This report considers mortgages of land in Alberta, and the remedies that the law makes available to both the lender and the borrower in the event of default under such a mortgage. It reviews the existing Alberta law and practices. This report recommends that Alberta retain judicial supervision of the foreclosure actions as it is needed to ensure price adequacy in foreclosure sales in times of fluctuating land prices and ensures fair treatment to parties involved. The report also recomends that deficiency judgment protection should exist for all individuals who own residential or farm land charged by a mortgage where that individual or family member has in good faith used that land as a residence or for farming operations. Any waiver of proposed protection should be void. The scope of the covenant to pay implied by section 62 of the Land Titles Act should be broadened. Any attornment clause given by a protected individual in a mortgage charging residential land or farmland should be void. The existing law on the enforcement of the due-on-sale clauses in Alberta is adequate. The report discusses the advantages and disadvantages of the Rice order procedure that was extensively used in Alberta in the 1980’s and concludes that practice should not evolve to the point where the court routinely gives immediate Rice orders without thought as to whether it is appropriate to the situation. Courts should have the ability to offer land for sale at a time, place, manner, and at any price the Court considers proper. Rule 689, that the Court is restricted to sale by tender and advertising in the newspaper, should be repealed. Other minor recommendations for changes to foreclosure procedure are discussed.
Report For Discussion
Back to Publication SearchMortgage Remedies in Alberta, Report for Discussion 9
Resource Details
Publication No: | 9 |
FORMAT: | Publications |
TAGS: | borrower, mortgagor, lender, mortgagee, deficiency, transfer, mortgage, remedy |
FILE: | rfd9.pdf |