386. Subrogated rights of person paying off mortgage debt.

Subrogation is an equitable remedy to reverse or prevent unjust enrichment1. The remedy is available if:

  1.  

    (1)     the defendant has been enriched at the claimant's expense2;

  2.  

    (2)     such enrichment was unjust3;

  3.  

    (3)     there are no policy reasons for denying a remedy4; and

  4.  

    (4)     there are no defences5.

A lender who advances money which is used to discharge a security will therefore normally be subrogated to the rights under that security6 against a borrower and subsequent incumbrancers7 even though there has been no actual transfer of the security. Frequently in such cases it is intended that the lender will be given

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