Understanding Power of Sale: Defending Your Home.

Author: Sheenam Behal |

Real Estate Lawyers in Mississauga Ontario


A lender to whom property has been conveyed, subject to a right of redemption, as security for the payment of the debt in a Registry Division;1


A borrower who has conveyed his property to a lender (mortgagee), subject to a right of redemption as security for the payment of the debt, and includes a charger;2

Power of sale

A clause in a mortgage contract, or a statutory power, giving the mortgagee the right and power on default of the debt, to advertise and sell the mortgaged property by public auction or private contract to satisfy,3

A power of sale is the primary legal procedure utilized in Ontario when a homeowner fails to meet their mortgage obligations. Under this process, the mortgagee gains the legal authority to enforce the terms of the mortgage agreement and sell it in order to recover the outstanding debt.

Did you get the Notice of Sale?

In the event, you have missed your payment by 15 or more days, or breached one or more terms of the mortgage; your mortgagee is legally authorized to serve you with a Notice of Sale in the mail or by courier which means that your mortgagee is considering starting a process of power of sale or foreclosure, in the event there are no actions taken to bring the mortgage into good standing by you. The lenders in most of the scenarios choose Power of Sale over foreclosure because of its simpler and quicker nature.

You can defend your home from power of sale by following measures:

  • Under the Mortgages Act in Ontario, mortgagors have the entitlement to seek details regarding the principal amount owed under their mortgage agreement or the expenses associated with a legal claim for a power of sale.
    Mortgagee must furnish an accurate and comprehensive breakdown of the principal amount and/or the associated costs within a 15-day timeframe. If the mortgagee fails to meet this deadline, their ability to pursue the claim is temporarily halted.
  • Upon receipt of Notice of Sale, you have 35-40 days for redemption per Mortgage Act which specifically mandates the settlement of any outstanding amounts, and by settling the arrears and costs, you can effectively halt any enforcement actions.
    Paying the arrears and costs aligns your mortgage with the Mortgages Act, and further saves your home from any legal suit until the mortgage is kept in good standing. If your mortgagee starts the legal claim before the redemption period ends, then such claim shall be deemed as invalid.
  • Courts are generally inclined to grant borrowers an injunction, which is a legal order that stops their mortgagee from proceeding with a power of sale action, provided that the borrowers have brought their mortgage payments up to date and maintain them regularly.
    Courts issue injunctions when borrowers can demonstrate valid reasons to believe that a brief extension of time, typically a few days or weeks, will lead to a favorable resolution for all parties involved, and that the mortgagee will be adequately compensated for any financial losses incurred.

Why do you need a solicitor?

Even with your best endeavors, the possibility of losing your residence remains. In the event that your mortgagee prevails in court, they might issue a writ of possession, compelling you to vacate your home for the purpose of sale. JSM Law strongly advises seeking prompt legal counsel if you are confronted with a power of sale or possession proceeding.

Our firm specializes in engaging in negotiations regarding the information or payout statement, especially when there are irregularities in accordance with the Mortgage Act. Additionally, we can explore the possibility of securing an extension of time if the mortgagee is amenable to such an arrangement. We specialize in managing mortgage default situations adeptly. We handle all legal documentation for your refinancing, private borrowing from private mortgagee, or title transfers within stringent timelines, with the primary goal of safeguarding your home and family from the threat of a Power of Sale situation.

1 (Waters, 1997)
2 (Waters, 1997)
3 (Waters, 1997)