271 Presumption As To Regularity Of Foreclosure And Cancellation Proceedings

In This Volume

271 (1) In an application founded on a final order of foreclosure, the registrar, on production of a certified copy

(a) of the order nisi, if any, and
(b) of the final order for foreclosure in which the defendants are all the parties appearing on the records of the registrar as the owners of the fee simple in or a charge on the land priority to whose estate or charge is claimed by the applicant,

is entitled to presume the regularity of all intervening proceedings, and no person foreclosed by the order and named in it as a defendant, who is deprived of land or a charge by the registration of a new indefeasible title, has an action or claim against the assurance fund based on an alleged defect in the foreclosure proceedings.
(2) The presumption of regularity created by subsection (1) applies to all applications founded on a final order for the cancellation of an agreement for the sale of land or a subagreement for the sale of land, and no person, named as a defendant in the order,

(a) whose estate or interest is cancelled by the order, and
(b) who is deprived of land or a charge by a cancellation or other registration effected by the registrar pursuant to the order,

has an action or claim against the assurance fund based on an alleged defect in the cancellation proceedings.
(3) In this section, “assurance fund” means the applicable assurance fund under Part 19.1 or Part 20.

1979-219-250; 1982-60-68, proclaimed effective August 1, 1983; 2004-66-115, effective January 20, 2005 (B.C. Reg. 16/2005).

FORMS

Submissions

For a foreclosure of a fee simple interest, use the Form 17 Fee Simple, select Nature of Interest, Foreclosure, and attach an image of the court certified copy of the final order of foreclosure and a court certified copy of the order nisi, if any.

For a foreclosure of a lease, mortgage or right to purchase, use the Form 17 Charge, Notation or Filing and select the applicable Nature of Interest:

Foreclosure of Lease
Foreclosure of Mortgage
Foreclosure of Right to Purchase

Attach an image of the court certified copy of the final order of foreclosure and a court certified copy of the order nisi, if any.

Set out any charges to be merged in Item 3, Additional Information on the Form 17 application.

PRACTICE

Form of Order in Foreclosure of Equitable Mortgage

On foreclosure of an equitable mortgage, a usual final order is not sufficient to vest title in the name of the mortgagee. The order must direct the mortgagor to convey the mortgaged land to the mortgagee, or must direct that the land be vested in the mortgagee.

Merger of Charges in Foreclosure

The applicant must set out charges to be merged on the Form 17 application when submitting an application to register a final order of foreclosure.

Assignment of Action and Security

Where the action and the security have been assigned, an applicant must submit a certified copy of the order substituting the petitioner unless the certificate of pending litigation was modified under s. 215(4).

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Foreclosure and Cancellation

See Supreme Court Civil Rule 21-7, Foreclosure and Cancellation.

Secondary Sources

As to foreclosures, see Falconbridge on Mortgages (5th ed.); Megarry and Wade, The Law of Real Property (6th ed.), pp. 1187 to 1191 and 1213; Di Castri, Registration of Title to Land, vol. 2, para. 415 and vol. 3, para. 1010; Foreclosures—2009 (CLEBC, 2009); and Foreclosure Practice 2017 (CLEBC, 2017).