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ARTICLE · 24 AUGUST 2023

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Secured Real Estate Financing: Mortgage Amendments And Priority Disputes

Blaney McMurtry LLP
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When a commercial loan secured by real estate is made by a lender, it is common practice for the borrower to grant the lender a mortgage that is registered on title to the property.

CanadaFinance and Banking
Kym Stasiuk
Kym Stasiuk
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When a commercial loan secured by real estate is made by a lender, it is common practice for the borrower to grant the lender a mortgage that is registered on title to the property. If key terms of that loan are subsequently amended – for example, if the interest rate is increased – then typically the lender and borrower will enter into a loan amending agreement and a mortgage amending agreement, and the latter will be registered on title.

Sometimes, for various reasons, a borrower will get a second loan from another lender, who will register a second mortgage on title. Absent a priority agreement or postponement registered on title to the contrary, this second mortgage will rank behind the first mortgage. This means the first mortgage lender is entitled to get repaid before the second mortgage lender.

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