The legal hypothec resulting from a judgment is the legal privilege that allows the party having won a judgment (for example, a judgment of the Small Claims Court, the Court of Québec or the Superior Court) to use the immovable of the losing party as security for the condemnation provided for in the said judgment.
Quebec legislation is clear that a formal notice is a written document in which the other party’s failure to pay is mentioned. This written document must generally be sent to the person in default before a legal case is opened, asking them to comply with their legal obligations:
1594. The debtor can be put on notice to perform the obligation by the very terms of the contract, when it is stipulated that the mere passage of time for performance will have this effect.
He may also be placed in default by an extrajudicial request from his creditor to perform the obligation, by a legal action brought against him or, again, by operation of law alone.
1595. The extrajudicial request by which the creditor puts the debtor in default must be made in writing.
It must allow the debtor sufficient time to perform, having regard to the nature of the obligation and the circumstances; otherwise, the debtor can always perform within a reasonable time of the request.
Source: Civil Code of Quebec, RLRQ c CCQ-1991, art 1594 and 1595
In the case of a legal hypothec resulting from a judgment, the usefulness of formal notice is different. Theoretically, the condemned party has already been summoned, by the effect of the judgment, to pay the amount involved in the legal proceedings, so this step is not explicitly provided for in the law.
In practice, it is customary to send a formal notice at the same time as thenotice of registration of a legal hypothec. Since the notice of registration must contain certain formalities required by law, the formal notice is useful to explain the content of the accompanying mortgage notice, and to make it clear to the debtor that he will lose ownership of his property if he fails to pay the condemnation amount. This is an additional incentive to pay the fine.
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