Security interests in fixtures
“secured party” includes a receiver.
36(2)Except as provided in section 30 and subsections (3), (4) and (9), a security interest in goods that attaches before or when the goods become fixtures has priority with respect to the goods over a claim to the goods made by a person with an interest in the land.
36(3)A security interest referred to in subsection (2) is subordinate to the interest of a person who acquires for value an interest in the land after the goods become fixtures, including an assignee for value of the interest of a person with an interest in the land at the time the goods become fixtures, if the interest is acquired without fraud and before notice of the security interest is registered in accordance with section 49.
36(4)A security interest referred to in subsection (2) is subordinate to the interest of a person with a registered mortgage of the land who, after the goods become fixtures,
(a)
makes an advance under the mortgage, but only with respect to that advance,
(b)
obtains an order for sale or foreclosure, or
(c)
serves a notice of sale on the mortgagor under a power of sale provided for in the registered mortgage or under section 45 of the
Property Act,
without fraud and before notice of the security interest in the fixtures is registered in accordance with section 49.
36(5)If a notice of a security interest in fixtures has not been registered in accordance with section 49 when a search is made of the records of a land registry office or the title register of a land title office by or on behalf of a person with a registered mortgage of the land, any advance under the mortgage made on the same day that the search was made shall be deemed to have been made before registration of a notice under section 49, notwithstanding that the notice was registered on the same day that the search was made.
36(6)The priority under this section of a person with an interest in the land referred to in subsection (3) or of a person with a registered mortgage of the land referred to in subsection (4) is not affected by priority rights in the land under the
Registry Act or the
Land Titles Act.
36(7)A security interest in goods that attaches after the goods become fixtures is subordinate to the interest of a person who has an interest in the land when the goods become fixtures and who
(a)
has not consented to the security interest,
(b)
has not disclaimed an interest in the goods or fixtures,
(c)
has not entered into an agreement entitling the person to remove the goods, or
(d)
is not otherwise precluded from preventing the debtor from removing the goods.
36(8)A security interest in goods that attaches after the goods become fixtures is subordinate to the interest of a person who acquires an interest in the land after the goods become fixtures if the interest is acquired without fraud and before notice of the security interest in the fixtures is registered in accordance with section 49.
36(9)A security interest in goods that attaches before, when or after the goods become fixtures is subordinate to the interest of a creditor of the debtor who causes a judgment affecting the land to be registered in the records of the appropriate land registry office or the title register of the appropriate land titles office under the
Enforcement of Money Judgments Act before notice of the security interest in the fixtures is registered in accordance with section 49.
36(10)The interest of a creditor of the debtor referred to in subsection (9) does not take priority over a purchase money security interest in goods that become fixtures if a notice of the security interest in the fixtures is registered in accordance with section 49 not later than fifteen days after the goods are affixed to the land.
36(11)A secured party who has the right, under this Act, to remove goods from land shall exercise the right of removal in a manner that causes no unnecessary damage or injury to the land and to other property situated on it or that puts the occupier of the land to any greater inconvenience than is necessarily incidental to the removal of the goods.
36(12)A person, other than the debtor, who has an interest in the land when the goods subject to the security interest are affixed to the land is entitled to reimbursement for any damage to the interest of the person in the land caused during the removal of the goods, but is not entitled to reimbursement for diminution in the value of the land caused by the absence of the goods removed or by the necessity to replace them.
36(13)A person entitled to reimbursement under subsection (12) may refuse permission to remove the goods until the secured party has given adequate security for the reimbursement.
36(14)The secured party may apply to the Court for one or more of the following orders:
(a)
an order determining the person entitled to reimbursement under this section;
(b)
an order determining the amount and kind of security to be provided by the secured party;
(c)
an order specifying the depository for the security;
(d)
an order authorizing the removal of the goods without the provision of security for reimbursement under subsection (13).
36(15)If the interest of a person with an interest in the land is subordinate to a security interest in the goods under this section, the person with an interest in the land may, before the goods have been removed from the land by the secured party, retain the goods on payment to the secured party of the lesser of the following:
(a)
the amount secured by the security interest in the goods that has priority over the interest of the person with the interest in the land; and
(b)
the market value of the goods were the goods to be removed from the land.
36(16)A secured party who has a right to remove goods from land shall give to each person who appears by the records of the appropriate land registry office or the title register of the appropriate land titles office to have an interest in the land, a notice of the intention of the secured party to remove the goods.
36(17)A notice under subsection (16) shall contain
(a)
the name and address of the secured party,
(b)
a description of the goods to be removed,
(c)
the amount required to satisfy the obligation secured by the security interest,
(d)
the market value of the goods,
(e)
a description of the land to which the goods are affixed, and
(f)
a statement of intention to remove the goods unless the amount referred to in subsection (15) is paid on or before a specified date that is not less than fifteen days after the notice is given under subsection (16).
36(18)A notice under subsection (16) shall be given at least fifteen days before removal of the goods and may be given in accordance with section 69 or by registered mail addressed to the address of the person to be notified as it appears in the records of the appropriate land registry office or the title register of the appropriate land titles office.
36(19)A person entitled to receive a notice under subsection (16) may apply to the Court for an order postponing removal of the goods from the land.
1995, c.33, s.4; 2004, c.35, s.4; 2013, c.32, s.30