๐๐จ๐ซ๐ญ๐ ๐๐ ๐ ๐๐ง๐๐จ๐ซ๐๐๐ฆ๐๐ง๐ญ ๐ข๐ฌ ๐ฅ๐ข๐ค๐ ๐ ๐๐จ๐ฑ ๐จ๐ ๐๐ก๐จ๐๐จ๐ฅ๐๐ญ๐๐ฌ
You never know whatโs going to appear on title.
That lesson played an important role in the recent Ontario Court of Appeal decision in ๐๐๐๐ ๐๐จ๐ฆ๐ ๐๐จ๐ซ๐ญ๐ ๐๐ ๐ ๐๐จ๐ซ๐ฉ๐จ๐ซ๐๐ญ๐ข๐จ๐ง ๐ฏ. ๐๐ซ๐จ๐๐.
The situation:
๐ย A lender was trying to sell under power of sale.
๐ย There was a Certificate of Pending Litigation (CPL) sitting on title.
๐ฉ๐ปโโ๏ธ The lower court said it had no jurisdiction to discharge the CPL.
๐ โโ๏ธ The Court of Appeal disagreed.
In the real world, CPLs registered on title can:
๐ฅถ Freeze a deal.
๐จ Scare off buyers and lenders.
๐ฏ Derail a power of sale even when all proper steps have been taken.
In the Broad decision, the Court confirmed two things that should matter a lot to lenders:
1. A CPL on title ๐๐จ๐๐ฌ๐งโ๐ญ ๐๐ฎ๐ญ๐จ๐ฆ๐๐ญ๐ข๐๐๐ฅ๐ฅ๐ฒ ๐ค๐ข๐ฅ๐ฅย your power of sale.
2. Courts do have discretion to discharge a CPL ๐ฐ๐ก๐๐ง ๐ข๐ญ ๐ข๐ฌ ๐ฃ๐ฎ๐ฌ๐ญ ๐ญ๐จ ๐๐จ ๐ฌ๐จ, especially where a mortgagee is exercising a valid power of sale.ย
The Court made clear that a CPL is not untouchable and can be discharged when it is necessary to allow the land registry to reflect the ๐ ๐จ๐จ๐ ๐ญ๐ข๐ญ๐ฅ๐ย that a purchaser under power of sale is entitled to receive.ย
So if a CPL appears on title during enforcement, donโt assume the file is dead.
Imagine lining up a buyer, negotiating terms, and getting ready to close only to discover a CPL registered weeks earlier by someone claiming an interest in the property.
There is still a path forward.
The real fight isnโt always about the mortgage.
Sometimes itโs about clearing title so that a sale can actually close.
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