Can the lender come after me for a shortfall after foreclosure in Alberta?
This answer covers the law of Alberta.
Often not, if the mortgage is on an ordinary individual's home, but there are real exceptions. Under Alberta's Law of Property Act, a lender on an ordinary individual's residential mortgage generally cannot sue on the covenant for payment. In a mortgage action, the lender's right is restricted to the land the mortgage relates to, by sale or foreclosure. Any waiver or release of that protection is void.
Several situations change the answer. A corporate mortgagor does not get the statutory sale-first protection. Mortgages given under the National Housing Act (Canada), and high-ratio mortgages insured by a licensed mortgage insurer, are also excluded, and the lender may sue on the covenant. The protection also does not apply to an individual who was a registered owner of residential land if neither they nor their family ever used it as a residence, such as an investment or rental property, and the individual must show they are not excluded. A guarantor, surety or corporate co-borrower can still be pursued for a shortfall.
Which group you fall into depends on who signed, how the mortgage was insured and how the property was used. A lawyer can confirm this before you assume you are protected.
Key takeaways
- A lender on an ordinary individual's residential mortgage generally cannot sue on the covenant for payment in Alberta.
- The protection does not cover corporate mortgagors, National Housing Act mortgages, or high-ratio mortgages insured by a licensed mortgage insurer.
- Owners of residential land that neither they nor their family ever lived in, such as rentals, are outside the protection and must prove they are not excluded.
- A guarantor, surety or corporate co-borrower can still be pursued for a shortfall, so check who signed.