An amendment changes a term of a live agreement and keeps the deal alive; a mutual release ends the agreement entirely and settles what happens to the deposit — the two documents do different jobs and neither one substitutes for the other.
An amendment needs written agreement from all original signatories — explicitly including a spouse who signed only to consent to the sale of a matrimonial home. Crucially, “an amendment is not a waiver and not a notice of fulfilment”: an agent or lawyer floating a possible new closing date changes nothing on the file until a document is actually signed and delivered. The party who needs the extra time normally pays for it — typically mortgage interest, taxes, insurance, utilities and storage costs for the extension period — and “if the amendment is silent, expect an argument once the file closes.”
A mutual release does the opposite job: it ends the agreement rather than continuing it. The deposit is returned to the buyer when a condition wasn’t met and proper written notice went out on time, when the seller defaults, or when both sides agree and sign a mutual release. Forfeiture to the seller is not automatic even on a buyer default — the brokerage will not release the deposit without the buyer’s written consent (a signed mutual release) or a court order. When the parties can’t agree, the brokerage’s own way out is an interpleader application: pay the funds into the Ontario Superior Court of Justice and let buyer and seller litigate directly rather than pick a side.
A buyer’s financing is delayed two weeks past the scheduled closing date. If both sides want the deal to proceed, the fix is an amendment: a new closing date, time-of-the-essence expressly restated, and the buyer covering the seller’s carrying costs for those two weeks — the original agreement of purchase and sale stays alive with one term changed. If the buyer instead can’t close at all, an amendment is the wrong tool: the parties need a mutual release that cancels the agreement outright and directs where the deposit goes, so the seller can put the property back on the market without an unresolved amendment sitting on the file.
See also: a certificate of pending litigation, a condition precedent and a back-up offer.
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