Agreement Amending Charge Ontario
In the past, there has been some confusion about the execution of agreements to modify or renew mortgages or registered fees. The CareVest case is a reminder of the importance of carefully checking the terms of a previously registered mortgage in order to decide whether a subsequent mortgage should be granted in Alberta. In particular, special attention should be paid to the drafting of a mortgage to ensure that all changes are provided for as a matter of priority. Alberta`s first savvy lenders sought, without exception, the agreement and deferral of subsequent lenders in the event of an interest rate increase; However, this decision will bring comfort to those who may not have obtained this deferral, provided that the mortgage is properly formulated to allow for modifications. CareVest argued that, having neither authorized nor deferred its interest on the November 2012 amendment, its interests should prevail over the November 2012 amendment and that it was therefore entitled to the funds that exceeded 8% interest on the Bowstein mortgage. CareVest, which relied primarily on the case law of Ontario and British Columbia, argued that if the interest rate on a mortgage did not take precedence over other lower fees as part of that increase, unless: (1) the lower fees are deferred after the date of the increase; or (2) the lower rank fee agrees with the increase. That argument was based on the argument that a subsequent lender should have the right to rely on the precise terms of the registered priority interest. Cadastre officers are informed that when such an agreement is submitted for registration, either by notification in the land ownership system, it must be executed by both the Mortgagor (Chargor) and the Mortgagee (Lote). The Court upheld McDonald`s against Royal Trust Corp of Canada and found that CareVest was aware of the terms of the Bowstein mortgage and the possibility of increasing the interest rate.
The Tribunal ultimately found that CareVest`s objection to the interest rate hike was irrelevant and had no legal effect – the Bowstein mortgage and all its amendments prevail over CareVest. To what extent can a subsequent lender rely on the explicit terms of previous registered interest? The recent decision of the Alberta Court of Queen`s Bench, CareVest Capital Inc. v. 1336868 Alberta Ltd, 2015 ABQB 94, addressed precisely this issue. Bulletin No. 78004 Date: January 27, 1978 Year: All Bowstein Cadastre Officers denounce the relevance of the authorities cited by CareVest, in particular because: (1) the BC Land Titles Act explicitly states that a modification of a prior registered interest does not affect lower priority registrations; and (2) Ontario`s cadastre system is very different from the Alberta Torrens system. . .