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22 Jul

Risk and Commercial Mortgages : Informed Consent and its Authorization


Posted by: Randell Toporowski

Commercial mortgage origination is a process.  It is a multi-faceted process.  It is a detailed process.  The concept of Informed Consent defines a process in which an individual (Corporation) consents to or withholds consent to the various steps in the mortgage origination process.  Informed consent must have the following elements:

  • It must be Voluntary
  • the Risks, Benefits and alternatives of lending must be disclosed to the Borrower
  • the Individual granting consent must be competent, have the capacity to and be of legal age
  • Individual (Corporation) must be legally able to contract
  • The individual granting consent must be able to do so under the terms of the Corporations Shareholders Agreement and/or Articles of Incorporation
  • Borrower must be afforded the opportunity to ask questions
  • The questions asked by the borrower must be answered fully and understood by the borrower
  • Authorized in a document

The risk?  Poor communication that leads to consent that was not informed!

It is the responsibility of the Commercial Mortgage Broker to support both the lender and the borrower – and act in their best interest.  This means that every Commercial financing request that arrives on a Broker’s desk can be considered complete and substantial once the client has granted informed consent and authorizes such in an appropriate document.  In Saskatchewan, mortgage brokers must comply with both the Statute “The Mortgage Brokerages and Mortgage Administrators Act”, and the Regulations “The Mortgage Brokerages and Mortgage Administrators Regulations”.  These Laws and Regulations detail the items that a Broker must disclose to the client.  They include, but are not limited to:

  • The Broker will obtain Corporate, personal and financial information from various sources, including credit bureaus
  • Disclosure if a lender has an ownership in the Mortgage Brokerage
  • Disclose information to any lender, credit bureau, insurer or insurance agent
  • Client agrees to pay all insurance premiums, and that the broker is not responsible for lapse or failure of such
  • Client agrees to pay legal, appraisal, registration fees and expenses incurred in connection with this mortgage
  • To cooperate with local, Provincial and National authorities in the investigation unlawful or improper activities
  • et al

Subject to these disclosures the client should be afforded every opportunity to ask questions and receive answers.  Hence, the consent is informed! And, the client authorizes such by signing the consent and disclosure documents.

Following this, the Commercial Mortgage Broker performs the document review, analysis of the financial statements and determines if the application has commercial substance to support the lending that the borrower is requesting.  The application at this point then becomes a “Go or No Go”, based upon the quality analysis of the documents provided to the Broker.

The risks that exist in Commercial Mortgage Origination must be identified, investigated and explained.  If consent is not informed, it is not consent!

Randell Toporowski is an Accountant in private practice and an Associate Mortgage Broker with DLC Powerhouse Mortgages in Regina, SK.  He can be contacted at 306-541-5438.