18 | summer 2019 cmba-achc.ca CMB MAGAZINE
A
s much as I oen hear that
the Canadian legal system
moves slowly, way too slowly,
the law does evolve. As cases
weave their way through
the courts, the law changes, adapts and
fine-tunes legal issues. As such, the mortgage
practitioner is well served by keeping up with
the changes. I will attempt to highlight a few.
A. THE LIMITATION ACT,
RENEWALS, AND ON-DEMAND
MORTGAGES
Prior to examining a recent 2018 case by the
British Columbia Court of Appeal that addresses
the new Limitation Act in British Columbia, a
quick recap of the Limitation Act and how it
affects lenders is prudent and necessary.
Quite oen mortgage terms change as
between the lenders and borrowers over
the lifespan of the mortgage. Many changes
do not require registration in the land title
office. ese amendments are usually made
CHOOSING
TO AVOID THE
STORM
NEW CASE LAW
AND PRACTICE
POINTS FOR
MORTGAGE
PRACTITIONERS
BY TIMOTHY LACK, LL.B.
informally without the use of legal counsel or
other formalities.
I recommend familiarizing yourself with
the various forms of renewal agreements. While
a straightforward document, many lenders
use their own form of document to cra their
renewals without the use of counsel. e
major concern with renewals is that registered
mortgages are subject to the Limitation Act.
PRACTICAL TAKEAWAY: In British Columbia,
mortgages are subject to the Limitation
Act and lenders need to be wary of the
shortened two-year term. Brokers, lawyers
and professionals should be vigilant and
warn clients who wrongfully assume that
registration of a mortgage creates an enduring
and endless security.
Recently, the British Columbia Court of
Appeal addressed the new Limitation Act
and how it affects "on-demand" mortgages in
Leatherman v. 0969708 B.C. Ltd., 2018 BCCA
33. You will recall that these types of mortgages
newcaselaw
