Is a mortgagee entitled to the rental of a tenant that is also a mortgagor's tenant?
Saskatchewan, Canada
The following excerpt is from McAvoy (Bankrupt), Re, 1988 CanLII 4946 (SK QB):
The mortgage contains the usual attornment clause, whereby the mortgagor, the bankrupt, agrees to become the tenant of the mortgagee, F.C.C. But there is no relation of landlord and tenant between the mortgagee and the mortgagor's tenant, unless the tenant chooses to pay the rental to the mortgagee, presumably pursuant to notice given by the mortgagee. A landlord and tenant relationship would then be created between the mortgagee and the tenant, and the mortgagee's remedy would then depend on the circumstances of the case: Vousden v. Hopper (1911), 4 Sask. L.R. 1. Shortly stated, F.C.C. is not automatically entitled to the rental in the hands of the trustee by virtue of the attornment clause in the mortgage.
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