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ARTICLE · 30 OCTOBER 2008

Questions To Ask Before Taking Possession In A Mortgage Enforcement Setting

Blake, Cassels & Graydon LLP
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The terms of most mortgages provide that the borrower is permitted to have possession of the mortgaged property prior to default and the lender is entitled to take possession of the mortgaged property after default.

CanadaReal Estate and Construction
Blake, Cassels & Graydon LLP
Blake, Cassels & Graydon LLP
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Copyright 2008, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Real Estate Mortgage Enforcement, October 2008

The terms of most mortgages provide that the borrower is permitted to have possession of the mortgaged property prior to default and the lender is entitled to take possession of the mortgaged property after default. When a borrower defaults on its obligations under a mortgage, it is not uncommon for the lender to take possession and assume control of the mortgaged property in order to facilitate a sale.

The lender may take possession of the mortgaged property directly, either privately or by court order. Alternatively, the lender may take possession indirectly through a receiver appointed pursuant to terms of the mortgage or by court appointment. The lender may sue for possession by filing a statement of claim or take possession without a court order, if possession can be obtained peacefully. This could be accomplished by the

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