Land Title Practice Manual

74 Registration Of Bankruptcy Order Or Assignment

In This Volume

  • 74 (1) Every bankruptcy order, or a true copy certified by the registrar or other officer of the court that made it, and every assignment, or a true copy certified by the official receiver, may be registered by or on behalf of the trustee in respect of the whole or any part of any real property in which the bankrupt has any interest or estate, or in respect of the whole or any part of any immovable in which the bankrupt has any right, in the registry office in which, according to the law of the province in which the real property or immovable is situated, deeds or transfers of title and other documents relating to real property, an immovable or any interest or estate in real property or any right in an immovable may be registered.

Effect of registration

  • (2) If a bankrupt is the registered owner of any real property or immovable or the registered holder of any charge, the trustee, on registration of the documents referred to in subsection (1), is entitled to be registered as owner of the real property or immovable or holder of the charge free of all encumbrances or charges mentioned in subsection 70(1).

Caveat may be filed

  • (3) If a bankrupt owns any real property or immovable or holds any charge registered in a land registry office or has or is believed to have any interest, estate or right in any of them, and for any reason a copy of the bankruptcy order or assignment has not been registered as provided in subsection (1), a caveat or caution may be filed with the official in charge of the land registry by the trustee, and any registration made after the filing of the caveat or caution in respect of the real property, immovable or charge is subject to the caveat or caution unless it has been removed or cancelled under the provisions of the Act under which the real property, immovable, charge, interest, estate or right is registered.

Duty of official

  • (4) Every official to whom a trustee tenders or causes to be tendered for registration any bankruptcy order, assignment or other document shall register it according to the ordinary procedure for registering within the official’s office documents relating to real property or immovables.

2004-25-47; 2005-47-64(E).

PRACTICE

Registration of Trustee

Application

A trustee may apply to obtain registration in the trustee’s name as trustee of the land or interest in land of the bankrupt.

Submissions

On the Form 17 Fee Simple, select Nature of Interest, Bankruptcy, and attach an image of the original or court certified copy of the bankruptcy order or assignment.

Note that a court registrar’s certificate of the appointment of a trustee in bankruptcy is not acceptable.

Registration of Trustee’s Title

The registrar registers the trustee’s title as follows:

A.B. (ADDRESS), TRUSTEE OF THE ESTATE OF C.D., A BANKRUPT, SEE (doc#).

Judgments in Name of Federal Crown

Pursuant to the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) and the Excise Tax Act, R.S.C. 1985, c. E-15, judgments in favour of the Canada Revenue Agency are secured claims in bankruptcy proceedings. These judgments may not be cancelled from title upon registration of an assignment under s. 74(2) of the Bankruptcy and Insolvency Act. The registrar examines the documents to determine whether a judgment registered in the name of the Crown in Right of Canada is a judgment in favour of the Canada Revenue Agency. If an applicant for assignment into bankruptcy applies to merge or cancel a judgment in favour of the Canada Revenue Agency, the registrar issues a defect notice citing s. 223(11.1) of the Income Tax Act or s. 316(10.1) of the Excise Tax Act as authority.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Application for All Lands and Charges Comprised in Instrument

Section 156 of the Land Title Act does not apply to a transmission in bankruptcy.

Expiration of Caveat

A caveat registered under s. 74(3) of the Act lapses two months after lodging. See s. 293 of the Land Title Act.

SECONDARY SOURCES

See Di Castri, Registration of Title to Land, vol. 2, §14:17, §16:40 to §16:42, and §16:46.

CASE LAW

Effect of Assignment on Joint Tenancy

An authorized assignment severs a joint tenancy and an undivided half-interest vests in the trustee (Re White, 1928 CanLII 509 (ON SC)).