Skip to main content

In This Volume

  • 27 (1) The registration of a charge gives notice, from the date and time the application for the registration was received by the registrar, to every person dealing with the title to the land affected, of
  • (a) the estate or interest in respect of which the charge has been registered, and
  • (b) the contents of the instrument creating the charge so far as it relates to that estate or interest,
  • but not otherwise.
  • (2) A payment made by a mortgagor under a registered mortgage, or by a purchaser under a registered agreement for sale or subagreement for sale, is not a dealing with the title to the land affected.
  • (3) A transferee of a mortgage, or of a vendor’s interest in an agreement for sale, takes subject to the equities and to the subsisting state of accounts between, respectively, mortgagor and mortgagee, or vendor and purchaser.

1979-219-27.

PRACTICE

Date and Time of Receipt of Application Noted

On receipt of an application for registration of a charge, the registrar must write or stamp on the application the date and time of its receipt, and that time is deemed to be the time at which the application was made and received by the registrar.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Regarding the deemed receipt of an application to register, see s. 153 of the Act.

Regarding the effective date of instruments, see ss. 22 and 37 of the Act.

Charges may not appear on title in the order of priority. See s. 28 of the Act regarding the priority of charges based on priority of registration.

See Di Castri, Registration of Title to Land, vol. 3, para. 879.

CASE LAW

Notice of Mortgage

A second mortgage contained a clause giving priority to a first mortgage. The first mortgage was registered first and later assigned. The assignee of the first mortgage did not have actual knowledge that the second mortgagee had advanced money under the second mortgage before advancing under the first mortgage. The second mortgage did not have priority over the first mortgage. The notice given by s. 27 of the Act is constructive, not actual notice. Actual notice is required to prevent tacking (Capital City Holdings Ltd. v. C & A Mortgage Corporation, 1979 CanLII 490 (BC CA), applying I.W.A. Credit Union v. Johnson, 1978 CanLII 330 (BC SC)).

Notice of Assignment of Rents

Section 27 does not apply to a tenant to give the tenant notice of an assignment of rents. What is contemplated by s. 27 is that persons dealing with the title to the land affected have deemed notice. This notice does not extend to a tenant, as the tenant cannot be said to be a person dealing with the title to the land, particularly when, in many cases, the assignment of rents is registered long after the lease is entered into (Mutual Life Assurance Co. of Canada v. Boban Construction Ltd., 1984 CanLII 673 (BC SC)).