Lien Claimants: What Are Your Rights For Enforcing Against A Landlord?

Author:Mr David J. Bishop
Profession:McKercher LLP
 
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When work is completed on rented premises, but the account for that work goes unpaid, a lien may be registered against the real property. This can put pressure on the owner to pay the debt in order to remove the lien. Alternatively, rather than satisfying the debt owed, an owner may choose to vacate the lien. A lien can be vacated in several ways, but one way is to pay funds into Court under sections 56 or 57 of The Builders' Lien Act.

In some cases, lien claimants may also choose to enforce against the landlord of the rented premises on which the work was performed. The Builders' Lien Act provides two avenues to resist an application to vacate a lien against a landlord's interest:

If lien claimants comply with the strict notification requirements set out in section 31 of The Builders' Lien Act, the landlord's interest may be subject to the lien; If the landlord is considered an owner under the Act and expressly or implicitly requested the improvement for their direct benefit, the landlord's interest may be subject to the lien. Notification Requirements

Lien claimants can enforce against the landlord of rented premises they worked on if they previously complied with the notification requirements set out in The Builders' Lien Act. In circumstances where the lien attaches to the interest of a tenant, i.e. the leasehold interest, and the landlord is served by the contractor with written notice before the first lien arises, the landlord's interest will also be subject to a lien. A written notice must contain:

(a) the general nature of the contract; (b) particulars of the improvement to be made; (c) the name of the person with whom the contractor is contracting in relation to the improvement; (d) the legal description or civic address of the land to which the improvement is to be made; and (e) an address for service.

If, however, within 10 days of the notice being given, the landlord responds stating it assumes no responsibility for the improvement, the landlord's interest will not be subject to a lien.

The Saskatchewan Court of Queen's Bench echoed this reasoning in Warneke v 101218236 Saskatchewan Ltd. 2016 SKQB 316, and found that, in the event no notice has been given, a landlord will generally not be subject to any lien.

As such, if the landlord is given notice of the work as set out in The Builders' Lien Act, then to avoid responsibility the landlord must respond to the lien claimant advising it assumes no responsibility for the work...

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