209 Transfer Of Mortgage

FORMS

Transfer of Mortgage

The director has approved the use of Form C Charge for a transfer of mortgage. The Form 27 Transfer of Charge was cancelled on January 1, 2017.

Submissions

On the Form C Charge, select Nature of Interest, Transfer of Charge, and complete the attached Terms of Instrument—Part 2.

When Nature of Interest, Transfer of Charge, is selected, item 4(b) Express Charge Terms on the Form C Charge is ticked automatically and Term of Instrument—Part 2 is appended to the form. The appended Terms of Instrument—Part 2 must be used.

The Terms of Instrument—Part 2 that are appended automatically contain two consideration fields applicable to the words of transfer. The Consideration Value field defaults to $1.00 and the Description of Consideration field defaults to and other valuable consideration. These two fields may be edited where applicable.

The words of transfer are not editable because words of transfer are required to ensure the application is registrable. Additional terms may be added in the Additional Terms field.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Registration of Transfer

See s. 206 of the Act regarding the registration of transfers of charges.

Implied Covenant in Mortgages

See ss. 20 to 24 of the Property Law Act regarding the liabilities of parties where an estate in fee simple subject to a mortgage is transferred.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 2, para. 534.

CASE LAW

The respondent brought an application in a foreclosure proceeding for a declaration that a transfer of an interest in a mortgage was null and void. The respondent had executed the mortgage in favour of her former husband and their four children as joint tenants. The husband persuaded three of his four children to transfer their interests in the mortgage to him, leaving him with a 4/5 interest in the mortgage and his fourth child with a 1/5 interest, both as tenants in common. From about the time of the husband’s death, the respondent made no further payments on the mortgage, preferring to make the payments to her solicitor in trust for her four children. The respondent argued that a partial transfer of mortgages or interests in mortgages is not specifically provided for in the Land Title Act and that all of the children should have rights of survivorship because of the joint tenancy under the original mortgage. The court found that the documented intentions of four out of five joint tenants were a clear and unilateral action that indicated an intention to sever the joint tenancy. When the three children transferred their interest, they each transferred their whole interest, absolutely, in writing to their father. Accordingly, the court found that the transfer of mortgage was valid and that the respondent still owed the principal amount and interest on the loan secured by the mortgage in the same amount as if her former husband and the three children have never undertaken the transfer. Consequently, the husband’s 4/5 interest would now devolve to his estate rather than passing outside of his estate directly to the children (Burrows Estate v. Burrows, 2003 BCSC 612).