Parkbridge Life-style Communities Inc. v. New West Customized Houses (Kelowna) Inc., 2022 BCCA 299 – Interplay between the Builders Lien Act and the Land Titles Act

By Rosalie A. Clark and Dan W. Melnick

In recent times, our courts have thought of the interplay between lien rights that come up beneath the Builders Lien Act, RSBC 1997, c. 45 and the Land Title Act, RSBC 1996 c. 250. For instance, we’ve previously reported to you on the choice of 4HD Building Ltd. v. Dawson Wallace Building Ltd. (2020 BCSC 1224), which clarified the interplay of the Builders Lien Act and the Land Title Act when a celebration is searching for a discharge of certificates of pending litigation (“CPLs”) from land. Just lately, in Parkbridge Lifestyle Communities Inc. v New West Custom Homes (Kelowna) Inc., 2022 BCCA 299, the BC Courtroom of Attraction confirmed {that a} builders lien declare couldn’t be cancelled beneath the Land Title Act because of the lien claimants failure to take any steps in its litigation for over a 12 months.

Background

Below the Builders Lien Act, a lien claimant that information a declare of builders lien is required to begin a discover of civil declare and register a CPL to excellent its lien declare inside one 12 months of the lien being filed. The Builders Lien Act is silent as to any litigation steps that should happen after the discover of civil declare is filed. Part 252 of the Land Title Act, nevertheless, specifies that an proprietor might apply to discharge a certificates of pending litigation registered in opposition to title to their property if no step has been taken within the continuing for one 12 months.

In Parkbridge, the BC Courtroom of Attraction thought of an enchantment by the plaintiff and applicant, Parkbridge Life-style Communities Inc. of a choice of a chambers decide dismissing its utility to discharge the lien declare filed by the defendant common contractor, New West Customized Houses (Kelowna) Inc., in reference to a 42 dwelling improvement venture being undertaken in Kelowna. Parkbridge was the proprietor of the event venture and employed New West to behave as the final contractor for the venture. A dispute over development progress and fee arose, leading to New West submitting a declare of builders lien (the “Lien”) in opposition to title to the property. As contemplated by the Builders Lien Act, New West subsequently commenced litigation and triggered a certificates of pending litigation to be filed in opposition to the property.

Chambers Choice

After the Lien was filed, Parkbridge obtained an order for the discharge of the Lien beneath part 24 of the Builders Lien Act on safety of the face worth of the lien being made. After the part 24 discharge was obtained, numerous steps have been taken within the litigation, together with Parkbridge submitting a response to civil declare and counterclaim, and amendments to the counterclaim and New West’s discover of civil declare.

Previous to Parkbridge bringing the appliance for cancellation of builders lien, (heard in September 2020), the final step taken within the litigation was New West submitting an amended discover of civil declare on Might 23, 2019. In its utility, Parkbridge argued that the Builders Lien Act and the Land Title Act ought to be learn collectively to create a brand new deadline on lien claimants, such {that a} declare of lien will be extinguished if no step is taken within the continuing inside a 12 months, regardless of the litigation being commenced inside the time restrict prescribed by the Builders Lien Act.

The chambers decide dismissed the appliance, discovering that whereas the cancellation of a declare of lien pursuant to the Builders Lien Act might end result within the cancellation of a associated CPL, the inverse was not true, and Parkbridge couldn’t depend on part 252 of the Land Title Act and New West’s failure to advance the proceedings for over a interval of 1 12 months to have the Lien extinguished.

Choice of the Courtroom of Attraction

Parkbridge appealed this choice. The BC Courtroom of Attraction upheld the chambers decide’s choice, agreeing that the Land Title Act doesn’t present a foundation for extinguishing a builders lien declare the place the lien claimant did not advance the proceedings for a 12 months (or extra).

In making its choice, the Courtroom of Attraction highlighted the distinctions between a CPL and a builders lien declare. A builders lien declare is the mechanism by which a celebration asserts a declare to an curiosity in land, whereas a CPL solely offers discover {that a} declare to an curiosity in land is being alleged and to say precedence and in any other case restrict how the land could also be handled because the underlying declare is decided. Accordingly, whereas a celebration who loses a lien declare will lose a declare to an curiosity in land, a celebration who loses a CPL loses solely the mechanism to present discover of its alleged declare to an curiosity in land.

The Courtroom of Attraction additional commented that, if the legislature had supposed for a discharge of a CPL beneath the Land Title Act to end result within the extinguishing of a lien declare, it will have expressly offered for this within the Builders Lien Act. On account of its evaluation and consideration of the Builders Lien Act and the Land Title Act, the Courtroom of Attraction confirmed that the elemental flaw in Parkbridge’s place was that the CPL has been discharged from title to the property on the fee of safety on the time it introduced its utility to extinguish the Lien beneath part 252 of the Land Title Act. At the moment, there was no present CPL and the courtroom accordingly had no jurisdiction to make an order beneath the Land Title Act.

Takeaways and Objects to Think about

This choice of the Courtroom of Attraction confirms that events searching for reduction associated to a builders lien declare should fastidiously think about if that reduction is codified within the Builders Lien Act when assessing their technique. Though each the Land Title Act and the Builders Lien Act cope with expenses in opposition to land, our courts have acknowledged that the Builders Lien Act has been drafted to replicate a complete code that units out numerous reduction and cures out there to lien claimants and homeowners. Events to a lien declare dispute have to be cautious that they don’t conflate any treatment or proper out there beneath the Builders Lien Act with any treatment or proper out there beneath the Land Title Act.