207 Form Of Postponement

FORMS

Priority Agreement

The director has approved the Form C Charge for Priority Agreements. The Form 24 Postponement Agreement was cancelled on January 1, 2017.

Submissions

On the Form C Charge, select Nature of Interest, Priority Agreement.

PRACTICE

Release of Priority Agreement

If a first mortgage, second mortgage, and separate priority agreement giving the second mortgage priority over the first mortgage are registered against title, and if either mortgage is discharged, the registrar also discharges the priority agreement whether or not any party makes an application to release it.

Priority Agreement in Instrument Creating Right of Way or Covenant

Where an instrument creating a right of way or covenant contains a mortgagee’s consent to a priority over their charge in favour of the right of way or covenant, an applicant must apply specifically for registration of the priority agreement in Form C. The mortgagee granting priority must also sign the Form C.

Priority Agreement Affecting More Than One Subsequent Charge

Each subsequent charge that is affected by a priority agreement is treated as a separate charge for registration purposes. In the case of a priority agreement in which one or more prior owners grant priority to one or more subsequent owners, the registrar assigns a separate serial number to each subsequent charge affected and makes a separate entry in the register for each one.

Priority Agreements—Form C Applications

Item 3 of the Form C is intended to identify the type of charge applied for and optionally, the Additional Information field can be used to enter the applicable document reference identifying that part of the Terms of Instrument—Part 2 containing the grant of priority.

The Terms of Instrument—Part 2 is where the Priority Agreement must be described, including sufficient descriptions of the “prior charge” and “subsequent charge” in accordance with s. 207 of the Land Title Act. Since the document reference provides a direct link to the portion of the Terms of Instrument—Part 2 containing the grant of the priority agreement, the granting language, or portions thereof, need not be repeated in item 3.

Limiting the description of the Priority Agreement to the Terms of Instrument—Part 2 ensures that there will always be sufficient space to adequately describe the Priority Agreement. The lack of duplication of this wording also simplifies the application process in item 3 of the Form C. In addition, it removes the potential for defect notices associated with errors when replicating this information.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See Di Castri, Registration of Title to Land, vol. 2, para. 556, and vol. 3, paras. 835, 914, and 935.

CASE LAW

Effect of Postponement of Possibility of Reverter

See the annotation for Westsea Construction Ltd. v. British Columbia (Registrar, Land Title Office), 1995 CanLII 1087 (BC SC), under s. 231 of the Act.

Postponement Agreement

The respondent, the fourth mortgagee on the subject property, brought an application for directions concerning the priorities of various mortgagees and for payment of funds resulting from the sale of the property. An agreement had been registered that granted the charges held by the fourth mortgagee priority over those held by the second mortgagee. No mention was made in the agreement of the intervening third mortgage. The third mortgagee was not given any notice of the agreement and was not asked and never consented to the arrangement. The fourth mortgagee did not pay out the second mortgage, buy out the interests of the second mortgagee, or take an assignment from the second mortgagee. All that the second mortgagee agreed to do was to postpone her interests to those of the fourth mortgagee. The court declined to grant the fourth mortgagee’s application for a declaration that its interests were ahead of the interests of the third mortgagee. It found that the agreement was actually a postponement agreement under s. 207 of the Land Title Act. Under s. 207(1), the owner of a prior charge, in this case the second mortgagee, may postpone her rights to those of the holder of a subsequent charge, in this case the fourth mortgagee, as if the prior charge were registered immediately after the subsequent charge. However, the Act does not provide for the holder of a subsequent charge to stand in the shoes of a prior charge holder and thereby vault ahead of an intervening charge. Accordingly, the priorities set out in the Act applied, with the result that the third mortgagee was to be paid from the funds in trust in priority to the fourth mortgagee, which because of the postponement agreement would rank ahead of the second mortgagee (Bridgewater Financial Services Ltd. v. 347451 B.C. Ltd., 2003 BCSC 716).