A mortgage in Quebec is defined as the real right on a movable or immovable property made liable for the performance of an obligation. This obligation confers on the creditor the right to follow the property in any hands, to take possession of it or take payment, to sell it or to have it sold and to have a preference over the proceeds of the next sale as determined by the law (art 2660 CCQ). The mortgage is only an accessory to the obligation that it guarantees to be fulfilled and must be published in order for the hypothecary rights it confers to be enforceable against third parties (art. 2661 and 2663 CCQ).
A mortgage in Quebec may be conventional or legal, movable or immovable, depending on whether it charges movable or immovable property. Moreover, it can take place with or without the possession of the mortgaged movable and in this case is also called a pledge (art 2665 CCQ). Discover these two types of mortgages that you can rely on if needed.
The mortgage is a charge on one or more specific properties that may be corporeal or incorporeal, or a set of properties included in a universality. Moreover, it extends to everything that unites the property by accession (Articles 2666 and 2671 CCQ). Furthermore, the mortgage cannot charge immovable property, just as it cannot charge the movable of the debtor who furnishes his principal residence, serving as a household and being necessary to live (art 2668 CCQ). Contact a lawyer to find out more about the properties involved.
In Quebec, the conventional mortgage can only be granted by the person who has the capacity to alienate the property mortgaged. It may be granted by the debtor of the obligation it guarantees or by a third party (art. 2681 CCQ). In addition, the mortgage can be granted for any obligation whatsoever (art 2687 CCQ).
Concerning the immovable mortgage, it must, under pain of absolute nullity, be constituted by notarial act en minute and is valid only so far as the constitutive act designates the mortgaged property in a precise way (art 2693 and 2694 CCQ). In this sense, mortgages on present and future rents that an immovable produce are considered immovable (art 2695 CCQ).
The movable mortgage, on the other hand, must, on pain of absolute nullity, be constituted in writing when it comes without delivery. Accordingly, the constituting act of a movable mortgage must contain an adequate description of the property that is mortgaged (Arts 2696 and 2697 CCQ).
The only claims that may give rise to a legal mortgage in Quebec are:
- Claims of the State for sums due under tax laws, as well as certain other claims of the State or legal persons under public law, specially provided for in particular laws.
- The claims of persons who participated in the construction or renovation of a building.
- The claim of the syndicate of co-owners for the payment of common expenses and contributions to the provident fund.
- Claims that result from a judgment.
The legal mortgages of the State, including those for the sums due under the tax laws, as well as the mortgages of the legal persons under public law, can charge movable or immovable property (art 2725 and 2726 CCQ).
A summary of Mortgages in Quebec
A mortgage produces effects, confers rights and obligations on the creditor of the mortgaged property and enables the mortgage rights to be exercised. The mortgage is an indispensable legal tool to guarantee the performance of an obligation, which debtors should not neglect.
When exercising a mortgage claim in Quebec, a specialized lawyer’s guidance is essential. Contact the Bérard Avocat law firm today. We will evaluate your situation in order to reach a favorable outcome.