Does a mortgagee have an obligation to release unadvanced funds from a trust account in the name of both the mortgagor and the mortgagee?
British Columbia, Canada
The following excerpt is from Cliffs Over Maple Bay (Re), 2010 BCSC 389 (CanLII):
A similar conclusion was reached in Weinberg v. Junior 8 Developments Ltd., [1980] O.J. No. 1419, 16 R.P.R. 21 (H.C.), where Hollingworth J. stated: 11 ...In this case there were monies in a trust account which could not be released unless conditions were met which were agreed upon between the parties. In this case also, the trust account was in the names of solicitors for both the mortgagor and mortgagees and following the Canadian Comstock principal I have no alternative but to state that the monies which were unadvanced did not belong to the mortgagor but belonged to the mortgagee.
"The most advanced legal research software ever built."
The above passage should not be considered legal advice. Reliable answers to complex legal questions require comprehensive research memos. To learn more visit www.alexi.com.
Other Questions
Does the fact that some funds may have been transferred to the joint account of a joint account with a different bank account make up for the failure to plead or lead evidence on false statement and inducement? (British Columbia, Canada)
What is the test for establishing that a transferor intended to transfer funds from a bank account to a personal trust account at the time of the transfer? (British Columbia, Canada)
What is a lawyer’s duty to maintain a trust account for a client who has had his own funds frozen by a court or tribunal? (British Columbia, Canada)
Can beneficiaries of a trust terminate the trust and have the trust property transferred to them? (British Columbia, Canada)
When the BCLRC recommended that the distinction between express and constructive trusts be abolished for limitation purposes, does the distinction take into account the remedial constructive trust? (British Columbia, Canada)
Is a trustee liable for any loss to the trust estate if the trust funds were left uninvested for an unreasonable amount of time? (British Columbia, Canada)
What is the test for determining whether a joint account is held in trust for the estate of a deceased joint account holder? (British Columbia, Canada)
What is the effect of releasing funds to a client without completing the terms of a trust agreement? (British Columbia, Canada)
Is a mortgagee entitled to sue a mortgagor for negligence against the mortgagee? (British Columbia, Canada)
Is a pension fund a trust fund? (British Columbia, Canada)
