Module 9 - Other Equitable Interests




Equitable interests do not just arise under unexecuted uses or trusts and under wills since the Estates Administration Act. There is a number of other situations in which you may have an equitable interest. Thus, for example, a person who mortgages land technically conveys the fee to the mortgagee. This means that the mortgagee obtains the legal title (assuming the original estate was legal), but equity treats the mortgagor as having the equitable fee. This, at any rate, is the law unless legislation exists which converts a mortgage into a charge, i.e., solely a security interest. Land titles legislation does so, but registry statutes do not. However, since 1984 in Ontario, you can no longer create a mortgage, only a charge in the registry system: Land Registration Reform Act, S.O. 1984, c.32, ss.1(a), 6(1). Therefore, since that time the mortgagor no longer has the equitable fee.

An equitable interest which starts out as equitable, may eventually become legal. A question then arises whether that has implications for future interests.

The following problems address these issues.

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