A new tool for disseminating and selling an immovable

Since January 1, 2016, with the coming into force of the new Code of Civil Procedure, following the exercise of a hypothecary right by a lender, any notice concerning the sale under judicial authority of a property must be published in the Sales Register.

This computerized public register, which has been implemented by the Ministère de la Justice du Québec, is accessible for free on the Internet. Its aim is to promote better publicity of sale notices, reach a greater number of potential buyers and ensure that creditors and debtors can benefit from the best possible proceeds of the sale.

What is a sale under judicial authority?

When a borrower fails to reimburse the mortgage loan, the lender may take a certain action. He can take the property in payment (in which case he becomes the owner and may then sell it as any other owner), or have it sold under judicial authority. In the latter case, the lender does not become owner of the property, but requests that the property be sold to recover what is due to him.

A sale under judicial authority takes place when the mortgage lender asks the court to designate a person to proceed with the sale and set the terms of sale (including the minimum price required). A bailiff is usually chosen to proceed with such a sale. The court may also appoint any other person, including a real estate broker or agency. The person selected is particularly required to publish a sale notice in the sales register.⁽¹⁾

A sale under judicial authority may also take place when a property is seized by a person who has a judgment ordering the owner to pay him an amount of money and the latter refuses to pay.

What should a real estate broker whose services have been retained do in this context?

Practically, when the sale of a property under the judicial authority is carried out by a bailiff, the latter usually enlists the services of a real estate broker to market the property and answer questions from prospective buyers. The broker may also help the bailiff draft the content of the sale notice to be published.

The real estate broker whose professional services have been retained by a person designated to conduct the sale under judicial authority of a property must:

• Verify the identity of the person designated⁽²⁾;
• Make sure to provide accurate and verified information, notably for the purpose of publication of a sale notice in the sales register.

For more details about the terms, time frames and fees for the publication of various sale notices in the register of sales under judicial authority, please check out the Frequently-Asked Questions or contact the Direction des registres et de la certification at the Ministère de la Justice du Québec by phone at 1-855-418-5766, or by email at services@registredesventes.justice.gouv.qc.ca. For any other questions, feel free to contact the OACIQ Info Centre.

For more information, see the following articles on synbad.com:

• Building inspection guide: broker’s responsibilities
  
• Providing accurate and verified information: An obligation
  
• Accuracy and verification of information
• Code civil of Québec (sect. 2791)
• Code of Civil Procedure (sect. 742 and following
• Regulation respecting the Register of Sales (Règlement sur le registre des ventes)

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⁽¹⁾ The sale under judicial authority should not be confused with the taking in payment, which does not have to be preceded by a sale notice published in the register of sales under judicial authority.
⁽²⁾ For verification of the identity of persons designated to conduct a sale under judicial authority, check out Guideline - Preventing and Money Laundering and Real Estate Fraud.