Land Title Practice Manual

243 Redemption Of Mortgage If Mortgagee Absent

In This Volume

  • 243 (1) If a mortgagor or owner of the equity of redemption becomes entitled to pay off or has paid off a mortgage in accordance with its terms, and
  • (a) the registered mortgagee is absent from British Columbia or cannot be found, and
  • (b) there is no person in British Columbia authorized, by power of attorney filed in the land title office where the mortgage is registered, to receive payment of the mortgage money and execute a discharge of the mortgage,
  • the Supreme Court may,
  • (c) on application made without notice to any person, and
  • (d) on proof of the facts and of the amount, if any, due for principal, interest and all other sums rightly payable to the mortgagee under the mortgage,
  • order
  • (e) within a time limited in the order, the payment of that amount, less the taxed costs of the application, into court to the credit of the mortgagee or other person entitled to it, or
  • (f) that, if the mortgage has been paid off in accordance with its terms, the mortgage be discharged.
  • (2) On payment into court of the amount so ordered within the time limited, all interest accruing under the mortgage ceases.
  • (3) On application to the registrar for cancellation, and on deposit of a certified copy of the order with proof of
  • (a) payment, if any, into court in compliance with the order, and
  • (b) mailing a copy of the order to the mortgagee at the mortgagee’s last known address,
  • the registrar must make an entry in the register cancelling the registration of the mortgage, and the entry is deemed to be a valid discharge of the mortgage and has the same effect as a similar entry made on an application for cancellation accompanied by the production of a discharge of mortgage executed by the mortgagee.
  • (4) Money paid into court under this section must, with the accrued interest, be paid out to the person entitled to it on application accompanied by proof of the surrender to the registrar of the certificate of charge or duplicate indefeasible title, if any, held by that person relating to the land covered by the mortgage.

1979-219-222; 1982-60-61, proclaimed effective August 1, 1983.

FORMS

Forms of Application for Cancellation of a Mortgage

Submissions

On the Form 17 Cancellation of Charge, Notation or Filing, select Nature of Interest, Charge (by Court Order) (No PTT), and attach an image of the court certified copy of the order, certificate of payment to the court (if applicable), and proof of service of the order to the mortgagee at the mortgagee’s last known address.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See Di Castri, Registration of Title to Land, vol. 2, §13:166.

CASE LAW

Entitlement to Cancellation

Section 243 allows for a without notice application where the registered mortgagee cannot be found and the mortgagor has paid off the mortgage. The court was satisfied that there was nothing owing to the respondent. In any event, any claims the respondent might have were statute barred. The court directed the registrar of land titles to cancel registration of the mortgage (Wosk v. Gould, 2017 BCSC 2217).