How to Remove an Old Mortgage from Title in Ontario

You go to sell or refinance, and your lawyer finds a mortgage on title that you paid off years ago, or one you never knew about. Until it is removed, most buyers and lenders will not proceed. Here is how old mortgages are removed from title in Ontario, from the simplest route to a court order.

Why the mortgage is still on title

In Ontario, a mortgage is registered on title as a "charge." Paying it off ends the debt, but it does not remove the charge from the parcel register. Removal requires a separate document, a discharge of charge, to be signed by the lender and registered.

Old charges stay on title for ordinary reasons. The lender was a private individual who never registered a discharge. A bank or trust company merged and the paperwork was lost. A lawyer gave an undertaking on an earlier closing to obtain the discharge and it was never completed. Or the lender simply died before anyone asked.

Option 1: A discharge from the lender or its successor

If the lender was a bank, trust company or credit union, start there. Most institutions have a discharge department that will register a discharge once they confirm the loan was paid. If the original lender has merged or been acquired, the successor institution usually holds its records and can sign.

This is the fastest and least expensive route, but it can take several weeks, and some institutions cannot locate records for loans paid decades ago.

Option 2: A discharge signed by the lender's estate

If the lender was an individual who has died, the person with authority to sign is usually the estate trustee (executor). The trustee may need a Certificate of Appointment of Estate Trustee, and will want to be satisfied that the loan was repaid. Our article on deceased lenders covers this in more detail.

Option 3: An application to the Land Registry Office

The Land Titles Act gives the land registrar limited power to correct errors and amend the register on sufficient evidence (sections 75 and 158). These routes can help with clear clerical errors. In our experience, the Land Registry Office will rarely delete a mortgage on the owner's evidence alone, and it often directs owners to obtain a court order.

Option 4: A court order

Where no one can or will sign a discharge, the Superior Court of Justice can order the mortgage discharged. The usual tools are:

• The Mortgages Act. Where the mortgage has been paid and a discharge cannot be obtained without undue delay or expense, the court can order it discharged. Where some amount may still be owing and the lender cannot be found, the court can permit the amount to be paid into court and the mortgage discharged.

• The Land Titles Act. A person aggrieved by an entry on the register, or by a failure to make one, may apply to the court to rectify the register (sections 159 and 160).

• The Real Property Limitations Act. A lender generally cannot sue to recover mortgage money more than ten years after the right to payment arose. That does not remove the mortgage from title on its own, but it is often important evidence on the application.

The court will expect evidence: the registered mortgage, title searches, proof of payment where it exists, death certificates and estate records, corporate searches for a dissolved lender, and an account of the steps taken to find someone who could sign. The order is then registered on title, and the mortgage is deleted.

How long does it take, and what does it cost?

A cooperative lender can usually deliver a discharge within weeks. A court application takes longer and costs more, but it is a well-trodden process. Where a closing or refinance is at stake, the court can hear the application on an urgent basis, and in suitable cases we have obtained and registered orders within four to five days.

How we can help

We remove old mortgages and fix title defects across Ontario for homeowners, estates, closing lawyers and title insurers. Send us the parcel register or the property address, tell us your deadline, and we will tell you which route fits and what it is likely to involve.

General information only, not legal advice. Every matter turns on its own facts.