Everyone knows that there are things that you do when you are young that need some undoing when you get older. I won’t talk about most of those things, just about legal things. You are young back in the 1960’s and want to go back to the land. You buy a piece of land in Haliburton in 1965, maybe it is waterfront or maybe not. You are young and you do not have a lot of money. You buy the property for $7,000 but you only have $4,000 in your bank account. The vendor likes you and agrees to take back a mortgage for $3,000 which gets registered on title to your property. You dutifully make the monthly mortgage payments to the vendor, as mortgagee, whom you have come to know personally. When you make the final payment you mail the mortgagee a note saying that this is the last payment, please write me back confirming that the mortgage has been paid in full. You get the letter from the mortgagee and file it away.
Decades go by. You build a cottage on the property. More decades go by and you finally decide to sell it in 2009. Your lawyer checks the title to the property and finds that the 1965 mortgage is still on title to your property. The lawyer tells you that you cannot sell until the mortgage is discharged (removed) from title to the property. The lawyer and you try to contact the mortgagee so that the mortgagee can simply sign discharge papers. However, the mortgagee is deceased. What can you do to discharge the mortgage? In order to discharge the mortgage, your lawyer must make a special application to the court. An application of this kind typically must prove two things. Firstly, you must explain to the court the reason you are not delivering the court papers to the mortgagee. In your case, the mortgagee is deceased so the proof is easy. In other cases, you may have to demonstrate the steps you have taken to locate the mortgagee. Secondly, you must prove to the court that the mortgage has been paid off. In your case, this is easy because you have the written confirmation. In other cases, you may have bank statements or cancelled cheques to help prove that the mortgage has been paid off. Once you obtain the court order, your lawyer will have to register it on title to your property before the mortgage is considered discharged.