Did you know that buying a home after a payment recovery is never covered by a warranty of quality or against hidden defects?
To begin in case of a non-payment of the mortgage, the creditor (the person granting the mortgage) must provide the debtor (the person paying the mortgage) a prior notice of exercise of a hypothecary right. Article 2758 Civil Code of Québec provides that “a prior notice of the exercise of a hypothecary right shall disclose any failure by the debtor to perform his obligations, and contain a reminder, where applicable, that the debtor or a third person has the right to remedy the default. It shall also disclose the amount of the claim in capital, and in interest, if any, and the nature of the hypothecary right which the creditor intends to exercise, furnish a description of the charged property, and demand from the person against whom the hypothecary right is to be exercised that he surrender the property before the expiry of the period specified in the notice.” In doing so, if he did not remedy the default, the debtor has 60 days after the registration of the prior notice to abandon the building in question.
But what is the surrender? In fact, the name says it all. Hence, the surrender may be voluntary or forced.
To be called voluntary, generally, the debtor must meet two conditions: 1) Surrender must be done before the expiration of the notice of content and 2) there must be an abandoned or a written consent of the returning the goods.
As for the forced surrender, it often happens following a court order. The decree may be made only after the court has established the existence of the debt, the failure of the debtor to pay, the debtor’s refusal to voluntarily surrender his residence and the absence of a valid reason of opposition to surrender. However, if the debtor still refuses to leave the premises in conformity with the judgment, the creditor can appeal to a bailiff.
Subsequently, in the vast majority of cases, the creditor will opt for taking in payment. Once this is done, the claim will be considered extinct and the debtor will no longer be in debt to the creditor in that capacity.
If unfortunately this happens to you, do not hesitate to contact a lawyer. He can help you learn about your rights and protect them.
Text written by Me Roxane Trudel-Pigeon in collaboration with Andrey Leshyner, master’s student in international law / Translated by Andrey Leshyner