Property Line And Neighbour Disputes In BC: Fences, Trees, And Boundaries

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Determining where property lines are is not as simple as it may seem. You cannot merely look to where an old fence happens to sit to figure it out. To know exactly where your property ends and your neighbour’s begins, you must look to the registered title and survey plans of your property.

How boundaries are legally determined 

Land registered with the Land Title and Survey Authority (“LTSA”) will have a legal description and survey plans, which set out the exact boundaries of your property. Information about these records can easily be accessed through the LTSA website. Encroachments, meaning physical objects put on your property by your neighbour, don’t create ownership rights in BC. Adverse possession is when a person acquires rights to a piece of land by using it openly for a given amount of time, without the legal owner stopping them. This is NOT the law in BC, although it may be elsewhere. BC abolished adverse possession against registered titleholders long ago.

The role of a BC Land Surveyor 

If there is a dispute about where a property line is, the first professional you should contact is a surveyor, not a lawyer. A surveyor will be able to determine the boundaries of your property. If the surveyor is unable to determine the existing boundaries, they will investigate and establish where the property lines should be.

Encroachments 

BC’s Property Law Act governs what should happen to land which is subject to an encroachment. If your neighbour has put a fence, shed, or driveway on your side of the property line, there are a few different things which may happen. The court can order, on application, that the owner of the land has an easement on the land encroached, vest title to the land encroached on in the owner of the land encroaching (on making the compensation that the court determines), or order the owner to remove the encroachment or the fence so that it no longer encroaches on any part of the adjoining land.

Trees and Fences

A landowner has the right to trim branches and roots that cross onto their property up to the property line, given that they do not enter onto their neighbour’s land or trim branches or roots on their neighbour’s property. When a tree is growing on the boundary line it is considered jointly owned between the neighbours. Due to this joint ownership, one neighbour cannot remove or destroy the tree without the consent of the other neighbour or legal grounds to do so. There is no general BC statute forcing cost-sharing of boundary fences (unlike some other provinces), so fences typically come down to an agreement between the neighbours or local bylaws.

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Is This Defamation? Understanding Defamation Law In BC

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Defamation Law in BC: Libel, Slander & Online Reviews

Have you or your business suffered a loss as a result of someone else’s words? Conversely, is someone alleging that you have caused them harm because you shared a review online? It can be hard to tell whether a person has a legitimate claim for defamation under the law. This article provides basic information about defamation law in BC.

The basic elements of defamation in BC

There are three things which must be proved for a defamation claim to be successful. As set out in the case of Grant v. Torstar Corp., 2009 SCC 61, (1) there must be a defamatory statement, (2) the statement must refer to the plaintiff, (3) the statement must be communicated to a third party. Once these three things have been proved the person being accused of defamation must put forward a defence to escape liability. If it has been proved that a defamatory statement referring to the plaintiff was made to a third party, it is presumed that the statement was meant to cause harm to the reputation of the plaintiff.

Libel vs. slander 

Libel and slander both fall under defamation. The difference between libel and slander is the method by which the statement is communicated to third parties. Libel is typically recorded in some form and shared. Under BC’s Libel and Slander Act, RSBC 1996, c 263 defamatory words in a broadcast are deemed to be published and to constitute libel. Social media posts also fall under libel. Slander is shared with third parties in passing, typically through verbal statements. It is easier to prove damages for libel than for slander. This is because slander generally requires proof that a loss has resulted from the defamatory statement, whereas when libel is made out there is a presumption that the statement was meant to cause harm.

Key defences

There are a number of defences against a defamation claim. If the defendant can prove that the allegedly defamatory statement is true, this is the defence of truth or justification. There is also the fair comment defence, which can be found under s.6.1 of the Libel and Slander Act. The fair comment defence protects people expressing an opinion. The defence of qualified privilege applies where a person has a duty to communicate the allegedly defamatory statement to a third party. Finally, responsible communication on matters of public interest is a defence for making allegedly defamatory statements as well.

Online reviews and social media specifically 

The question then becomes whether a successful defamation claim can be brought against a person for posting reviews online and, specifically, on social media. There is tension between genuine consumer complaints and opinions, and defamatory claims. Courts are cautious about preventing legitimate criticism. Online reviews and posts to social media are often protected under the defence of fair comment (as described above). That being said, in the case of Level One Construction Ltd. v Burnham, 2018 BCSC 1354 it was explained that the fair comment defence can be defeated, if it is shown that the person who made the statement acted maliciously.

BC’s anti-SLAPP law 

The Protection of Public Participation Act allows for quicker dismissal of Strategic Lawsuits Against Public Participation (“SLAPP”). It lets defendants get early dismissal of lawsuits that target public-interest expression, which affects strategy on both sides. If an application to dismiss the proceedings is made under this legislation, it must be shown that the proceeding arises from an expression made by the person making the application and that the expression relates to a matter of public interest. If this first step is proved, the onus is then on the other side to prove that there are grounds to believe that the proceeding has merit. They must also prove that the applicant has no valid defence in the proceeding and that the likely harm to the respondent is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression.

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Do I Actually Need A Lawyer For Small Claims In BC?

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If someone owes you money or a contractor did bad work, you may be asking yourself whether you really need to hire a lawyer or whether you can just handle it yourself. Cases which do not involve a lot of money and seem straightforward may or may not be worth hiring a lawyer. The question is, how do you know whether you will be able to navigate the dispute yourself. That is a highly fact dependent question, so here is some information about how claims of smaller monetary value are handled and some indications as to whether you should consider hiring a lawyer or whether you should represent yourself.

Two tracks in BC 

There are two tracks which are meant for people to make their civil claim without the assistance of a lawyer, depending on the monetary value of their claim. The Civil Resolution Tribunal (“CRT”) is meant for claims up to $5,000. The Provincial Court (“Small Claims”) is meant for claims up to $35,000. Both of these processes are meant to be straightforward, simple, and affordable.

What the CRT process actually looks like

The CRT is an online dispute resolution process intended for people to navigate themselves, without the assistance of lawyers. If parties cannot reach an agreement, the tribunal can make decisions about the dispute. Parties can make an agreement to settle at any point in the process. The first step is to either apply to get the process started (if you are the one making the claim) or respond to a claim brought by the other party. The next step is to negotiate to try to reach an agreement. If negotiations are not working, a CRT case manager will step in to help the parties reach an agreement. Finally, if an agreement still cannot be reached, the tribunal will make a decision about the dispute.

What Small Claims looks like

Small Claims is a court process meant for people to settle their disputes in a straightforward and simple manner. The first step to get started in Small Claims is to file a Notice of Claim. A Notice of Claim is a form that gets filed with the court registry and sets out basic information about the claim, such as who was involved, what happened, and how much the claim is for. You can file the Notice of Claim at the court registry location which is closest to either where the other party lives or carries on business, or where the event that led to the claim took place. The next steps are for the party who filed the Notice of Claim to serve the notice on the other party and wait for their reply. The registry will set a date for a settlement conference and notify the parties. At the settlement conference the judge will sit down with the parties and try to find a way to settle the matter. If the matter is not resolved, the next step is to begin the trial process. At trial each party makes their case to the judge, and the judge makes a decision. After the judge makes their decision, either party can make an appeal to BC Supreme Court if they disagree with the decision.

When self-representation works well 

Given that the CRT and Small Claims are designed to be straight forward and accessible enough to be used without the assistance of a lawyer, there are cases in which it makes more sense to represent yourself, such as clear-cut debt claims. Other factors which favour self-representation are if the claim is for a small dollar amount or if there is good documentation. The less complex the matter is, the more likely you are to successfully represent yourself.

When it doesn’t 

Despite the fact that the CRT and Small Claims are meant to be simple enough to navigate without a lawyer, there are still instances where a dispute may become complex enough that hiring a lawyer is worth it. One example of this is where there is disputed responsibility or liability, meaning the defendant does not  agree that it is in breach of certain obligations (or at fault). This may require obtaining expert evidence. Counterclaims also make matters more complicated because they are claims that the person who is being sued in the initial claim makes against the party suing them. Further, if there are evidence issues, it can become difficult to figure out what is good evidence for your case. If the opposing party lawyers up, this may also be incentive to hire your own lawyer, so you are not at a disadvantage. Another consideration is whether there is a chance your claim might exceed the CRT or Small Claims ceiling. If it is a possibility that your claim may need to be brought in Supreme Court, navigating the Supreme Court system may prove to be more of a challenge. These are all issues a lawyer can help you with.

Strata matters

Strata matters are typically initially addressed by the CRT. The CRT can help resolve a number of strata dispute issues including, non-payment of strata fees, non-enforcement of strata bylaws, and issues regarding common property. That being said, the CRT cannot address certain issues, such as matters that affect land, specific significant issues in a strata complex, and disputes outside of their jurisdiction (i.e. outside BC, claims against the government, etc.).

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“Can My Landlord Do That?”

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“Can My Landlord Do That?” — A Plain-Language Guide To BC’S Residential Tenancy Act

The statute that governs this 

Tenancy agreements and rental units are governed by BC’s Residential Tenancy Act (“RTA”). When there is a dispute between a landlord and a tenant, the Residential Tenancy Branch (“RTB”) is the tribunal that resolves these disputes (most of the time). The RTB applies the RTA, to resolve disagreements between landlords and tenants.

Entry into the rental unit 

A landlord must not enter a rental unit unless the tenant gives permission at the time of the entry. Otherwise, the landlord must give the tenant written notice at least 24 hours and not more than 30 days before the entry, and it must be for a reasonable purpose. The landlord may also enter the unit if they have an order of the director authorizing the entry, the tenant has abandoned the rental unit, or an emergency exists and the entry is necessary to protect life or property. A landlord may inspect a rental unit monthly. Under the RTA, emergency repairs mean repairs which are urgent, necessary for health or safety, or for the preservation of the residential property. They must be made for the purpose of repairing:

  • major leaks in pipes or the roof,
  • damaged or blocked water or sewer pipes or plumbing fixtures,
  • the primary heating system,
  • damaged or defective locks that give access to a rental unit,
  • the electrical systems, or
  • in prescribed circumstances, a rental unit or residential property.

Security and pet damage deposits 

A landlord must not require or accept either a security deposit or a pet damage deposit that is greater than half of one month’s rent. If a landlord accepts a security deposit or a pet damage deposit that is greater than half a month’s rent, the tenant may deduct the overpayment from rent or otherwise recover the overpayment. Within 15 days after either the date the tenancy ends or the date the landlord receives the tenant’s forwarding address in writing (whichever is later) the landlord must either repay any security deposit or pet damage deposit to the tenant with interest or make an application for dispute resolution claiming against the security deposit or pet damage deposit.

Rent increases 

Under the RTA, landlords can only increase the rent once every 12 months. Landlords must give tenants at least 3 months notice before the date that the increase in rent is effective. There is also only a certain annual allowable percentage that the landlord can raise the rent by. The percentage amount is equal to the current inflation rate.

“Renovictions” and landlord’s use evictions 

A “renoviction” occurs when a landlord ends a tenancy for the purpose of preforming renovations or repairs on the rental unit. In 2021 residential tenancy changes were made to protect tenants from “renovictions”.  Landlords are now required to apply to the RTB for pre-approval before ending a tenancy to carry out renovations. Further, tenants can argue that the tenancy does not need to be ended for the work to be done. In response, landlords must have the necessary permits and approvals, as well as proof that the work is necessary and that the tenancy must be ended to complete it. Further, if a landlord does not carryout the renovations after the tenant has moved out, it is now easier for tenants to receive compensation for this.

When to go to the RTB vs. when to call a lawyer 

The RTB is designed for self-representation and is an affordable and accessible way for landlords and tenants to resolve their disputes. While the RTB is a great option for straightforward disputes with relatively small monetary amounts, there are times when getting a lawyer is worth it. Cases involving a large deposit, complex tenancies, or an unlawful eviction with resistance may be difficult to navigate on your own without the help of a lawyer.

Landlord termination of tenancy on a sale of the property

Under s.49 of the RTA, a landlord can end a tenancy if the landlord has entered into an agreement to sell the rental unit. All the conditions for the sale must be met before the tenancy can be ended. It is the right of the purchaser of the property to ask the landlord to give notice to end the tenancy if the purchaser, or a close family member of the purchaser, intends to occupy the rental unit.

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Can I Get Out of a Contract in BC?

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Can I Get Out of a Contract? Cooling-Off Periods and Contract Basics in BC

You’ve entered into an agreement with another party, and now you would like to back out of the contract. What are your options? This article will provide an overview of contract law in BC, including the general rule when it comes to trying to get out of a contract, when there are specified windows for cancelling a contract after signing, and how to get out of a contract when there is no specified window to do so.

The General Rule 

In Canada, the general rule is that once you sign a contract, you’re bound by the terms of that agreement. You cannot back out of the contract once it has been signed and becomes binding, regardless of whether you no longer wish to be a part of the agreement. Unless you can get out of the contract by relying on the terms of the contract itself or a statutory right to cancel the contract, you are liable to preform your obligations under it. There is no universal right to cancel a contract within a specified period after the contract has been signed. However, there are specific instances in which a “cooling-off period” may exist, which entitles a party to cancel the contract within a certain amount of time after it has been signed.

Where cooling-off periods DO exist in BC

A cooling-off period exists in real estate law. Under s.42 of the Property Law Act, BC has a 3-business-day Home Buyer Rescission Period, which was introduced in 2023. Meaning, a purchaser of residential property can cancel the contract of purchase and sale for the property by serving written notice on the seller within 3 business days after the date that the acceptance of the offer was signed. This cooling-off period does not apply to property that is located on leased land, a leasehold interest in residential property, property that is sold at auction, and property that is sold under a court order or the supervision of a court. If a purchaser cancels a contract of purchase and sale, they must pay 0.25% of the purchase price set out in the contract to the seller.

Direct sales (such as door-to-door sales) contracts and distance sales (such as online shopping) contracts also have a cooling-off period. Under BC’s Business Practices and Consumer Protection Act (the “BPCPA”), a consumer can cancel a direct sales contract by giving notice of cancellation to the supplier within 10 days of receiving a copy of the contract. A consumer can cancel a distance sales contract by giving notice of cancellation to the supplier within 7 days after they receive a copy of the contract, if the sales contract does not contain all of the necessary information, the supplier does not give the consumer the opportunity to correct errors in the contract, or the supplier does not give the consumer the opportunity to accept or decline the contract. A consumer has 30 days to cancel the contract, if the supplier does not provide the consumer with a copy of the contract.

Timeshares and continuing services (such as a gym membership) contracts also have specific cancellation rights under the BPCPA. Consumers can cancel time share contracts and continuing services contracts by giving notice of cancellation to the supplier within 10 days of receiving a copy of the contract. A consumer can cancel a time share contract within one year after the date that the consumer receives a copy of the contract, if the contract does not contain the information required under the BPCPA. A consumer can cancel a continuing services contract at any time if there has been a material change in the circumstances of the consumer or the services provided by the supplier.

Contracts with NO cooling-off period

Contracts which are not included as having a cooling-off period under the BPCPA, do not have a window designated by legislation for parties to cancel the contract. Common types of contracts which are not mentioned in the BPCPA include most retail purchases and service agreements. However, even if a contract does not have a cooling-off period, there may still be a way to back out of it.

Grounds to get out of a contract that has no cooling-off right 

Even if there is no cooling-off period, you may be able to get out of a contract if the other party has made a misrepresentation. A misrepresentation is a statement that a party to the contract represents as a fact but is untrue and misleading. If you have relied on a misrepresentation by the other party, you may be entitled to a remedy, potentially including the cancellation of the contract.

Another reason a contract may be cancelled is on the grounds of unconscionability. Under the BPCPA, if an unconscionable act or practice has occurred, that transaction is not binding on the consumer. An unconscionable act can happen before, during, or after the consumer transaction. A court will look at all the circumstances the supplier knew or ought to have known about. This includes whether the supplier subjected the consumer to undue pressure to enter into the transaction or if the supplier took advantage of the consumer’s inability or incapacity to reasonably protect their own interest.

There are also specific contract terms which are prohibited under the BPCPA, such as terms which prevent consumers from posting reviews online. The inclusion of one of these terms would void the contract. Frustration of the contract may also void the contract. Frustration is where circumstances the contract did not anticipate occur and carrying out the contract as it was intended is no longer possible. It should be noted that financial hardship or the inability to make payments under the contract are not sufficient to engage frustration.

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Understanding Unjust Enrichment

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What is Unjust Enrichment?

Unjust enrichment occurs when a party confers a benefit upon another party without receiving the proper restitution required by law. Unjust enrichment is a strict liability and faultless claim, meaning the plaintiff will only get back exactly what was transferred. The principle aims to reverse an unjustified transfer and restore the parties to their pre-enrichment status.

The Elements of a Successful Unjust Enrichment Claim

To successfully claim unjust enrichment, three key elements must be satisfied:

  1. Objective Benefit to the Defendant: The defendant must have received a benefit, which can be anything of value, such as money, services, or property.
  2. Corresponding Deprivation to the Plaintiff: The plaintiff must have suffered a loss or deprivation as a result of the benefit conferred on the defendant.
  3. Absence of a Juristic Reason: There must be no legal justification for the defendant’s retention of the benefit. In other words, the benefit received by the defendant cannot be justified by a contract, a gift, or a legal obligation.

Defences Against Unjust Enrichment Claims

There are several defences that a defendant might use to counter a claim of unjust enrichment:

1. Subjective Devaluation: This defence may defeat the first element of the unjust enrichment claim when the defendant did not have a choice in accepting the benefit. More specifically, when the defendant did not voluntarily choose to assume financial responsibility for the benefit.

Rebutting Subjective Devaluation: The plaintiff can rebut the subjective devaluation if:

  • The defendant requested or accepted the benefit with knowledge of the expectation of payment.
  • The benefit was readily returnable, and the defendant did not return the benefit to the plaintiff.
  • The defendant has received an incontrovertible benefit such as money, realized financial gain, or the saving of a necessary expense.

2. Change of Position: This defence applies if the defendant has spent or used the benefit they received in a way that means they no longer have it. To use this defence successfully, the defendant must prove:

    • Extraordinary Expenditure: The benefit was spent on something unusual or special, not regular expenses—for example, buying concert tickets instead of paying a credit card bill.
    • Relying on the Benefit: The defendant only spent the benefit because they believed they were entitled to it. For instance, they bought the concert tickets because they thought the benefit was theirs to keep.
    • Good Faith: The defendant must show they acted honestly. If they knew they weren’t entitled to the benefit, they couldn’t use this defence.

3. Public Policy and Reasonable Expectations: In some cases, the defendant may argue that retaining the benefit aligns with public policy or reasonable expectations. This defence is evaluated on a case-by-case basis.

Conclusion
Unjust enrichment is a complex area of law aimed at ensuring fairness when one party unfairly benefits at another’s expense. Whether you’re pursuing a claim or defending against one, grasping these principles is crucial to achieving a fair resolution.

If you suspect you’ve been subjected to a case of Unjust Enrichment and would like to book an appointment with one of our lawyers, call 1-866-753-2202 or drop us an email.

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Litigation Privilege – What About Communications Amongst the Board of Directors?

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Does Litigation Privilege Apply to Communications Amongst the Board of Directors?

Litigation privilege prevents a party to litigation from having to disclose documents that were made in anticipation of or for the purpose of litigation. Litigation privilege ensures the efficacy of Canada’s adversarial process by giving parties a “zone of privacy” to conduct investigations and prepare for litigation.[1]

While solicitor-client privilege is broader in scope, litigation privilege is distinct in that it is not limited to confidential communications between a solicitor and client. Litigation privilege does not require a solicitor to be a party to the communications whatsoever. However, the courts have noted that litigation privilege, in comparison to solicitor-client privilege, is “less absolute, more fact-driven and subject to challenge.”[2]

A pertinent question then arises: does litigation privilege protect communications among directors of a corporation or society?

Litigation Privilege Criteria

The short answer is it depends. For litigation privilege to apply, the party asserting privilege must establish for each document over which privilege is being claimed:

(1) that litigation was ongoing or was reasonably contemplated at the time the document was created; and

(2) that the dominant purpose of creating the document was to prepare for that litigation.[3]

The two-prong test is objectively assessed, meaning very little consideration is given to the party’s subjective thoughts. The first prong of the test is assessed by asking: “Would a reasonable person being aware of the circumstances conclude that the claim will not likely be resolved without litigation?”[4] The analysis of the second prong is fact-driven, focusing on the surrounding circumstances in which the document was created.[5] Considerations in this analysis include “when [the document] was created, who created it, …and what use was or could be made of it.”[6]

How to Protect Directors’ Correspondence

If directors intend to rely on litigation privilege to protect their correspondence, they must ensure that the documents are created in the face of litigation, and that the dominant purpose of the documents is for the impending litigation. It is prudent practice for directors to specify that the dominant purpose of the document is for litigation. Additionally, directors should avoid including disparaging or irrelevant comments in the correspondence to maintain the dominant purpose of litigation.

[1] Blank v Canada (Minister of Justice), 2006 SCC 39 at paras. 27 and 34.
[2] Stone v Ellerman, 2009 BCCA 294 at para. 27.
[3] Gichuru v British Columbia (Information and Privacy Commissioner), 2014 BCCA 259 at para. 32.
[4] Raj v Khosravi, 2015 BCCA 49 at para. 11.
[5] Ibid, at para. 17.
[6] Birring Development Co. Ltd. v Binpal, 2021 BCSC 1298 at para. 31.

 

Contact Heath Law in Nanaimo for any questions.

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Fraudulent Misrepresentations in Real Estate Transactions: The Truth Hurts, But Lies Kill Contracts

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Understanding Fraudulent Misrepresentations in Real Estate Contracts

A recent decision out of Ontario (1000425140 Ontario Inc. v 1000176653 Ontario Inc., 2023 ONSC 6688) illustrates how fraudulent misrepresentations in real estate transactions can lead to the rescission of the contract. The case involved Aiden Pleterski, the self-described “Crypto King”, and NBA basketball star, Shai Gilgeous-Alexander. The defendants fraudulently misrepresented to the plaintiff, Gilgeous-Alexander, that the luxury home was private and secure, and omitted to disclose the ongoing safety risk of defrauded investors attending the property and threateningly demanding to know where Mr. Pleterski was. There was ample evidence to support the ongoing safety risk, including Mr. Pleterski being kidnapped, held hostage and physically harmed by people he had defrauded. The Court found that the defendants knew of the safety risk at the property. The Court held that the safety concerns of the plaintiff were legitimate and not simply “sensitivities or superstitions.”

The defendants argued that they were shielded from liability by the “buyer beware” doctrine and argued that they did not make any fraudulent misrepresentations. However, the Court held that rescission of the contract was the appropriate remedy in this case, putting the parties back to their original positions.

What is a Fraudulent Misrepresentation?

A fraudulent misrepresentation occurs where a representation of fact is made without any belief in its truth, with the intent that the person to whom it is made shall act upon it and actually causing that person to act upon it. A fraudulent misrepresentation may be a direct lie or a significant omission, also known as a half-truth. Generally, an executed contract for the sale of land can only be rescinded if fraud is present.

What is the “Buyer Beware” Doctrine?

The “buyer beware”, or caveat emptor doctrine operates to protect sellers of land by holding buyers responsible for defects that would be discoverable upon a reasonable inspection. Simply put, a seller is not responsible for everything that could potentially impact a property, but they may be responsible where they knew of, or ought to have known of the presence of the defect and failed to disclose it to the purchaser. As such, fraudulent misrepresentations are one exception to the doctrine. A seller who makes a fraudulent misrepresentation cannot rely on caveat emptor to shield themselves from liability.

Could this Outcome Occur in British Columbia?

Had this case occurred in British Columbia, it is possible that the outcome would be the same. However, it would require exceptional facts. In a case out of the Court of Appeal for British Columbia (Wang v Shao, 2019 BCCA 130), the seller’s omission about a murder on the property was not found to be a fraudulent misrepresentation, and the buyer was not entitled to rescission. In another case out of BC (Karner v Kuhnke, 2021 BCSC 1942), a couple selling a home failed to disclose a geotechnical report identifying a dangerous rock wall behind the house requiring costly remediation work. The sellers only disclosed that some rocks had fallen onto the deck but did not disclose the full extent of the risk. By intentionally revealing only parts of the truth, the buyers were led to believe that the rock wall was not an issue. The Court found that the half-truths told by the sellers regarding the rock wall amounted to a fraudulent misrepresentation. The sellers were liable for the tort of deceit. The plaintiff buyers in this case did not seek rescission, however, rescission of the contract may have been an alternative remedy had they not wanted to keep the property.

If you think you’ve been a victim of a fraudulent real estate transaction, book a consultation with Nanaimo’s best team of legal experts in real estate law and litigation.

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Removing a Builders Lien in BC

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I have had a Builders Lien filed against my property; what can I do to remove it?

Generally, a builders’ lien is a charge on property by a person who has supplied work or material to a building under construction. Since builders’ liens are typically simple and inexpensive to file against property, an owner may find themselves in a situation with multiple liens against their title. The filing of a builders’ lien can have an immediate and serious impact. It may affect the ability to gain financing or interfere with the sale of the property. Therefore, it may be necessary for persons affected by a lien to have methods at their disposal to obtain a discharge of the lien.

The Builders Lien Act (“BLA”), ss. 22 to 25, outline procedures for how persons who have interests in the liened property can obtain the discharge of liens. For example, section 24 of the BLA provides that a claim of lien can be cancelled by “giving security”. This process essentially involves money being paid into court. The money paid is considered to be sufficient to cancel the claim of lien and allows the person who has the interest in the property to carry on activities as usual. There are other legal means to discharge a builders’ lien, and our team of real estate and litigation experts can provide you with this advice. Call our office at 250-753-2202 to request an appointment.

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Filing a Builders Lien

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Filing a Builders Lien against the owner of a property for lack of payment

The Builders Lien Act (BLA) can be an important tool for those in the construction industry.

One of the main purposes of a builders lien is to ensure that owners are not able to obtain an improvement to their land without paying for work and materials used to create such an improvement. In order to claim a builders lien a person may be a contractor, subcontractor, or worker as defined under s. 1(1) of the BLA; and have performed or provided work, supplied material or both in relation to an improvement. For example, a subcontractor can file a lien to recover monies owed for improvements made on the construction of a new multi-residential building. Section 1(1) of the BLA provides clarification in the form of definitions of contractor, subcontractor and worker. They are as follows:

  • Contractor: A person contracting with or employed directly by an owner to perform or provide work and/or to supply materials in relation to an improvement.
  • Subcontractor: A person engaged by a contractor or another subcontractor to perform or provide work or supply materials in relation to an improvement. Note that the definition does not include a worker or person engaged by an architect, engineer, or material supplier.
  • Worker: A person engaged by an owner, contractor, or subcontractor for wages in any kind of work, whether employed under a contract of service or not, but the definition does not include an architect or engineer, or person engaged by an architect or engineer.

The BLA also defines an owner as:

  • a person who has any legal or equitable interest in the land on which an improvement is made, at whose request and
    • 1. on whose credit or behalf,
    • 2. with whose knowledge or consent, or
    • 3. for whose direct benefit the work is done, or material is supplied. [section 1(1)]

Filing a builders lien can be complicated as there are many important deadlines. Obtain legal advice and direction from a lawyer when considering filing a lien to ensure that the lien is filed correctly and within the permitted time.

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