Consents of encumbrancers
All amending agreements must include the consent of encumbrancers registered subsequent to the mortgage being amended. In addition, consents must be obtained from those prior encumbrancers that have postponed their interest to the subject mortgage.
Consent is not required from registrants of encumbrances that will not be affected by mortgage sale and foreclosure proceedings, including:
• Building restriction caveats
• Condominium liens, notices and change agreements
• Registered conforming construction agreements
• Contaminated Site Remediation Act notices and liens
• Court Orders that create (or pertain to) recognized exceptions (e.g. easements)
• Development Schemes (registered under s.76.2 or by way of caveat)
• Easement agreements, declarations & caveats, including party wall and right of way agreements
• Notices under The Energy Savings Act or The Efficiency Manitoba Act
• Expropriation caveats or agreements
• Rehabilitation scheme notices
• Statutory easement agreements and caveats (including deemed statutory easements) & utility and pipeline easements
• Tax sale registrations
• Water Resources Administration Act order, notice, or cancellation of a notice
• Zoning caveats and development agreements
• Provincial Heritage Site designations
• Historic Property notices
Consent of encumbrancers unavailable
If the consent of an encumbrancer cannot be obtained, two options can be considered:
- The parties can give notice of the amending agreement by way of a caveat registered on title, targeted at the instrument being amended.
- The instrument being amended can be postponed to the encumbrance in question. While this would enable the amending agreement to proceed without the consent, it would give that other encumbrance priority over the instrument being amended.
The district registrar cannot recommend either of these options as a best-practice because they both have very real limitations.