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Rosalie A. Clarke, Dan W. Melnick
In recent years, our courts have considered the interplay between retention rights that arise in court. builder lien law, RSBC 1997, c. 45 and land rights law, RSBC 1996 c. 250. For example, we previously reported to you that 4HD Construction Ltd. vs. Dawson Wallace Construction Ltd. (2020 BCSC 1224), builder lien law and the land rights law If a party seeks the issuance of a certificate of pending litigation (seeCPL”) from land. recently, Parkbridge Lifestyle Communities Inc. v New West Custom Homes (Kelowna) Inc.2022 BCCA 299, BC Court of Appeals held that the builder’s lien claim was land rights law It is the result of the lien plaintiff not suing for over a year.
Background
under builder lien law, a lien plaintiff filing a builder lien claim shall commence notice of the civil claim and register the CPL to complete its lien claim within one year after the lien is filed. is needed.of builder lien law Silent about the legal steps Must Occurs after notice of civil claim is filed. Section 252 land rights lawHowever, the owner must provide proof of a pending lawsuit registered against the property that the owner may apply for a waiver against his property if no proceedings have been filed for one year. I’m here.
of park bridge, the BC Court of Appeals, Judge Denying Petition by Plaintiff and Applicant Parkbridge Lifestyle Communities Inc. to Dismiss Lien Claims Filed by Defendant General Contractor New West Custom Homes (Kelowna) Inc. Parkbridge is the owner of the development project and has hired New West as the project’s general contractor. A dispute over construction progress and payments ensued, resulting in New West claiming a builder’s lien (“lien”) against property ownership.as contemplated by builder lien lawNew West subsequently commenced litigation and had a certificate of pending litigation filed against the property.
chambers judgment
After the lien was filed, Parkbridge obtained an order of exemption from the lien under section 24 of the lien. builder lien law Concerning the guarantee of the par value of the lien. After obtaining Section 24 immunity, Parkbridge filed a response to the civil claim and counterclaim, and various actions were taken in the lawsuit, including amending the counterclaim and notice of New West’s civil claim.
Before Parkbridge files its application to revoke the builder’s lien (to be heard in September 2020), the final step taken in the lawsuit is for New West to file a notice of amendment of its civil claims on May 23, 2019. That was it. builder lien law and the land rights law Should be read together to set new deadlines for lien claimants. builder lien law.
A Chamber of Commerce judge dismissed the application, finding that the lien claim under the lien was revoked. builder lien law It may lead to revocation of the relevant CPL and vice versa is not true. land rights law And New West did not proceed for more than a year to extinguish the lien.
Court of Appeal decision
Parkbridge has appealed this decision. The BC Court of Appeals upheld the House Judge’s decision, land rights law If the lien claimant fails to proceed for a year (or more), it does not provide grounds for dismissing the builder’s lien claim.
In reaching its decision, the Court of Appeals emphasized the differences between the CPL and the builder’s lien claim. A builder’s lien claim is a mechanism by which a party asserts a claim to title to land, and the CPL notifies that a claim to title to land is asserted, asserts priority, and so on. If not, it just limits how the land is handled. Once the underlying claims are determined. Thus, a party that loses its lien will lose its rights to the land, while a party that loses the CPL only loses the mechanism for notifying its claim to the land.
The Court of Appeals further commented that if Congress had intended to remove the CPL: land rights law To effect the extinguishment of the lien claim, it would have explicitly provided for this builder lien lawAs a result of the review and consideration, builder lien law and the land rights lawthe Court of Appeals held that the fundamental flaw in Parkbridge’s position was that the CPL renounced ownership of the property by payment of security at the time it applied for the extinguishment of the lien under section 252. I confirmed. land rights lawAt this time there is no existing CPL and therefore the Court did not have jurisdiction to make an order under the CPL. land rights law.
Key points and considerations
This decision of the Court of Appeals states that a party seeking relief related to a builder’s lien claim will not be entitled to such relief. builder lien law when evaluating their strategy.both land rights law and the builder lien law To deal with charges against land, our courts builder lien law has been drafted to reflect a comprehensive code that sets out the various remedies and remedies available to lien claimants and holders. Parties to a lien dispute should be careful not to confuse the remedies or rights available under a mortgage. builder lien law along with any remedies or rights available under land rights law.
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