Is a mortgagee entitled to a power of sale until after the expiration of a period of redemption?

British Columbia, Canada


The following excerpt is from F.B.D.B. v. F.J.H. Const. Ltd., 1988 CanLII 3004 (BC CA):

That passage defines what is now accepted as the ordinary procedure in these cases. Where the mortgagee seeks a power to sell, it ordinarily should not be granted that power until after the expiration of a fixed period of redemption. It simply does not follow that, if the court makes an exception to the ordinary rule and grants the mortgagee an immediate power of sale, it should include in that order provision for foreclosure. It may fix a period of redemption and, in the same order, provide a power of sale at the expiration thereof. That may be what was intended by the orders made here on 6th April but the difficulty with them is that, presumably because the provision for foreclosure was included on the mistaken assumption that there is a principle requiring lip service to be paid to the right of redemption, the period of redemption is artificial and practically illusory. Effectively, what was done here was to make both orders immediately effective - that is what Pope v. Roberts holds cannot be done.

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