Whether a piece of equipment is personal property or a fixture decides which registry — or whether either — will show a competing claim on it, and the line between the two runs through a filing that is optional, not automatic.
Key takeaways
SECTION 01 OF 04
Ontario’s PPSA gives a fixture its own priority rule at s.34(1): a security interest in goods that attached “before the goods became a fixture, has priority as to the fixture over the claim of any person who has an interest in the real property”. That priority is real, and it is registered — if it is registered at all — as an ordinary PPSA financing statement, in the personal property registry, exactly like security over inventory or equipment that will never touch a wall.
SECTION 02 OF 04
Section 54(1) lets a secured party register “a notice of security interest, in the required form… in the proper land registry office, where… the collateral is or includes fixtures or goods that may become fixtures…”. The word is “may”, not “shall”. Nothing in the Act compels a lender who has already filed a PPSA financing statement to also touch the land registry — and s.34(2) explains why that matters: the fixture priority is “subordinate to the interest of… a subsequent purchaser for value… or… a creditor with a prior encumbrance of record… if the subsequent purchase or subsequent advance… is made… without knowledge of the security interest and before notice of it is registered in accordance with section 54”.
So a PPSA search that comes back clean on the fixture question is telling a buyer nothing about whether there is a land-registry notice, because there may never have been a legal requirement to file one — and a land-title search that comes back clean is equally silent on whether a PPSA financing statement exists over the same equipment, because s.54 registration and PPSA registration are two different, optional-in-different-ways filings against the same asset.
SECTION 03 OF 04
Alberta’s Personal Property Security Act makes the timing problem explicit rather than leaving it to inference. Section 36(4) provides that where “a search is made of a certificate of title… at the time of the search there is not any notice under section 49 endorsed on that certificate of title, and… on the day that search is made, in reliance on that search, mortgage money is advanced… that mortgage money is deemed to have been advanced before the registration of any notice under section 49 not disclosed by that search notwithstanding that a notice was registered against that certificate of title on the day that the search was made”.
Read plainly: a mortgagee that searches title and advances funds the same day beats a fixtures notice filed later that same day, even though both events happened on the same calendar date. Section 49(2) is Alberta’s version of Ontario’s s.54 — a security interest in a fixture “may be registered” against the land titles office, again permissive, again a separate filing from the PPSA registration itself.
SECTION 04 OF 04
Equipment financed with a PPSA registration that later gets bolted, wired or poured into a building does not automatically show up on a land title search, and a land title search that is clean does not mean no PPSA financing statement exists over the same equipment. Both registries have to be searched, together with the physical question of what is actually attached and how. See security that follows the assets: the BC and Alberta PPSAs compared and what a buyer takes subject to for the underlying survival rules once a registration is confirmed. Treadstone Law’s note on PPSA fixtures covers the same boundary from an Ontario lending perspective.
No. A secured party’s priority over a fixture is registered as an ordinary PPSA financing statement, but the separate land-registry notice that actually protects that priority against a later purchaser or lender is optional, not automatic — so a PPSA search alone cannot confirm whether such a notice was ever filed.
No, if it searched title first. Where a lender searches the certificate of title, finds no fixtures notice on it, and advances mortgage money that same day in reliance on the search, the advance is deemed to have been made before any notice registered later that same day — even on the same calendar date.
No. A land title search and a PPSA search cover two different, separately optional filings against the same asset, so a clean result on one says nothing about the other. Both registries have to be searched, together with a physical check of what is actually attached to the building.
Sources
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