WHAT TO DO WHEN YOUR DEBTOR PLAYS HARD TO GET – LAND SALE
In my previous post, we discussed the option of garnishing a debtor’s bank account when they play hard to get. But what if garnishment isn’t enough? Initiating a land sale is another powerful enforcement remedy.
Step One – Wait
A creditor may not take any step to sell land until four months after filing the Writ with the Sheriff. Furthermore, the Sheriff cannot hold a land sale until six months after filing.[1]
However, that first four-month window shouldn’t go to waste. Use this time to gather the following required documentation so everything is ready to go. Keep in mind that different Sheriff’s offices may have specific document requirements, so always confirm in advance.
Step Two – Gather Documents While You Wait
- Issued Writ of Seizure and Sale
My previous blog discussed different method of issuing a Writ – through WritFiling or the court registrar. If issued through the registrar, remember to file it with the Enforcement Office in the region where the debtor lives or owns assets. If issued through WritFiling, it is deemed both issued by the court and filed with the Sheriff (Enforcement office). Either way, ensure you have a copy of the issued Writ.
- Direction to Enforce (60F)
File the Direction to Enforce (Form 60F) setting out the date of the Order and amount awarded; application post judgement interest rate; enforcement costs; dates and amounts of any payments received; and the amount owing, including the post judgment interest.[2]
This document formally directs the sheriff to enforce the Writ for the amount owing, interest and applicable sheriff’s fees and expenses.
- Copy of Judgments
Provide copies of the Judgment and any costs award Judgment together with the Direction to Enforce.
- Parcel Register
Download an up-to-date Parcel Register from the Land Registry Office. My previous blog breaks down how to pull a parcel register from ONLand without a PIN.
- Copy of the Deed and All Registered Encumbrances
Download all underlying instruments including Deed or Transfer, mortgages and line of credits from the Parcel Register. My previous blog provides a detailed walk-through of the parcel registers, including how to identify and download these instruments via ONLand.
- Mortgage Statements
You must provide all existing mortgages statements and encumbers registered on the title. To obtain mortgage statements, you may contact mortgagee using the contact information listed on the instrument. Provide them with the issued order, issued writ and the parcel register.
The Supreme Court of Canada decision in Royal Bank of Canada v. Trang held that the execution debtor implicitly gave the mortgagee consent to disclosure at the time the mortgage is granted.[3]
You may also obtain the statements by way of Debtor Examination or Court Order.
- Municipal Tax Statement
Contact the local municipality for a tax certificate of the property, provide the supporting documents, and explain that enforcement for a land sale is underway. Note that municipal application fees may apply.
- Certified Appraisal or Certified Letter of Opinion (Up-to-Date)
Retain a licenced appraiser for a certified appraisal or certified letter of opinion detailing the property’s current value (evaluated within the last six months). If the asset is a commercial property, a formal certified appraisal is required.
The report should include the municipal address and physical details of the property, such as street number, construction type (e.g., single-unit, semi-detached, condominium), layout (e.g., multi-story, split-level), and heating and garage specifications.
- Deposit of $5,240
Prepare a cheque of $5,240, payable to the Minister of Finance, to cover the sheriff’s costs of enforcement.
- Letter to the Sheriff
Include a formal instruction letter to the sheriff containing:
- Clear written instructions to sell the property of the execution debtor
- An up-to-date calculation of post-judgment interest
- Marital and ownership details: whether held in joint tenancy or tenancy-in- common, whether the property could be considered a matrimonial home, marital status of the debtor, and the current whereabouts of the spouse or any co-habiting individual
- Confirmation of whether the creditor or representative will attend on the day of sale
Step Three – Submit
Submit the completed document package and fee directly to the sheriff to schedule the sale and check periodically for updates.
While preparing for a land sale takes time and detailed documentation, it remains one of the most effective ways to recover substantial debts. By getting documents ready during the mandatory waiting period, you position yourself to move quickly and maximize your chances of a successful recovery.
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
[1] Rules of Civil Procedure, R.R.O. 1990, Regulation 194 [“Rules”], Rule 60.17 (17) and (18)
[2] Ibid at Rule 60.07 (13)