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22 (1) In this section, “current owner” means

  • (a) the current registered owner in fee simple of land whose title was acquired subject to a mortgage, or
  • (b) if the purchaser’s interest under an agreement for sale has been transferred, the current registered owner of that interest.
  • (2) A person who, under a mortgage or agreement for sale, is liable, or has been required to indemnify a person who is liable, is entitled to recover the amount of his or her liability from the current owner.
  • (3) A mortgagee or vendor under an agreement for sale is entitled to
  • (a) recover from the current owner any amount due and owing under the mortgage or agreement for sale, and
  • (b) enforce, against the current owner, all covenants, terms and conditions in the mortgage or agreement for sale
  • as though the current owner had entered into those covenants to make payments or to observe or perform the covenants, terms and conditions referred to in paragraph (b).
  • (4) Subsections (2) and (3) do not apply if the current owner establishes that the current owner, or a person from or through whom the current owner derived his or her right or title to the property, was not
  • (a) obligated to indemnify his or her transferor, or
  • (b) directly liable to the mortgagee or vendor
  • in respect of the liability under the mortgage or agreement for sale.
  • (5) The liability of a current owner under subsections (2) and (3) is limited to that amount that the current owner is under an obligation to pay or indemnify his or her transferor in respect of liability under the mortgage or agreement for sale.
  • (6) This section does not abrogate any rights or remedies that a mortgagee, a vendor under an agreement for sale or a person with a right of indemnity may otherwise have or pursue.

1979-340-20.1; 1988-42-7, proclaimed effective December 1, 1988 (B.C. Reg. 411/88).

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

The following material is adapted from a discussion of the 1988 amendments to the Property Law Ac by Konig in “Property Law Act, Sections 19.1 through 20.3: Liability of Original Covenantors and Other Current Owners” in Foreclosures and Fraudulent Transactions (CLEBC, 1990), at p. 2.1.03. For convenience, the section references have been updated to reflect the section numbers used in R.S.B.C. 1996.

Section 22(3) affords mortgagees a cause of action against the current owner of property where s. 21 applies. Again, this section is not restricted to residential mortgages. Prior to the enactment of this section, a mortgagee would have no cause of action for personal judgment against a purchaser of property unless he or she had signed a renewal or assumption agreement. Section 22 does not apply to assignments of rent, and, therefore, any personal covenants in an assignment of rents are not enforceable against a current owner. However, the assignment as a registered interest in land is enforceable vis-à-vis the land.

CASE LAW

Transitional Period

The purchasers purchased property from the mortgagors on June 3, 1988, but they did not sign a mortgage assumption agreement. They made mortgage payments to the petitioner until September 1988, when they moved out after discovering problems with the roof. The petitioner obtained judgment against the mortgagors and sought judgment against the purchasers under s. 22 of the Act, which came into effect December 1, 1988. It was inappropriate that a partial application of the legislative scheme in this case should result in the purchasers being retroactively liable to the mortgage company (Pacific & Western Trust Corp. v. Coldwell, [1989] B.C.J. No. 1334 (QL) (S.C.)).