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What is a Writ of Possession

A Writ of Possession is one of the many documents involved in the Power of Sale process. The Writ of Possession is issued by the courts after the lender has obtained judgment on their Statement of Claim. Writ of Possession is sent to all parties with an interest in the property which includes the lenders, the occupants, and the owners, as well as the local sheriff office. Once the sheriff office gets the writ, they will schedule a day and time to evict the property’s occupants and give control of the property to the lender. This document is typically identifiable by its title “Writ of Possession” and it will plainly state that the lender has the authority to take possession of the property in question.

What Happens After a Writ of Possession

After the Writ of Possession is issued, the sheriff office begins to process the eviction paperwork. The sheriff will typically give 2 weeks’ notice of the eviction and send an Eviction Notice to the property. On average, it takes about 30 days for the property’s occupants to be evicted after the Writ of Possession is sent. Once the lender has possession of the property, they will arrange to sell it typically with a licensed real estate agent. Once the property is sold, any excess profit is given to the homeowner. However, legal and administrative fees for processing the power of sale are deducted from the sales proceeds which in many cases eats up all the money which would have gone to the homeowner.

example writ of possession

The first page of a Writ of Possession document

Methods for Fixing the Situation

If you are looking to stop a Power of Sale after a Writ of Possession has been sent, you must act quickly since there will not be a lot of time left. In the majority of cases, the lenders will refuse to accept any payment aside from the full amount of the mortgage plus fees. One method of stopping the power of sale is to apply for a new mortgage to replace the problematic mortgage. Alternatively, if you sell the property before the eviction then all legal actions are stopped. Some people choose to get a new mortgage and sell the property over the course of several months which would allow for any renovations and more comprehensive marketing of the property.

If a mortgage lender does not receive payment from a borrower, they’ll be forced to act or risk losing their investment. The most common method of recovering an investment is to sell a property via power of sale. The third step in the power of sale process is the Writ of Possession, which comes after the Notice of Sale and Statement of Claim documents. The Writ of Possession is, simply put, a request to a superior court judge to allow the lender to evict and take possession of a property. Once the judge has reviewed the Writ of Possession, they can grant Judgment for Possession which allows the lender to file an eviction request with the local sheriff office.

There are many reasons why a mortgage lender would have to resort to power of sale:

  • The homeowner fails to keep the property insured
  • Failure to pay mortgage payments
  • Unauthorized damage to or use of the property
  • Failing to follow any other terms of the mortgage contract

There are many steps involved in a power of sale action, but once the homeowner loses access to their property, they are more limited in their ability to revolve the situation. Once the Writ of Possession is issued by the mortgage lender, the final steps of the power of sale process are set in motion.

Writ of Possession in Ontario remains in force for one year from the date of the order. It can then be renewed for one year from each renewal.

Occupants are given a date they are required to move out, after which an eviction notice can be issued.

Upon getting a Writ of Possession from a mortgage lender, start to prepare for the next steps:

  • Do the current occupants of the property understand the situation?
  • Are all the occupants able to find alternative living arrangements?
  • Can you move out the property’s contents before the eviction?
  • Is it possible to sell the property before the eviction day?
  • Have you already consulted with other mortgage brokers and lenders about getting a new mortgage?

If you are the owner of the property, you still may be able to prevent the lender from taking possession. Always keep copies of all receipts and documents to ensure there are no legal questions in the event the lender wants to adjust the arrangement.

Important Legal Notice

This article is meant as a general informational resource and you should also consult a professional when dealing with a Writ of Possession and a Power of Sale. There are many variables and potential conflicts involved in fixing a Power of Sale situation. Our team deals with these situations on a daily basis and can give free advice upon request. To get in touch with us please call 416-499-2122 or email ron@powerofsalesontario.ca.

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