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Go Defination II

Mortgages Act, 1990, c. M.40

Definitions - I

1.In this Act,

“conveyance” includes assignment, appointment, lease, settlement and other assurance and covenant to surrender made by deed on a sale, mortgage, demise or settlement of any property or on any other dealing with or for any property; and “convey” has a corresponding meaning; (“cession”, “céder”)

“encumbrance” includes a mortgage in fee or for a less estate, a trust for securing money, a lien, and a charge of a portion, annuity or other capital or annual sum; and “encumbrancer” has a corresponding meaning, and includes every person entitled to the benefit of an encumbrance, or to require payment or discharge thereof; (“sûreté”, “bénéficiaire de la sûreté”)

“land” includes tenements and hereditaments, corporeal or incorporeal, houses and other buildings, and also an undivided share in land; (“bien-fonds”)

“mortgage” includes any charge on any property for securing money or money’s worth; “mortgage money” means money or money’s worth secured by a mortgage; “mortgagor” includes any person deriving title under the original mortgagor or entitled to redeem a mortgage, according to the person’s estate, interest or right in the mortgaged property; and “mortgagee” includes any person deriving title under the original mortgagee. (“hypothèque”, “hypothécaire”, “montant de l’hypothèque”, “débiteur hypothécaire”, “créancier hypothécaire”) R.S.O. 1990, c. M.40, s. 1.

PART I
RIGHTS AND OBLIGATIONS OF MORTGAGORS AND MORTGAGEES

Obligation on mortgagee to transfer instead of reconveying

2. (1)Despite any stipulation to the contrary, where a mortgagor is entitled to redeem the mortgagor may require the mortgagee, instead of giving a certificate of payment or reconveying and on the terms on which the mortgagee would be bound to reconvey, to assign the mortgage debt and convey the mortgaged property to any third person as the mortgagor directs, and the mortgagee is bound to assign and convey accordingly.

Idem

(2)The right of the mortgagor to require an assignment belongs to and is capable of being enforced by each encumbrancer or by the mortgagor, despite any intermediate encumbrance; but a requisition of an encumbrancer prevails over that of the mortgagor, and as between encumbrancers a requisition of a prior encumbrancer prevails over that of a subsequent encumbrancer.

Exception

(3)This section does not apply if the mortgagee is or has been in possession. R.S.O. 1990, c. M.40, s. 2.

Right of mortgagor to inspect title deeds

3.Despite any stipulation to the contrary, a mortgagor, as long as the mortgagor’s right to redeem subsists, is entitled, at reasonable times, on request, and at the mortgagor’s own cost and on payment of the mortgagee’s costs and expenses in that behalf, to inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged property in the custody or power of the mortgagee. R.S.O. 1990, c. M.40, s. 3.

Right of mortgagor to copy of mortgage

4. (1)Despite any stipulation to the contrary, within thirty days after receipt by the mortgagee of a mortgage executed by the mortgagor, the mortgagee or the mortgagee’s solicitor or representative shall deliver or mail or cause to be delivered or mailed a true copy of the mortgage to the mortgagor or the mortgagor’s solicitor or representative. R.S.O. 1990, c. M.40, s. 4 (1).

Offence

(2)If the mortgagee or the mortgagee’s solicitor or representative fails to deliver or mail or cause to be delivered or mailed a true copy of the mortgage to the mortgagor or the mortgagor’s solicitor or representative within thirty days after receipt by the mortgagee of the mortgage executed by the mortgagor as required by subsection (1), the mortgagor may, within ten days after the period of thirty days has elapsed, demand from the mortgagee a true copy of the mortgage, and, if the mortgagee fails to comply with the demand within ten days after receipt of the demand, the mortgagee is guilty of an offence and on conviction is liable to a fine of not more than $200. R.S.O. 1990, c. M.40, s. 4 (2).

Facsimile

(3)  For the purposes of this section, a true copy shall include a facsimile as defined in section 1 of the Land Titles Act. 2000, c. 26, Sched. B, s. 14 (1).

Action for possession of land by mortgagor

5.A mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land, as to which no notice of intention to take possession or to enter into receipt of the rents and profits thereof has been given by the mortgagee, may sue for such possession, or sue or distrain for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in the mortgagor’s own name only, unless the cause of action arises upon a lease or other contract made by the mortgagor jointly with any other person, and in that case the mortgagor may sue or distrain jointly with such other person. R.S.O. 1990, c. M.40, s. 5.

Application of insurance money

6. (1)All money payable to a mortgagor on an insurance of the mortgaged property, including effects, whether affixed to the freehold or not, being or forming part thereof, shall, if the mortgagee so requires, be applied by the mortgagor in making good the loss or damage in respect of which the money is received.

Idem

(2)Without prejudice to any obligation to the contrary imposed by law or by special contract, a mortgagee may require that all money received on an insurance of the mortgaged property be applied in or towards the discharge of the money due under the mortgagee’s mortgage. R.S.O. 1990, c. M.40, s. 6.

Covenants to be implied:

7.There shall, in the several cases mentioned in this section, be deemed to be included, and there shall in those several cases be implied, covenants to the effect stated in this section, by the person or by each person who conveys, as far as regards the subject-matter or share thereof expressed to be conveyed by that person or each person with the person, if one, to whom the conveyance is made, or with the persons jointly, if more than one, to whom the conveyance is made as joint tenants, or with each of the persons, if more than one, to whom the conveyance is made as tenants in common, that is to say,

on mortgage by beneficial owner

(a) in a conveyance by way of mortgage, the following covenants by the person who conveys, and is expressed to convey as beneficial owner, namely,

(i) for payment of the mortgage money and interest, and observance in other respects of the proviso in the mortgage,

(ii) for good title,

(iii) for right to convey,

(iv) that, on default, the mortgagee shall have quiet possession of the land, free from all encumbrances,

(v) that the mortgagor will execute such further assurances of the said lands as may be requisite, and

(vi) that the mortgagor has done no act to encumber the land mortgaged,

according to the forms of covenants for such purposes set forth in Schedule B to the Short Forms of Mortgages Act, being chapter 474 of the Revised Statutes of Ontario, 1980, subject to the provisions of that Act;

on mortgage of leaseholds, by beneficial owner

(b) in a conveyance by way of mortgage of leasehold property, the following further covenants by the person who conveys and is expressed to convey, as beneficial owner, namely,

(i) that the lease or grant creating the term or estate for which the land is held is, at the time of conveyance, a good, valid and effectual lease or grant of the land conveyed, and is in full force, unforfeited, and unsurrendered, and in no wise become void or voidable, and that all the rents reserved by, and all the covenants, conditions and agreements contained in the lease or grant and on the part of the lessee or grantee and the persons deriving title under the lessee or grantee to be paid, observed and performed, have been paid, observed and performed up to the time of conveyance, and

(ii) that the person so conveying, or the persons deriving title under that person, will at all times, as long as any money remains on the security of the conveyance, pay, observe and perform, or cause to be paid, observed and performed, all the rents reserved by, and all the covenants, conditions and agreements contained in the lease or grant, and on the part of the lessee or grantee and the persons deriving title under the lessee or grantee to be paid, observed and performed, and will keep the person to whom the conveyance is made and those deriving title under that person indemnified against all actions, proceedings, costs, charges, damages, claims and demands, if any, to be incurred or sustained by that person or those persons by reason of the non-payment of such rent, or the non-observance or non-performance of such covenants, conditions and agreements, or any of them. R.S.O. 1990, c. M.40, s. 7.

Implied covenants in mortgages are joint and several

8.In a mortgage, where more persons than one are expressed to convey as mortgagors, or to join as covenantors, the implied covenants on their part shall be deemed to be joint and several covenants by them, and where there are more mortgagees than one the implied covenant with them shall be deemed to be a covenant with them jointly unless the amount is expressed to be secured to them in shares or distinct sums, in which latter case the implied covenant with them shall be deemed to be a covenant with each severally in respect of the share or distinct sum secured to each mortgagee. R.S.O. 1990, c. M.40, s. 8.

Exception

9.Sections 7 and 8 do not apply to a mortgage of land in a part of Ontario designated under Part I of the Land Registration Reform Act, that is executed on or after the day on which the land is designated under clause 14 (a) of that Act. R.S.O. 1990, c. M.40, s. 9.

Release of equity of redemption without merger of debt

10. (1)A mortgagee of freehold or leasehold property may take and receive from the mortgagor a release of the equity of redemption in the property, or may purchase the same under any judgment or decree or execution without thereby merging the mortgage debt as against any subsequent mortgagee or person having a charge on the same property.

Position of subsequent mortgagee

(2)Where a prior mortgagee so acquires the equity of redemption of the mortgagor no subsequent mortgagee is entitled to foreclose or sell the property without redeeming or selling, subject to the rights of such prior mortgagee, in the same manner as if such prior mortgagee had not acquired the equity of redemption.

Priority under registry

(3)This section does not affect any priority or claim any mortgagee may have under the registry laws. R.S.O. 1990, c. M.40, s. 10.

Powers of executors of mortgagee

11.Where a person entitled to any freehold land by way of mortgage has died, and his or her executor or administrator has become entitled to the money secured by the mortgage, or has assented to a bequest thereof, or has assigned the mortgage debt, such executor or administrator, if the mortgage money was paid to the testator or intestate in his or her lifetime, or on payment of the principal money and interest due on the mortgage, or on receipt of the consideration money for the assignment, may convey, assign, release or discharge the mortgage debt and the mortgagee’s estate in the land, and such executor or administrator has the same power as to any part of the land on payment of some part of the mortgage debt, or on any arrangement for exonerating the whole or any part of the mortgaged land, without payment of money, and such conveyance, assignment, release or discharge is as effectual as if the same had been made by the persons having the mortgagee’s estate. R.S.O. 1990, c. M.40, s. 11.

Payment: miscellaneous provisions

12. (1)In this section,

“court” means the Superior Court of Justice. R.S.O. 1990, c. M.40, s. 12 (1); 2000, c. 26, Sched. B, s. 14 (2).

Effect of receipts of surviving mortgagee, etc.

(2)The payment in good faith of any money to and the receipt thereof by the survivor or survivors of two or more mortgagees, or the executors or administrators of such survivor, or their or his or her assigns, effectually discharges the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary is expressly declared by the instrument creating the security. R.S.O. 1990, c. M.40, s. 12 (2).

Where mortgagee cannot be found

(3)When a mortgagor or any person entitled to pay off a mortgage desires to do so and the mortgagee, or one of several mortgagees, cannot be found or when a sole mortgagee or the last surviving mortgagee is dead and no probate of his or her will has been granted or letters of administration issued, or where from any other cause a proper discharge cannot be obtained, or cannot be obtained without undue delay, the court may permit payment into court of the amount due upon the mortgage and may make an order discharging the mortgage. R.S.O. 1990, c. M.40, s. 12 (3).

Payment out of money paid into court

(4)The money paid into court shall be paid out of court with any accrued interest to the mortgagee or mortgagees or to the executor or administrator of the mortgagee or as the court by order for payment into court or any subsequent order may direct. R.S.O. 1990, c. M.40, s. 12 (4).

Notice to mortgagee

(5)The court may require notice to be given by advertisement or as may be considered proper to the mortgagee or those claiming under the mortgagee either before or after making the order. R.S.O. 1990, c. M.40, s. 12 (5).

When amount offered questioned

(6)When the amount admitted to be due upon the mortgage appears to be open to question the court may as a condition of making the order require payment into court of a sum in excess of the amount admitted to be due and in such case the additional sum is subject to the further order of the court. R.S.O. 1990, c. M.40, s. 12 (6).

Provision for subsequent interest and costs

(7)The court may require payment into court of an additional sum to answer any claim by the mortgagee for subsequent interest and costs. R.S.O. 1990, c. M.40, s. 12 (7).

Death of mortgagee, order for discharge

(8)When a mortgagee has died and all money due upon the mortgage was paid to him or her in the mortgagee’s lifetime or has been paid to a person entitled to receive the same after the mortgagee’s death or where in any other case it appears that all money due upon the mortgage has been paid and for any reason a discharge or reconveyance cannot be obtained without undue delay and expense the court may make an order discharging the mortgage. R.S.O. 1990, c. M.40, s. 12 (8).

Registration of order discharging

(9)Upon the registration of an order discharging a mortgage it has the same effect as the registration of a certificate of discharge signed by the mortgagee would have under the Registry Act. R.S.O. 1990, c. M.40, s. 12 (9).

Appeal

(10)An appeal lies to the Divisional Court from any order made under this section. R.S.O. 1990, c. M.40, s. 12 (10).

Defence of purchase for value without notice

13.The purchaser in good faith of a mortgage may, to the extent of the mortgage, and except as against the mortgagor, set up the defence of purchase for value without notice in the same manner as a purchaser of the mortgaged property might do. R.S.O. 1990, c. M.40, s. 13.

Exemption from liability to distress

14.Despite any stipulation in the mortgage to the contrary, the right of a mortgagee to distrain for interest in arrear upon a mortgage is limited to the goods and chattels of the mortgagor, and to such of them as are not exempt from seizure under execution. R.S.O. 1990, c. M.40, s. 14.

Limitation upon right to distrain

15. (1)As against creditors of a mortgagor, or person in possession of mortgaged premises under a mortgagor, the right, if any, to distrain upon the mortgaged premises for arrears of interest or for rent, in the nature of or in lieu of interest under the provisions of any mortgage is restricted to one year’s arrears of such interest or rent.

When restriction to apply

(2)This restriction does not apply unless some one of such creditors is an execution creditor, or unless there is an assignee for the general benefit of such creditors appointed before lawful sale of the goods and chattels distrained, nor unless the officer executing such writ of execution or such assignee, by notice in writing to be given to the person distraining or the attorney, bailiff, or agent of the person before such lawful sale, claims the benefit of this restriction.

Duty of distrainor when restriction applies

(3)When such notice is given, the distrainor shall relinquish to the officer or assignee the goods and chattels so distrained, upon receiving one year’s arrears of such interest or rent and the reasonable costs of distress, or if such arrears and costs are not paid or tendered the distrainor shall sell only so much of the goods and chattels distrained as is necessary to satisfy one year’s arrears of such interest or rent and the reasonable costs of distress and sale, and shall thereupon relinquish any residue of them, and pay any residue of money, proceeds thereof so distrained, to such officer or assignee.

Reimbursement of officer or assignee

(4)An officer executing an execution, or an assignee who pays any money to relieve goods and chattels from distress under this section, is entitled to reimburse himself, herself or itself therefor out of the proceeds of the sale thereof. R.S.O. 1990, c. M.40, s. 15.

Notice of sale

16.Goods and chattels distrained by a mortgagee shall not be sold except after such public notice as is required to be given by a landlord who sells goods and chattels distrained for rent. R.S.O. 1990, c. M.40, s. 16.

Payment of principal upon default

17. (1)Despite any agreement to the contrary, where default has been made in the payment of any principal money secured by a mortgage of freehold or leasehold property, the mortgagor or person entitled to make such payment may at any time, upon payment of three months interest on the principal money so in arrear, pay the same, or the mortgagor or person entitled to make such payment may give the mortgagee at least three months notice, in writing, of the intention to make such payment at a time named in the notice, and in the event of making such payment on the day so named is entitled to make the same without any further payment of interest except to the date of payment.

Exception

(2)If the mortgagor or person entitled to make such payment fails to make the same at the time mentioned in the notice, the mortgagor or person is thereafter entitled to make such payment only on paying the principal money so in arrear and interest thereon to the date of payment together with three months interest in advance.

Saving

(3)Nothing in this section affects or limits the right of the mortgagee to recover by action or otherwise the principal money so in arrear after default has been made. R.S.O. 1990, c. M.40, s. 17.

Right to redeem after 5 years

18. (1)Where any principal money or interest secured by a mortgage of freehold or leasehold property is not, under the terms of the mortgage, payable until a time more than five years after the date of the mortgage, then, if at any time after the expiration of such five years any person liable to pay or entitled to redeem tenders or pays to the person entitled to receive the money the amount due for principal money and interest to the time of such tender or payment, together with three months further interest in lieu of notice, no further interest is chargeable, payable or recoverable at any time thereafter on the principal money or interest due under the mortgage.

Exceptions

(2)This section does not apply to any mortgage given by a joint stock company or other corporation nor to any debenture issued by any such company or corporation for the payment of which security has been given on freehold or leasehold property. R.S.O. 1990, c. M.40, s. 18.

Paying off mortgage when provision made for a lower rate for punctual payment

19. (1)Where provision is made in a mortgage that if interest is paid promptly it will be accepted at a lower rate than that provided in the mortgage, and interest at the lower rate has been paid according to such condition up to the time when all the principal money has become payable, any person liable to pay or entitled to redeem is entitled to pay the principal money and interest on the same at the lower rate at any time after the time for payment of the principal money on giving three months notice of the intention to make such payment or on paying three months interest at such lower rate in lieu of notice.

Mortgagor failing to pay according to notice

(2)If the mortgagor or person entitled to make such payment fails to make the same at the time mentioned in the notice, the mortgagor or person entitled to make such payment is thereafter entitled to make such payment only on paying the principal and interest at the lower rate to the date of payment, together with three months interest in advance. R.S.O. 1990, c. M.40, s. 19.

Mortgagee’s right of action

20. (1)In this section,

“original mortgagor” means any person who by virtue of privity of contract with the mortgagee is personally liable to the mortgagee to pay the whole or any part of the money secured by the mortgage.

Right of mortgagee to recover personal judgment

(2)Despite any stipulation to the contrary in a mortgage, where a mortgagor has conveyed and transferred the equity of redemption to a grantee under such circumstances that the grantee is by express covenant or otherwise obligated to indemnify the mortgagor with respect to the mortgage, the mortgagee has the right to recover from the grantee the amount of the mortgage debt in respect of which the grantee is obligated to indemnify the mortgagor; provided that the right of the mortgagee to recover the amount of the mortgage debt under this section from the grantee of the equity of redemption shall as against such grantee terminate on the registration of a grant or transfer of the equity of redemption by such grantee to another person unless prior to such registration an action has been commenced to enforce the right of the mortgagee.

Limit of right of action

(3)Where a mortgagee has the right to recover the whole or any part of money secured by a mortgage from an original mortgagor and also has a right by virtue of this section to recover from a grantee of the equity of redemption from a mortgagor, if the mortgagee recovers judgment for the amount of the mortgage debt against the original mortgagor, the mortgagee thereupon forever ceases to have a right to recover under this section from a grantee, and if the mortgagee recovers judgment under this section against a grantee the mortgagee thereupon forever ceases to have a right to recover from the original mortgagor; provided that where there is more than one original mortgagor this section does not affect the right of a mortgagee after the recovery of judgment against one original mortgagor to recover judgment against the other original mortgagor or mortgagors. R.S.O. 1990, c. M.40, s. 20.

Building mortgages

21. (1)In this section,

“building mortgage” means any mortgage made for the purpose of financing the construction of a building.

When no action may be brought

(2)Where, in any building mortgage made on or after the 1st day of July, 1942, it is expressly stated that it is a building mortgage made pursuant to this section, no action may be brought by the mortgagee after the expiration of one year from the date of the maturity of the mortgage whereby to recover payment from the person who executed the mortgage of the whole or any part of the money therein secured, if such person has made a sale in good faith of the property and has conveyed and transferred the equity of redemption to a grantee under such circumstances that the grantee is by express covenant or otherwise obligated to indemnify such person with respect to the mortgage. R.S.O. 1990, c. M.40, s. 21.

Relief before action

22. (1)Despite any agreement to the contrary, where default has occurred in making any payment of principal or interest due under a mortgage or in the observance of any covenant in a mortgage and under the terms of the mortgage, by reason of such default, the whole principal and interest secured thereby has become due and payable,

(a) at any time before sale under the mortgage; or

(b) before the commencement of an action for the enforcement of the rights of the mortgagee or of any person claiming through or under the mortgagee,

the mortgagor may perform such covenant or pay the amount due under the mortgage, exclusive of the money not payable by reason merely of lapse of time, and pay any expenses necessarily incurred by the mortgagee, and thereupon the mortgagor is relieved from the consequences of such default.

Statement of arrears, expenses, etc.

(2)The mortgagor may, by a notice in writing, require the mortgagee to furnish the mortgagor with a statement in writing,

(a) of the amount of the principal or interest with respect to which the mortgagor is in default; or

(b) of the nature of the default or the non-observance of the covenant,

and of the amount of any expenses necessarily incurred by the mortgagee.

Idem

(3)The mortgagee shall answer a notice given under subsection (2) within fifteen days after receiving it, and, if without reasonable excuse the mortgagee fails so to do or if the answer is incomplete or incorrect, any rights that the mortgagee may have to enforce the mortgage shall be suspended until the mortgagee has complied with subsection (2). R.S.O. 1990, c. M.40, s. 22.

Relief after action commenced

23. (1)Despite any agreement to the contrary, where default has occurred in making any payment of principal or interest due under a mortgage or in the observance of any covenant in a mortgage and under the terms of the mortgage, by reason of such default, the whole principal and interest secured thereby has become due and payable, in an action for enforcement of the rights of the mortgagee or of any person claiming through or under the mortgagee, the mortgagor, upon payment into court of the sum of $100 to the credit of the action as security for costs, may apply to the court and, conditional upon performance of such covenant or upon payment of the money due under the mortgage, exclusive of the money not payable by reason merely of lapse of time, and upon payment of the costs of the action, the court,

(a) shall dismiss the action if judgment has not been recovered; or

(b) may stay proceedings in the action, if judgment has been recovered and if no sale or recovery of possession of the land or final foreclosure of the equity of redemption has taken place.

Idem

(2)Despite clause (1) (b), where judgment has been recovered and recovery of possession of the land has taken place, the court may stay proceedings in the action upon the application of a person added as a party in the master’s office, made under subsection (1) within ten days after service of notice of the judgment has been made upon the person.

Subsequent default

(3)Where proceedings have been stayed under clause (1) (b) or under subsection (2) and default again occurs under the mortgage, the court upon application may remove the stay. R.S.O. 1990, c. M.40, s. 23.

Go Defination II

Nawel K. Seth, M.A.Sc; MBA; M.V.A.
Broker of Record
Trail Blazers Realty
, Brokerage,
Toronto Tel: 416.630.1999 / 905.660.7999. Toll Free 1.866.890.1999

 

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