Q: The Alberta PPSA Search Report you sent me for the proposed cross-country financing of our new borrower showed a number of registrations in favour of other existing secured parties designated as “Land Charges”. Our new borrower doesn’t own any real property, so what are those “Land Charges” and why do they appear on a search for personal property liens?
A: Depending on the scope of the collateral description in the underlying security agreement, a debtor may grant to a secured party a security interest in real property in Alberta, whether owned by the debtor at the time the security interest is granted or acquired thereafter. The collateral description granting such an interest might include language such as “all present and after-acquired property” or “all present and after-acquired real and personal property” or may embody language granting “a floating charge on land”. Such security interests, typically known as “land charges”, are often granted when there is no specific piece of land held by the debtor over which a traditional mortgage could be taken at the time of signing of the security agreement.
Land charges are registered at the Alberta Personal Property Registry (the “PPR”) pursuant to the regulations under the Alberta Personal Property Security Act (the “PPSA”). However, the PPSA does not actually govern registered land charges, as that Act excludes from its scope any transaction that creates a security interest in real property. Rather, land charges are governed by the Law of Property Act (the “LPA”), which defines a land charge as “an interest, whether arising immediately or in the future, in real property given by a corporation, that secures payment or performance of an obligation.” Per the foregoing, the land charge provisions of the LPA apply only to land charges given by a corporation. The LPA defines real property to mean “land, an interest in land, including a leasehold interest in land, and a right to payment arising in connection with an interest in land, including an interest in rental payments payable under a lease of land.”
Priority between land charges is similar to the priority of security interests in personal property registered at the PPR: that is, priority between registered land charges is determined by order of registration; a registered land charge has priority over an unregistered land charge and priority between unregistered land charges is determined by the date of execution of the underlying security agreement. The priority of a land charge is, however, always subject to the Land Titles Act and the Mines and Minerals Act and the priority given to security interests registered under each of those Acts. Accordingly, where a corporate debtor owns real property in Alberta in respect of which a certificate of title has been issued, the best practice is to register the land charge by way of caveat against title to the property, as one may register a mortgage or other encumbrance. Priority will then be determined by the order of registration at the Land Titles Office irrespective of the date of registration of the competing land charges at the PPR.