Working Day calculations Around the Christmas period under New 10th Edition
Despite common misconceptions to the contrary, the definition of working days has not changed in the new 10th Edition of the Standard Agreement for Sale and Purchase of Real Estate (ASPRE) released in late October 2019.
However, the definition does need careful consideration around the Christmas period. It can catch one out. The period of non- working days is not the same for all conditions. The relevant clause in the 10th edition of the ASPRE is subclause 1.1(38).
Working Day calculations – The clause reads : –
“Working days “ means any day of the week other than;
- Saturday, Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, The Sovereign’s Birthday, and Labour Day;
- If Waitangi Day or Anzac day falls on a Saturday or Sunday, the following Monday;
- A day in the period commencing on 24th December in any year and ending on 5th January ( or in the case of subclause 9.3(2) the 15th January) in the following year, both days inclusive; and
- The day observed as the anniversary of any province in which the property is situated. “
In effect, working days under the ASPRE for the Christmas period ends on 23rd December in each year regardless. Then, the next working day for most clauses restarts on 6th January in each year or the next Monday should 6th January be a Saturday or a Sunday by chance. So that the working day count under the standard building report condition in subclause 9.4 and the toxicology subclause in clause 9.5 restarts on 6th January.
By contrast, if a settlement day was set down for the period up to 5th January (by mistake on say 3rd January) then in terms of clause 1.2 (1) it would have been backdated to 23rd of December. It is important to take into consideration the “time for performance “rules in subclause 1.2.
But that is not the case for the LIM subclause 9.3(2). The working day period for the LIM clause restarts on 16th January. That last point can catch one out if not known or understood. Real estate agents need to be aware of that provision when calculating working days for back to back agreements for their vendors who are also buying. In fact, it can be a bit of tricky to match the dates up if the parties are working on concurrent agreements and fixing settlement dates if that special working day provision for the LIM clause is overlooked.
I was recently asked whether that LIM working day provision applied to an agreement signed over the New Year period? The agreement had been signed shortly after the New Year and before the 15th January and it was subject to a LIM condition. The answer was yes, and in that case, the LIM clause start date did not occur until 16th January.
Finally, the definition of a working day in subclause 1.1 (38) and the time for performance clause 1.2 of the ASPRE need to be read in conjunction with each other. For those drafting agreements and setting condition dates and settlement dates, both clauses 1.1(38) and 1.2 are extremely important clauses.
TAJ
8 January 2020
