Author: Mark Danielson

The Builders Lien Act, S.B.C. 1997, c. 45 (the "Act") prescribes multiple time limits for filing a claim of lien. Generally, these time limits run from 45 days from the occurrence of a triggering event. It is often difficult to determine when, or if, such a triggering event has occurred.

I am asked by clients who think they may be unable to file a claim of lien due to the expiry of the applicable time limit: (a) whether they should file a claim of lien anyways; and (b) what the consequences of filing a claim under such circumstances might be.

The Supreme Court of British Columbia recently held that a party that submitted misleading plans to a municipality to obtain a building permit had no remedy in court even though it may have suffered damages. In Shafazand v. Whitestone Management Ltd., 2014 BCSC 21, a contractor was engaged by a construction manager to build a residence for a property owner who wished to have an illegal suite constructed in the residence. The owner instructed the construction manager to submit misleading plans to the municipality to obtain a building permit.

There may be many disputes over the course of a residential construction project. These disputes are often resolved through negotiation and without resorting to litigation. However, if such disputes escalate and litigation is commenced, the parties to the dispute may quickly multiply as each party seeks to spread the blame for a problem among other participants in the project’s construction. For instance, a dispute between an owner and contractor may evolve when the contractor says the project’s architect, engineers, and subcontractors are liable for the owner’s problems.

In West Fraser Mills Ltd. v. BKB Construction Inc., 2012 BCCA 89, the British Columbia Court of Appeal confirmed restrictions upon the ability use certain provisions of the Builders Lien Act, S.B.C. 1997, c. 45 (the “Act”) to remove lien claims from land quickly and economically. The decision is also notable because it casts doubt on a lower court’s finding that removal of equipment of land did not constitute lienable work under the Act.
 

The Builders Lien Act, S.B.C. 2007, c. 45 and the Strata Property Act, S.B.C. 1998 set out five triggering events from which the time to file a claim of lien starts to run:

1.    The issuance of a certificate of completion;

2.    Actual completion of a head contract or improvement;

3.    Abandonment of a head contract or improvement;

4.    Termination of a head contract or improvement; and

5.    Conveyance of a strata lot to a purchaser.

In Action Holdings Ltd. v. Trend Homes Ltd., 2011 BCSC 381, the Supreme Court of British Columbia clarified when a claim of builder’s lien may be filed for work that is not done on the land subject to the claim of lien. 

Court of Appeal Overturns Award for Business Losses from Construction Disruption