Enforcement and Expiry of the Lien Flashcards
Two important terms in procedure of a lien
preservation and perfection
Step One
A lien must first be preserved
What does preservation do?
Stops the expiry of a lien (lien rights arise upon beginning of work and exist until expiration)
How do you preserve?
To preserve a lien a claimant must register the claim under the appropriate land registration scheme within the appropriate time period
NB Timeframe
Depends upon the role:
- For work provided/ services= 30 days
- Material or supplies= 60 days
What is the date calculated from for the timeframe for preservation
calculated from the date of completion/abandonment
Registration specifies
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
Regulation prescribes
The form of the lien
NB Act provides which forms?
- three different forms for three different situations*
1) General Claim
2) Claim for lien wages
3) Claim for lien wages by several claimants
Lien claim will be supported by
- a sworn affidavit by the claimant
- Person swearing the affidavit must have personal knowledge of the facts deposed
What level of compliance required for preservation in NB?
- 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
What is fixed for preservation in NB?
Substantial compliance is sufficient, but the time period is fixed (ex: not getting owners name right will not invalidate but going overtime will)
All acts require
Lien be registered
What will not be saved by substantial compliance in preservation?
Generally will not save it against failing to register in time or failing to register against the relevant property
Step Two
- You need to perfect a lien after preserving it
- A preserved lien can expire if not perfected
To perfect you need
Commencement of action + certificate of action (if lien remains on title)
Commence an action
To perfect you need to commence an action to enforce that lien
Certificate of Action
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
Lien will not remain on title when
the contractor vacates, it will attach to security paid to the court
Perfection time limit in NB
In NB you have 90 days from filing the claim or expiry of period of credit, to perfect the lien
Perfection by sheltering
Some jurisdictions like ONT allow lien claimants to perfect their claims by “sheltering” under the perfected lien claims of others on the same improvement
Failure to proceed with the action
Clearing title of abandoned liens
Time period beyond preservation and perfection
Unless a trial has been set down in that time period the legislation deems it to be abandoned
Time period for abandonment in NB
That time period is 1 year from date of registration in NB
Once time period for abandonment is up
any party can apply to have the lien discharged after that period
Lien will not be discontinued (abandonment) if
there is a trial date or an application has been made to continue the action
