condition?”  

An Overview of Condition Removal 

Subject conditions exist to allow one party to a real estate contract to perform their due diligence (e.g., home inspection) or to ensure another event occurs (e.g., financing approval or home sale) prior to the obligation to complete the real estate contract.  These conditions need to be carefully drafted to create clear, legally binding obligations while maintaining the contract’s enforceability. For more discussion on drafting subject conditions, see fellow Legally Speaking author Jude Chow’s article, “Deal or no deal: The cold hard truth about subject conditions.” 

Where a condition exists for the benefit of a party, courts will imply a term where the party responsible for fulfilling the condition promises to make a good faith effort to have it done.²  

To be effective, the waiver of a condition precedent must be clearly communicated³ to the other contracting party.⁴ However, the benefiting party must be careful with timing and dates, as failure to provide notice of condition removal will generally result in the end of the contract.⁵ For more discussion on expired contracts, see Legally Speaking: Past Due: Expired Offers, Expired Contracts, and What to Do With Them #580. 

In prior BCREA guidance, the difference between waiver and fulfillment was commonly viewed as a factual statement where fulfilling a condition occurred when the subject party carried out the due diligence (e.g., the buyer had the home inspection), and waiving a condition occurred when the subject party chose not to carry out the due diligence (e.g., the buyer chose not to have a home inspection but proceeded anyway).  

As we will explore below, the better practice is that the language chosen should not be purely reflective of the choices made by the buyer and their REALTOR®. Rather, the choice between “waived” or “fulfilled” should be reflective of the representations being made to the other party to the contract. 

When Can a Subject Condition Be Waived? 

When a subject condition is waived, it means the benefiting party chooses not to enforce the contract requirement, even if the event did not occur as written. 

A condition precedent may be waived under the Law and Equity Act,⁶ if a) the condition benefits that party alone; b) the contract can be performed without the fulfillment of that condition;⁷ and c) the waiver is made before the time stipulated in the contract.  

Critically, the waiver of a condition does not mean that it was not fulfilled by the benefiting party. It simply means that contractually, the benefiting party will not be relying on that condition to terminate the contract.  

When Can a Subject Condition Be Fulfilled? 

When a condition is fulfilled, it means the benefiting party is declaring that the requirement or event described in the subject clause has been satisfied.  

It is a common misconception among REALTORS® that the fulfillment or waiver of subject conditions “removes” the subject condition language from the contract itself; it does not. Condition removal is simply the marking of conditions as being either waived or fulfilled, and the language of the original contract, the amendments, and the subject removal form constitute the entire contract.  

Therefore, when a party declares that subject conditions are fulfilled, they are creating an additional representation in the contract to the other party (e.g., that financing has in fact been approved).   

For example, a buyer may obtain financing approval and still elect to waive the financing subject. In doing so, the buyer is choosing not to rely on the condition, is proceeding with the closing, and is not making a separate contractual representation that financing has been obtained. By contrast, declaring the condition fulfilled signals to the other party that the requirement described in the subject has been satisfied and may be relied upon as such within the contract. 

In the event a firm deal collapses, these “fulfilled” subject conditions create a representation that then may give rise to additional legal grounds for aggrieved parties to make claims of misrepresentation against the defaulting party. 

Another common misconception among REALTORS® is assuming that noting that subject conditions are fulfilled is evidence for their own files that the clients have completed the due diligence (e.g., that financing has in fact been obtained).  

Remember that the REALTOR® is not a party to the Contract of Purchase and Sale; this is a document between buyer and seller and should be viewed in this context. While it is good practice for REALTORS® to keep a record of due diligence for their clients (e.g., a letter from the broker confirming approval of financing), this should be done generally outside of the contract.  

When May “Fulfilled” Be an Appropriate Choice? 

Although waiver of subject conditions is commonly used in many cases (as the benefiting party may not intend to make an additional contractual representation), there are instances where the statement that a subject condition is fulfilled may be appropriate, including: 

1. mutual conditions (those conditions for the benefit of both buyer and seller), especially those that involve a third party (e.g., subdivision or approving officer conditions); or 

2. conditions that relate directly to other terms, representations or warranties in the contract (e.g., vacant possession and the termination of a tenancy). 

Final Thoughts 

To wrap up, here is some practical advice on subject condition removal:

1. Waiver of subject conditions may be used by buyers’ agents in circumstances where they do not intend to make a representation that the subject condition has been fulfilled and wish to avoid creating additional contractual representations.  

2. In some cases, fulfillment of subject conditions may be more appropriate than waiving them, particularly where the conditions are mutual (for the benefit of both buyer and seller) or where failing to fulfil one condition may affect other contractual terms or conditions. In such cases, the parties may wish to seek independent legal advice prior to waiving or fulfilling the condition. 

3. Clearly identify what subject conditions are being waived or fulfilled and ensure this is being communicated unequivocally and within the time required to the other party.  

4. Have an audit trail that clearly establishes what subject conditions are waived or fulfilled and the timing of delivery of notice.   

Ultimately, the choice between waiving or fulfilling should be made with consideration of its effect on the client's contractual position. It is worth noting that the BC Financial Service Authority's current guidance treats waiver and fulfillment as interchangeable options on the standard form; the distinctions drawn in this article arise from contract law principles rather than regulatory direction. 

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	1.	Peier v. Cressey Whistler Townhomes Limited Partnership, 2012 BCCA 28.
	2.	Bhasin v. Hrynew, 2014 SCC 71 and Zhang v. Amaral-Gurgel, 2017 BCSC 1561.
	3.	See Bell v. Bisaillon, 2025 ONSC 3965, where the Ontario court held that condition removal was effected by acknowledgement of a text threat and subsequent conduct.
	4.	Sun-Kahn Investments ltd. v. Dalton, 1982 CarswellBC 793 (S.C.).
	5.	Martin v. Ferguson, 2025 BCSC 1251.
	6.	s. 54, Law and Equity Act, R.S.B.C. 1996, c. 253.
	7.	Mill Creek Developments Ltd. v. P & D Logging Ltd., 2008 BCCA 531.

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