87 Builders Liens Against Strata Lots In Phased Strata Plans

CASE LAW

Lien Filed before Declaration of Phased Strata Plan

Section 87 of the Strata Property Act is similar to s. 88 of the Condominium Act, in that a claim of builders lien may only be filed against strata lots in the phase in which the materials were supplied or the work was done. The following case, decided under the Condominium Act, clarifies this principle.

The first defendant owned a single parcel of land on which it intended to develop condominiums. The plaintiffs supplied lumber and other building materials before the first defendant filed the required declaration under the Condominium Act, declaring its intention to create a strata plan by phased development. Phase one contained the lumber and materials. Phase two consisted of raw land yet to be developed. Subsequently, the first defendant transferred the phase two lands to the second defendant who applied, unsuccessfully, to cancel liens against the phase two lands. Where liens are filed against a single parcel of land before the owner has filed a declaration of intention to create a strata plan by phased development, or where the lien rights have almost totally accrued before the filing of the declaration, s. 88 of the Condominium Act does not defeat the validity of lien rights against the whole parcel. Where the required declaration is filed part way through the work, the plaintiff is entitled to at least a lien on the single parcel for the work completed to the time of phasing (Aplin & Martin Consultants Ltd. v. Kwee Timber Resources Ltd., 1992 CanLII 563 (BC SC)).