What is the test for a mortgagee's claim that the respondent improperly relinquished possession of the property?
Ontario, Canada
The following excerpt is from Investors Group Trust Co. v. K-P-T Properties Inc., 1996 CanLII 10230 (ON CA):
The appellant made three submissions before this court. First, it claimed that the respondent improperly relinquished possession of the property because a mortgagee in possession cannot relinquish possession without an order of the court. The appellant cited no authority for this proposition other than Prytherch, Re (1889), 42 Ch. D. 590, and Lusk v. Perrin (1920), 19 O.W.N. 58 (H.C.). To the extent that these cases are applicable to this appeal, however, they establish only that a mortgagee in possession has to account for the period of its occupation upon giving up possession. The appellant's first submission, therefore, is unsupported.
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