Power of Sale

April 9, 2019

Obtaining a mortgage from a financial institution is a common thing to do when purchasing a home. Mortgage documents that a buyer must sign include standard terms, which outline the resources available to the bank in the event of non-payment by the borrower.  One such recourse is the bank’s power of sale.

Notice of Sale

Power of sale is the bank’s ability to sell the property in the event that the mortgagee does not pay their regular payments or otherwise defaults on the terms of the mortgage.   In the event that the mortgagee has defaulted by at least 15 days, a Notice of Sale may be sent. This notice advises the mortgagee of the time they have in order to remedy the default.  This means that if there are payments outstanding, then these must be paid, plus any costs or interest incurred in the meantime. The time allowed for the mortgagee to rectify the deficiency cannot be less than 40 days.  If a Notice of Sale has been sent, a real estate lawyer should be contacted immediately to advise on the right course of action. If payments have been made, so as to bring the mortgage into good standing, then no further action is required.

The Claim

In the event that the mortgagee has not brought the mortgage into good standing, the mortgage company may issue a Claim, requesting permission to sell the property in accordance with the terms of the mortgage.  If a real estate lawyer has not been contacted at this point, then it is strongly recommended, so that a defense may be filed.

Writ of Possession

With a successful judgment, the financial institution may issue and file a Writ of Possession, allowing for the eviction of the property owner so that the bank may sell the property.  At any stage of the process, a real estate lawyer is your best resource.

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