Alberta, Canada Lien Law Summary

Prepared by:
Levy · von Beck & Associates, P.S.
600 University Street, Suite 3300
Seattle, WA 98101 (206) 626-5444
www.levy-law.com

The information contained in this document is an interpretive summary of the private and public works construction lien statutes and is subject to change without notice. Levy · von Beck & Associates, P.S. strongly recommends that the user seek legal counsel before relying on this document to confirm that the information is current and accurate. This document is provided as a courtesy and, as such, Levy · von Beck & Associates, P.S. accepts no liability in connection with reliance thereon or any loss sustained by anyone using or relying on the information contained herein. The intended use of this document is to provide a framework for understanding and dealing with the construction lien statutes.


QUESTIONS	PRIVATE WORKS
	[Builder’s Lien Act]
What work is covered?	“Improvements”, meaning anything
	constructed, erected, built, placed, dug or
	drilled, or intended to be constructed,
	erected, built, placed, dug or drilled, on or
	in land except a thing that is neither
	affixed to the land nor intended to be or
	become part of the land. Note, however,
	that there are no lien rights for a public
	highway or irrigation district.				[1,6,7]
Who may make a claim?	Anyone supplying labor or materials to the
	owner,	general		contractor		or	a
	subcontractor.		In addition, anyone who
	rents equipment to an owner, contractor or
	subcontractor has a lien for the reasonable
	and just rental of the equipment while it is
	used or is reasonably required to be
	available for the purpose of the work. [6]
What is the lien against?	The estate or interest of the owner in the
	land in respect of which the improvement
	is being made. A lien attaching to an
	estate or interest in mines and minerals
	also attaches to the minerals when severed
	from the land. If the person who owns the
	property in full is the person who
	requested the work on the mine, then the
	lien attaches to that person’s ownership
	interest in the mine and minerals, though
	not to the person’s interest				in	the rest	of

PUBLIC WORKS [Public works Act]

The construction, alteration, demolition, repair or maintenance of a public work. [14]

A person who provides labour, equipment, material or services used or reasonably required for use. [14]

The contract funds held by the Crown. [14, 15]

Who must give preliminary notice?

To whom is preliminary notice given?

When must preliminary notice be given?

Contents of preliminary notice?

How must preliminary notice be given?

Who must give final notice (notice of claim)?

To whom is final notice given?

the land. [6] Note that a lien of someone other than the contractor will be limited to the 10% retainage withheld plus the outstanding contract balance at the time the lien is filed. [18(3)]

All claimants supplying a project of a tenant, (or the project of one who only owns the property for their lifespan,) rather than an owner in fee simple, where the claimant wants the lien to attach to the owner’s interest in the property, as well as the tenant’s. The lien will attach to the owner’s interest unless, within 5 days after the owner receives the claimant’s notice, the owner notifies the claimant that the owner will not be responsible for the work or materials. [15]

The property owner or the owner’s agent.

Before the labor or materials are supplied. [per Don Goodfellow]

Notice of the work to be done or materials to be furnished. At a minimum, recommend including a description of the materials or services, identification of the project, the claimant’s name and address, and the identity of the claimant’s customer. [15] Proposed form attached at the end of this summary as Form A.

No specific provision, but recommend personal service, registered mail, or “delivery” to the address that is the address for service set out in the statement of lien. [15]

All claimants. [34(1)]

Land Titles Office. [34(1)] Note, however, that where lien attaches to an estate or interest in minerals held directly

No specific provision, though the Lieutenant Governor in Council may make orders providing for and requiring additional notices. [19]

No specific provision.

No specific provisions.

All claimants. [14]

The Minister or agent of the Crown responsible for the public work. [14]

					from the Crown in right of Alberta and the
					estate or interest is less than a fee simple
					estate, and is not registered under the Land
					Titles Act, the statement of lien must be
					registered with the Minister of Energy,
					instead of the Land Titles Office. [36(1)]
When	is	final		notice	MATERIALS, PERFORMANCE OF
given?					SERVICES, OR WAGES: A lien may be
					registered at any time after the materials
					are first furnished, or services or work are
					first performed, or but less than 45 days
					after the last materials, services or work
					are furnished, or the contract to furnish the
					materials, services or work is abandoned
					(within 90 days for improvements to an oil
					or gas well).
					LIENS FOR A SUBCONTRACTOR OR
					THE GENERAL CONTRACTOR: A lien
					may be registered at any time after the
					work begins or the first materials are
					furnished, but less than 45 days from the
					day that the contract or subcontract, as the
					case may be, is completed or abandoned
					(within 90 days for improvements to an oil
					or gas well).
					NOTE that these deadlines cannot be
					extended by doing, at a later date, repair
					work of something improperly done, or by
					doing something that was originally
					omitted. [41]
How	is	final		notice	Registered in the land titles office;
given?					Personal service, registered mail, or
					“delivery” to the address that is the address
					for service set out in the statement of lien.
					[67]
Contents		of	the	final	Registrar of Land Titles has a specific
notice?					form for registering a lien. The statutory
					requirements for a notice are as follows:
					-The name and residence of the lienholder.
					-The name and residence of the owner or
					alleged owner. (This item is not required
					where the lien arises in connection with an
					oil or gas well site.)
					-The name and residence of the person for
					whom the work was or is being done or the
					materials were or are being furnished.
					-The date when the work was completed or
					the last materials were furnished, or if the

HIGHWAY OR ROAD WORK: More than 30 but not later than 90 days after the last day on which the labour, equipment, material or services were provided. [14]

ALL OTHER PROJECTS: No process is specified, therefore it is recommended to follow the process for highway or road work.

HIGHWAY OR ROAD WORK: Registered mail. [14]

ALL OTHER PROJECTS: No process is specified, therefore it is recommended to follow the process for highway or road work.

HIGHWAY OR ROAD WORK: Set out the nature and amount of the claim in a form satisfactory to the Crown. [14]

ALL OTHER PROJECTS: Notice of the claimant’s claim. [14]

statement of lien is filed before the completion of the contract or subcontract, as the case may be, a statement that the work is not yet completed or the materials have not yet all been furnished.

-A short description of the work done or to be done or of the materials furnished or to be furnished.

-The sum claimed as due or to become due. (Note that the lien must be for more than $300. Note also that where a lien attaches to estates or interests in more than one lot, with a separate improvement on each lot, the claimant needs to apportion the claim as appropriate to each lot. [8]) -A description, sufficient for registration, of the land and estate or interest in the land to be charged. (Where the lien is against a railway, it is sufficient to describe the land as the land of the railway company.)

-An address for service of the lienholder in Alberta.

-The statement of lien must be signed by the lienholder or the lienholder's agent. -The statement of lien must be verified by an affidavit in the prescribed form of the lienholder or of the lienholder's agent or assignee. USE THE AFFIDAVIT IN FORM D IF THE LIEN IS SIGNED BY THE LIENHOLDER, AND THE AFFIDAVIT IN FORM E IF THE LIEN IS SIGNED BY SOMEONE OTHER THAN THE LIENHOLDER.

-When the statement of lien is made by a corporation, it must be verified by the affidavit of an officer or employee of the corporation or its agent.

-When the affidavit is made by a person other than the lienholder it may be made not only as to the facts within the personal knowledge of the deponent, but also as to the facts of which the deponent is informed, if the deponent gives the source of the deponent's information and states that the deponent believes the facts to be true. [34, 35]

FOR ALL LIENS REGISTERED WITH THE LAND TITLES OFFICE: See Form B.

FOR ALL LIENS REGISTERED WITH THE MINISTER OF ENERGY: See

			Form C.
			NOTE that where someone serves upon
			the lienholder a notice to prove the lien,
			the lienholder must, within 15 days, file in
			the office of the clerk of the court an
			affidavit providing detailed particulars of
			the lienholder's lien.		If the lienholder fails
			to comply, they will lose the lien. [48]
Time to start suit?			Within 180 days after the lien is registered.
			A lis pendens must also be filed within that
			time period. If, however, the owner or
			other affected person serves written notice
			on the lienholder to commence an action
			on the lien, the lienholder must start its
			action within 30 days of service, or lose
			the lien. Service is to be made by
			personal service, registered mail, or
			“delivery” to the address that is set out in
			the statement of lien. NOTE that if no trial
			has been held within 2 years from the date
			of the registration of the lis pendens, any
			interested party may apply to the court to
			have the lis pendens vacated and the lien
			discharged. [43, 45]
			NOTE that, after a lien is filed, if an
			owner,	mortgagee	contractor	or
			subcontractor gives notice to the person
			liable on the contract that the owner,
			mortgagee, etc. intends to make a payment
			on the lien, and receives no objection to
			the payment within 5 days of the notice,
			then the payment may be made. [29]
Are	attorney’s	fees	Yes, where the lien is for an amount
allowed?			grossly in excess of the amount due
			expected to become due, or where the
			claimant knows or ought reasonably to
			know that the person does not have a lien.
			[40]
How are claims ranked?			1. Costs of all those to whom the court
			awards costs.
			2. Up to six weeks wages of all those
			employees of the owner, contractor or
			subcontractor, who are claiming wages.
			3. Claims of lienholders other than the
			contractor. Pro rata, if necessary.
			4. Claims of the contractor. If laborers are
			owed more than 6 weeks wages, the wages
			are deducted from payments to their

No specific time period is set out. Note that after receiving a claim, the Crown may give notice to the claimant and the surety of its intent to pay the claimant the amount it considers proper, and deduct the amount paid from any funds due and payable to the contractor. The Crown can compromise a disputed liability, and the contractor and surety cannot challenge it. If the funds held are insufficient, the Crown turns to the surety for reimbursement. In the alternative, the Crown can deposit the funds into court and allow the court to allocate and pay the funds. [15]

No specific provision.

Claimant has priority over contractor or others. [15]

				employer. [61]
				NOTE that liens have priority over all
				judgments,	executions,		attachments,		etc.
				that are issued or made after the lien arises;
				the lien arises when the first work is begun
				or the first material is furnished.					A
				registered	mortgage		securing	funds
				advanced prior to the registration of the
				statement of lien will take priority over the
				lien. [10, 11]
Can	the	claim	be	No. [5]					No specific provision.
waived?
Are claims assignable?				Yes, in writing. [30]					No specific provision.
Special notes.				An owner is required to withhold 10%					None.
				retainage on a project. Once the claimant
				has substantially completed his or her
				portion of the contract, the claimant can
				give the owner a certificate of substantial
				performance.		Forty-five days (ninety for
				an oil or gas well project) after the
				certificate has been given, if no lien is
				registered, the owner must release the
				portion of retainage withheld in connection
				with the relevant contract or subcontract.
				[21]
				A lien claimant may make a written
				request to see the general contract or
				subcontract through which the claimant’s
				claim arises, and if the owner or contractor
				fails to comply or falsely states the terms
				within 6 days after the request, the owner,
				contractor, etc. will be liable for the
				claimant’s losses. The claimant may
				petition the court to compel enforcement
				of this right. [33]
				A claimant who registers a lien grossly in
				excess of the amount due or to become
				due, or when the person knows or should
				know they are not entitled to a lien, is
				liable for the costs and damages incurred
				as a result of the lien, unless the claimant
				can establish good faith. [40]

The information contained in this document is an interpretive summary of the private and public works construction lien statutes and is subject to change without notice. Levy · von Beck & Associates strongly recommends that the user seek legal counsel before relying on this document to confirm that the information is current and accurate. This document is provided as a courtesy and, as such, Levy · von Beck & Associates, P.S. accepts no liability in connection with reliance thereon or any loss sustained by anyone using or relying on the information contained herein. The intended use of this document is to provide a framework for understanding and dealing with the construction lien statutes.