Enforcement and Expiry of the Lien

Question 1

Two important terms in procedure of a lien

Answer 1

preservation and perfection

Question 2

Step One

Answer 2

A lien must first be preserved

Question 3

What does preservation do?

Answer 3

Stops the expiry of a lien (lien rights arise upon beginning of work and exist until expiration)

Question 4

How do you preserve?

Answer 4

To preserve a lien a claimant must register the claim under the appropriate land registration scheme within the appropriate time period

Question 5

NB Timeframe

Answer 5

Depends upon the role:

• For work provided/ services= 30 days
• Material or supplies= 60 days

Question 6

What is the date calculated from for the timeframe for preservation

Answer 6

calculated from the date of completion/abandonment

Question 7

Registration specifies

Answer 7

1) the content
2) name and address of the lien holder
3) identity of the owner/believed owner
4) for whom the work was requested and on whose credit it was done
5) the date of last work/supply and a description of it
6) the sum being claimed
7) description of the land being charged

Question 8

Regulation prescribes

Answer 8

The form of the lien

Question 9

NB Act provides which forms?

Answer 9

• three different forms for three different situations*
  1) General Claim
  2) Claim for lien wages
  3) Claim for lien wages by several claimants

Question 10

Lien claim will be supported by

Answer 10

• a sworn affidavit by the claimant

- Person swearing the affidavit must have personal knowledge of the facts deposed

Question 11

What level of compliance required for preservation in NB?

Answer 11

• substantial compliance with registration requirements is sufficient
• A lien will not be invalidated only by failure to comply with those requirements unless it prejudices others

Question 12

What is fixed for preservation in NB?

Answer 12

Substantial compliance is sufficient, but the time period is fixed (ex: not getting owners name right will not invalidate but going overtime will)

Question 13

All acts require

Answer 13

Lien be registered

Question 14

What will not be saved by substantial compliance in preservation?

Answer 14

Generally will not save it against failing to register in time or failing to register against the relevant property

Question 15

Step Two

Answer 15

• You need to perfect a lien after preserving it

- A preserved lien can expire if not perfected

Question 16

To perfect you need

Answer 16

Commencement of action + certificate of action (if lien remains on title)

Question 17

Commence an action

Answer 17

To perfect you need to commence an action to enforce that lien

Question 18

Certificate of Action

Answer 18

if the relevant lien remains on title, a certificate of the action is registered against the title to the land within a specified number of days

Question 19

Lien will not remain on title when

Answer 19

the contractor vacates, it will attach to security paid to the court

Question 20

Perfection time limit in NB

Answer 20

In NB you have 90 days from filing the claim or expiry of period of credit, to perfect the lien

Question 21

Perfection by sheltering

Answer 21

Some jurisdictions like ONT allow lien claimants to perfect their claims by “sheltering” under the perfected lien claims of others on the same improvement

Question 22

Failure to proceed with the action

Answer 22

Clearing title of abandoned liens

Question 23

Time period beyond preservation and perfection

Answer 23

Unless a trial has been set down in that time period the legislation deems it to be abandoned

Question 24

Time period for abandonment in NB

Answer 24

That time period is 1 year from date of registration in NB

Question 25

Once time period for abandonment is up

Answer 25

any party can apply to have the lien discharged after that period

Question 26

Lien will not be discontinued (abandonment) if

Answer 26

there is a trial date or an application has been made to continue the action