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What Do You Mean a “COPY” of an Agreement?

Real estate agents often refer to “copies” of an agreement, but just what are they talking about?

It would be wise to first reach a common understanding about how the documents are described.

Genuine Original: this is a document which has been signed and sealed by the parties and bears the original signatures of each party to the agreement.

There is no better evidence of the deal between the parties than this document. There may be more than one genuine original.

Duplicate Original: This is the second copy made. It’s the first carbon copy out of a typewriter. In cases where photocopies or laser prints are made, it cannot be distinguished from the first copy. In the event that the first original is misplaced or lost, this document can be used in its place. It is not used for Offers but it is used for Deeds.

Original copies: this is a document which is the second or later document to be signed. The deal between the parties may have been struck once that first genuine original was signed, but this is the companion copy. The intention is that both parties (or all parties) are to have their own originals. So, in effect, everything is in escrow (it can all be undone) pending the production of the additional original copies, however many, may be needed. Once completed, so that there are sufficient copies for all concerned, the deal is done. These original copies are then just as important as the first copy made.  So, provided there is fact such an escrow arrangement, they are all originals. Proving such an arrangement exists becomes somewhat problematic if there are no verbal discussions about the offer and acceptance process at the time.

Executed copies: These copies are one step down from original copies. There is no escrow arrangement here. The deal has been struck with the first genuine original, but it is thought that everyone should have their own copy. So, these additional executed copies are made. They bear original signatures and initials and would be difficult to detect any difference from “original copies” from their appearance.

Signed copies: This is just another name for an executed copy.

True copies: This document is slightly different. The keyword here is “COPY”. It’s not an original. For example, Bob Smith signs his name and places his initials upon the original document. Now, someone else makes a true copy of the original. In places where Bob Smith signs, they place the words “Bob Smith”, and where he has placed his initials they place the letters “BS”. You will notice the Quote Marks. That’s the correct way to make a true copy. It will be evident that Bob Smith personally didn’t actually sign that document. But, it does show that someone made a true copy of a document that Bob Smith did in fact sign. This is not quite as good as the original for the purposes of the best evidence rule.

Photocopies: These are documents produced on a photocopier. As long as the photocopier is working properly, then you have produced a copy which is the equivalent of a true copy. Decent enough, but, not quite as good as the original.

Certified copies: These are documents which are produced by a person authorized by law to produce certified copies. This is likely to change depending upon the purpose for which the certified copy is required. Often, it will be covered in specific legislation. Passport applications permit a broad number of professions to look at a document, make a photocopy, then attest to the fact that it is “certified” to be a true and accurate copy of the original document which they have personally examined.

There is no specific person authorized to make copies of agreements of purchase and sale under REBBA, 2002.

The Evidence Act says “a copy of an instrument or memorial, certified to be a true copy by the land registrar in whose office the instrument or memorial is deposited, filed, kept or registered, is proof of the original….” That means, the only way to prove a registered document on title, is to have the Land Registrar make a “true copy”. That is accomplished by attaching an attestation page to a photocopy of the document.

Notarial copies: These are official photocopies made by a Notary Public. The original document is examined, a photocopy is made and the attestation page is affixed. If the best document is a photocopy, then the notarial certificate will say “this is a true copy of a document purporting to be a photocopy of….”. The Notary will then sign and seal the document.

But, please notice what the exact wording is in the certification. Is it a photocopy of an original, or is it a photocopy of a photocopy? The copy of a copy may not have much value.

Also, Notaries are strictly regulated. They will not have someone bring in a 200 page original document and 200 pages of photocopies. They will make the copies in their own offices in order to ensure that there is no tampering.

Counterpart copies: These copies are slightly different. The contracting parties are not together in the same room at the same time, or even closeby. They may be at the opposite ends of the earth. Both parties sign the contract in the own offices, then they mail them to the other party. The intention is that the operative date for the contract is day one, the signing date, not two weeks later when your copy finally arrives in the mail. Upon receipt, all you have to do is “sign”, because the other party’s signature already appears upon the document. This is a slightly different arrangement, and does not usually apply to real estate deals. The practice for “acceptance” of an offer is slightly altered in these situations from standard practice.   

As you can see, there are many different, but quite similar meanings with respect to the term “copy”. Hopefully, we will all be able to speak the same language!

Brian Madigan LL.B., Broker