1.1 Exemption

CASE LAW

As part of a development project, a local government required the plaintiff to construct a road and install municipal services under a public highway. The defendant’s property was located adjacent to the highway. A small portion of the defendant’s property was required for the road allowance and, accordingly, the local government obtained a statutory right of way over the defendant’s property. The defendant intended to build single family homes on its property and hence benefited from the plaintiff’s construction work. The plaintiff filed a claim of lien against the defendant’s property for part of its construction costs. In this action, the defendant applied under s. 25(2) of the Builders Lien Act to cancel the lien claim. Under s. 1.1 of the Builders Lien Act, public highways are exempt from lien claims. The court found that s. 1.1 showed a clear intention to limit the meaning of “highway” in the Builders Lien Act to a roadway created by methods set out expressly in s. 1 of the Transportation Act. By each of these methods, private ownership was extinguished in favour of the Crown. As land within the statutory right of way did not become a highway by any of these methods, it was not a highway within the meaning of the exemption under s. 1.1 of the Builders Lien Act. The granting of the right of way did not transfer ownership of the land to the local government as would have been the case if the land had been expropriated or dedicated as a public highway. Title to the land within the statutory right of way remained with the defendant. Moreover, there remained in the land title office a single certificate of indefeasible title in respect of all of the defendant’s property, including the portion within the statutory right of way. The court held that, as long as the plaintiff’s work was an integral and necessary part of the improvement to the defendant’s property, the fact that a part or even a majority of the improvement was located beyond the defendant’s property and exempt from the provisions of the Builders Lien Act was not fatal to the plaintiff’s claim of lien in regard to work done on the defendant’s property. The court upheld the plaintiff’s right to file and register the claim of lien (Sandhill Development Ltd. v. Green Valley Developments Ltd., 2008 BCSC 1646).