A lawyer who pays out a mortgage or makes a partial payment on a mortgage for the purpose of releasing one or more lots secured by the mortgage is responsible for ensuring that a release of mortgage or partial release of mortgage, as appropriate, is recorded to remove the security from the title to the subject lots.1
A lawyer who is preparing a release of mortgage or recording a release of mortgage must:
a) Confirm with the client and document instructions to release all parcels (if more than one) to be released including any parcels created by subdivision subsequent to recording of the mortgage;
b) Determine if the Releasor has authorized release of all parcels, if the mortgage attaches to more than one;
c) Determine if there has been an amendment or if there is a related instrument such as an assignment of rents, postponement or textual qualification which ought to be released/removed;
d) Ensure that any release by a corporate Releasor is given under seal, failing which the Release must set out the authority of the person executing the Release2;
e) Ensure, when recording a Release, that the name of the Commissioner or other authorized person before whom it is sworn or signed, is typed, stamped, or printed legibly below the signature of such person3;
f) Ensure the accuracy of the information contained in Form 27, bearing in mind the fact that the Form contains a certificate of legal effect.
A lawyer who has given an undertaking for the release of a mortgage must ensure that this is done in a timely manner, either by obtaining and recording a release or by effecting removal pursuant to s.60 of the Land Registration Act4.
- Regulations made pursuant to the Legal Profession Act, S.N.S. 2004, c. 28, ss.8.2.7 and 8.2.8
- Land Registration Act, S.N.S 2001 c.6, ss.79 and 83
- Land Registration Administration Regulation, 5(10)
- Regulations made pursuant to the Legal Profession Act, S.N.S. 2004, c.28, ss.8.2.6‐8.2.10. See also 2007 Mortgage Payout Protocol available on LIANS website
Release of Multiple Lots
A lawyer should not rely solely on a Property Online search based on document or book/page number of a mortgage if the lawyer is aware that there are multiple parcels of land to be discharged by a release of mortgage. The lawyer must determine if parcels were subsequently consolidated or subdivided or if those parcels related to the original mortgage have different document numbers due to the number of parcels exceeding the recording limit as they may not have been included in the search results. A lawyer should review the original mortgage description as well as all relevant plans to ensure that all parcels that are subject to the mortgage have been captured in the release.
Removal pursuant to Land Registration Act s.60
Where there are reasonable and probable grounds to believe that all of the obligations have been performed, the security interest holder has agreed to the release, the security interest does not affect the parcel, or no security interest exists, a written demand may be served upon the holder of the security interest and if that holder does not comply with the demand within thirty days following service, the Registrar may be required to cancel or amend the recording.
An unreleased security interest in a residential mortgage that is more than forty years old and that has not been amended or supplemented by an instrument recorded during the preceding forty years is not an interest to be included in a parcel register and should not be included in the Application for Registration when migrating. If the mortgage is dated less than forty years ago at the time of migration or if it has been revised or supplemented by a document less than forty years ago, it must be included in the Application for Registration but once the forty year period has elapsed, it can be removed by operation of law.
Real Property Limitations Act s.24(2)
If a period of more than twenty years has elapsed from the maturity date set out in the mortgage or any registered or recorded renewal thereof, the mortgage does not constitute an interest in the parcel and is not to be included in the Application for Registration. If it already exists in the parcel register, it can be removed by operation of law. It should be noted that the application of this provision is not limited to residential mortgages and, unlike s.40(1) of the Land Registration Act, the time period for this remedy is twenty years as opposed to forty years. If there is no maturity date set out in the mortgage or any registered or recorded renewal thereof, section 24(2) is not relevant.
Approved by Council on November 22, 2002; Amended by Council on January 24, 2020.