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Measures prior to the exercise of mortgage rights: surrender

Surrender is voluntary or forced.1

Voluntary surrender

Surrender is voluntary where, before the period indicated in the prior notice expires, the person against whom the mortgage right is exercised abandons the property to the creditor in order that the creditor may take possession of it, or consents in writing to turn it over to the creditor at an agreed time. If the mortgage right exercised is taking in payment, voluntary surrender shall be attested in an act made by the person surrendering the property and accepted by the creditor.2

Forced surrender

Surrender is forced where the court orders it after ascertaining the existence of the claim, the debtor’s default, the refusal to surrender voluntarily, and the absence of a valid cause for objection.3

The judgment fixes the period within which surrender shall be effected, determines the manner of effecting it, and designates the person in whose favour it is carried out.4

A creditor who has obtained surrender of the property has simple administration thereof until the mortgage right he intends to exercise has in fact been exercised.5

Note of interest

Once voluntary or forced surrender has taken place, the broker may no longer intervene in the sale of the immovable. This terminates the brokerage contract.

1 S. 2763 C.C.Q.
2 S. 2764 C.C.Q.
3 S. 2765(1) C.C.Q.
4 S. 2765(2) C.C.Q.
5 S. 2768 C.C.Q.

Last updated on: December 18, 2023
Reference number: 266046