Bill 39 (Legislature 4, Session 1)

L4 S1 9728

Alberta — Bills

BILL No.3 JOf 1918.

An Act to create Liens in favour of Mechanics and Others. (Assented to , 1918.) HIS MAJESTY, by antI with the advice and consent of the Legislative Assembly of the Province of Alberta, enacts as follows: 1. This Act may be cited as " The Mechanics' Lien

Short title Act, 1918." 2. In this Act, unless the context otherwise requires-

Interpretation (a) "Improvement," without restricting its general and Improvement ordinary meaning, shall include every kind of thing erected or placed, and every kind of work done, upon, in or under land and that although as for instance in the case of a mine or a quarry it may be supposed ultimately to diminish the value of the land; and every alteration or repair of an improvement; and an improvement though not made upon, in or under the land sought to be charged with a lien under this Act, if made upon, in or under land immed- iately adjacent thereto and if the improvement is made directly and primarily for the benefit thereof; (b) "The land" with reference to the property to which The land a lien is to attach means the land upon, in or under which the improvement is made together with the land, premises and appurtenances thereto used and enjoyed therewith and with reference to the land upon, in or under which an improvement is made includes the land immediately ad jacent to the land upon, in or under whirh the improvement is made if the improvement is made directly and primarily for the benefit of the latter; (c) "Contractor" means any person who has been Contraetor engaged directly by the owner to make the whole or any part of an improvement or to supply all or any part of the materials for the improvement or to furnish all or any part of the apparatus to be used in making the improve- ment or to supply all or some of the workmen to be engaged in making the improvement; (d) "Sub-contractor" means any person who has made Sub-contractor any such engagement as in the last preceding clause is described not directly with the owner but with a con- tractor or with another sub-contractor; (e) "Owner" includes any person to wh ose estate or Own .. r interest in the land it is declared, by this Act, liens under this Act shall attach; (f) "Apparatus" means any machinery, vehicle or ApparatuR implements, together with the means of operating them, whether animals or mechanical contrivance; (g) "Materials" means any kind of moveable property yfaterialR intended to be worked into and to form part of the improve- ment and shall be deemed to have been "supplied" for an improvement if they are upon the land or upon any other land used or intended to be used as a place of deposit fo), materials to be used for the improvement;

2 (h) "Workman" includes: Workmen 1. An architect; 2. A superintcndcnt of the work; 3.

Labourers; (i) "Labourer" includes artizans, and mechanics (but Labourer not an architect or superintendent) whether or not they are to be paid by time or by the piece and whether or not as incidental to their work they supply and use their own draught animals, implements or tools, as for instance in the case of teamsters supplying teams; (j) "Wages" includes money owing to labourers for Walles work done by them, including remuneration for the use of draught animals, implements or tools used as incidental to their work, whether the work is done by time or by the piece; (k) "Contract price" means the cost of the improve- C,?ntract ment as fixed between the owner and the contractor or pnce where there are separate engagements for parts of the improvement the total of the several sums so fixed.

If the amount of the cost so fixed is increased or reduced by reason of alterations or partial non-fulfilment of the terms of the contract then the "contract price" shall mean the amount to which it has been so increased or reduced; (l) " Court" means the' Supreme Court of Alberta; and Court " judge" means a judge thereof, and shall include a Master if so declared by Rule of Court i (m) "Lien" means a lien by virtue of this Act; Lien (n) "Lien claimant" means a person claiming to be Lien claimant entitled to a lien by virtue of this Act; (0) "Claim of lien" includes the affidavit of verification. Claim of lien 3.

Every person who, as a contractor or sub-contractor, or Lien declared as a person who furnishes apparatus or supplies materials or as a workman, contributes to the making of an im provement to land shall be entitled to a lien upon the improvement and upon the land to the extent and subject to the conditions and restriction in this Act provided. 4. IIi order to preserve his lien the lien claimant shall Fil\Dtg at,!d • . regIS rn.

IOn file a claim of lIen in the office of the clerk of the Supreme r-f claid of Court for the judicial district in which the land is situate and sl:r~~~ of deliver to him a duplicate or copy thereof, paying to the notIce clerk the proper fees for filing the claim, certifying the duplicate or copy, and transmitting the certified duplicate or copy to the registrar and the registration fee.

(2) Upon the filing of the claim of lien it shall be the duty of the olerk instantly to make a minute of the claim of lien in a book to be kept for that purpose stating the name of the claimant, the amount of the claim, the land, the name of the alleged owner of the land and the names of any other persons sought to be made personally liable for the claim.

(3) It shall be the further duty of the clerk instantly to deliver or to transmit by way of a prepaid registered letter to the registrar of the land titles registration district within which the land is situated the certified duplicate or copy of the claim of lien for registration together with the proper registration fee; and thereupon the registrar shall register the same against the land described therein.

(4) Notice of the filing of the claim of lien shall be served upon the owner of the land or his architect or superintendent and such service may be effected in any manner in which by the Rules of Court a statement of claim is authorized to be served, or by way of a prepaid registered letter addressed to the owner, architect or superintendent at his place of business or residence and upon request and the payment of the proper postage the clerk shall instantly prepare and mail such notice, but omission to serve notice under this clause shall not invali date the lien.

(5) The claim of lien shall be verified by affidavit.

(6) The claim of lien may be in the form A, the form of affidavit of verification in the form B and the notice of filing in the form C of the

schedule to this Act or to the like effect.

(7) The affidavit of verification may be made by the claimant or by any person on his behalf who states in the affidavit that he has a personal knowledge of the matters deposed to.

(8) Every clerk of the court shall be supplied with printed forms in blank of claims of liens, affidavits of verification and notices of filing, which shall be suppl~ed by him to everyone requesting the same and desiring to file a lien. 5.

A claim of lien by a contractor or sub-contractor Time for may be filed before or during the making of the improve- filing lien ment or within thirty days of its completion, unless the contract or the sub-contract as the case may be provides for a final certificate of completion by an architect, super intendent or other person and then within fifteen days of the issue of the final certificate or of the refusal of the architect, superintendent or other person . to issue such certificate.

(2) A claim of lien by a person who has furnished appara tus . or supplied materials may be filed before or during the time the apparatus is being used or the materials supplied or within forty-five days after the apparatus has ceased to be used or the last of the materials has been supplied for the improvement.

(3) A claim of lien by a workman may be filed at any time during the performance of his services or within forty-five days after the completion of his services in con nection with the improvement; provided th~t if the work man shall have continued in the employ, but been engaged in other work for the same owner, contractor or sub-con tractor, the period of 45 days shall commence at the termin ation of his employment or the completion of the work, whichever shall first occur. 6.

Every lien, a claim for which has not been filed within the time fixed by the last preceding section, shall absolutely cease to exist. 7. Liens shall attach- To what 1. To the improvement· extent lien , attache. 2. To the estate or interest in the land of any person- (

a) At whose instance the improvement was set on foot; or (

b) With whose knowledge or consent express or implied the improvement was set on foot; or (

c) From whom the person at whose instance the improvement was set on foot derives his estate or interest if the former might reasonably expect

4 that an improvement of the character of that being carried on might be made by the latter or any successor in title unless and until he has given notice to the lien claimant that he will not be responsible for the cost of the improve ment.

(2) Liens shall also attach to the estate or interest of any person who has become aware that the improvement is being carried on and who has failed to give the lien claimant notice that he will not he responsible for the cost of the improvement. If he has given such notice within such time as under the circumstances the court or judge shall find to be reasonably prompt, the lien of the lien claimant shall not attach to his estate or interest to any extent.

If he has given such notice after such time the lien of the lien claimant shall attach to his estate or interest to the extent of such portion of the claim as has been incurred between the time he became aware the improvement was being carried on and the time he gave the notice.

(3) A general notice stating in effect that the person giving the same will not be responsible for the cost of the improvement posted and maintained for a period of at least six hours during the daytime of any working day in a conspicuous place upon the improvement or upon land in the immediate proximity of the improvement shall be deemed to be a notice to all present or future lien claimants.

(4) No lien shall attach to the estate or interest of any person other than the person at whose instance or with whose knowledge or consent the improvement was set on foot in favour of any lien claimant who knew or had reason to believe that the person whose estate or interest he seeks to charge did not expect that his estate or interest would be sought to be charged with such lien.

(5) III the event of the improvement only or the improve ment and some partial estate or interest only in the land being subject to liens and of a sale becoming necessary to realize the liens and of a sufficient sum not being likely to be realized by the sale of the improvement only or of the improvement and such partial estate or interest only the court or judge may direct a sale of the land with the improvement thereon and shall ascertain and fix the value of the estates or interests in the land not subject to the liens.

(6) Where a leasehold interest is sold by direction of the court or judge the purchaser shall be deemed to be an assignee of the lease with the leave in writing of the lessor or his assigns.

(7) If an improvement be made by a husband upon the land of his wife he shall be deemed conclusively to be the agent of his wife to make the improvement and vice versa subject to the provisions of subsections 2 and 4 of this section. 8. Where an improvement is made upon, in or under Mortgaged land subject to a mortgage the lien shall attach to the land land, in priority to the mortgage only to the extent to which the land has been increased in value by the improve- ment unless the improvement has been set on foot or is being carried on at the written request of the mortgagee. If such increased value is not agreed upon it shall be fixed

5 by a judge in the course of the proceedings to realize the liens as the price at which in his opinion the land, at the time being, could if the improvement had not been made be sold for cash at a sale not 9, forced sale and the judge shall direct the land to be sold subject to an upset price of the amount so agreed or fixed and the amount realized in excess of the upset price shall be subject to the liens. (2) "Mortgage" in this

section shall include any lien charge or incumbrance which is a specific charge upon the land.

(3) The amount secured by the mortgage shall as against liens be deemed to be the amount actually owing thereon at the time when the mortgagee first had knowledge that the improvement had been set on foot or was being carried on, together with the amount of any further advances, if any, made thereon by the mortgagee, which shall have been applied either by mortgagor or the mortgagee by way of payment on account of the cost of the improve ment within the restrictions imposed on the owner by

section 15.

(4) It shall not be necessary to make a prior mortgagee a party to the proceedings to realize liens unless priority over the mortgage is sought and then only at the time when it is proposed to fix the increased value. 9. No agreement shall prevent a lien from attachingAgreem.ent under this Act in favour of any person not a party to the for no hen agreement. 10.

The taking of security, or conditional payment or Security, ete. a cheque, order or promissory. note which has been dis honoured or the extending of the time for payment or the recovery of judgment for a claim in respect of which a person is entitled to a lien shall not prejudice his lien. 11. No assignment by a contractor or sub-contractor of Assignment any moneys owing or to become owing under his contract shall ,prejudice any lien under this Act. 12.

No agreement that the contract price shall be paid ~o":~aet price in whole or in part otherwise than in money shall prejudice the lien of any person entitled to a lien under this Act who is not a party thereto.

(2) If the contract price is payable in whole or in part otherwise than in money the contract price for the pur poses of this Act shall be deemed to be the sum of the part, if any, payable in money and the value of the other con sideration which in case of dispute shall be ascertained by the court or a judge. 13. N 0 d~du.ction from th.e contract price shall be ~llowed ;,}i';o~;:r~~t to the prejUdICe of any hen except such deductIOns as price shall be fairly allowed by reason of alterations in the im provement or the partial non-fulfilment of the terms thereof. 14.

Excep~ in respect of a c~aim by a labourer for not ~:'::~ner'. more than SIX weeks' wages, hens shall not attach so as liability, to make the total amount payable by the owner or charge- able upon his estate or interest in the land more than, in the case of completion, the contract price or, in the

6 case of non-completion, the total amount which for the purposes of this Act it shall be found the owner ought to pay. 15 All payments made by the owner to any contractor I'llymontll by • J. , tho owner sub-contractor, supplier of apparatus or furnisher of materials or workman on account of the improvement, shall be deducted from the contract price or the total amount which for the purposes of this Act it shall be found the owner ought to pay, as the case may be, except to the extent, if any, that any lien has been prejudiced by reason of any payment or part thereof having been made so as to increase the total amount paid beyond what represents a fair and just proportion of the contract price having regard to the progress of the improvement and except as against any lien of the filing of which the owner had notice at the time of payment. 16.

No partial failure of completion of the improvement, Breaoh of though sufficient to entitle the owner to refuse to make contraot any payment or further payment on account of the contract price to a contractor shall be effective to prevent the enforce- ment of liens to the extent of the fair value of the improve- ment in its incomplete state. 17.

In calculating the amount of the contract price or Penalties the amount remaining owing in respect thereof for the purposes of this Act no deduction therefrom shall be allowed of sums by way of penalties or liquidated damages or unascertained damages for delay in completion. 18. If any improvement is wholly or partially destroyed Insurance] by fire, any insurance moneys payable in respect thereof moneys shall be subject to the same liens as the improvement. 19. A lien claimant may assign his lien by any appropriate Assignment form of writing. 20.

If a person entitled to a lien dies his lien shall pass Succession to his executor or administrator. 21. If for any reason a person entitled to a lien is unable Incapacity to file a lien or to give notice of the filing thereof any other person may by leave of a judge do so on his behalf. 22.

A substantial compliance only with the provisions of ~~~~t;t:!: this Act relating; to the form, contents and registration of the claim of lien and the notice of filing thereof shall be required and where forms are provided it is intended that they shall be modified so as to meet the circumstances of the case and no lien shall be invalidated by reason of defects either of form or substance in the claim of lien the notice of filing or the filing or registration unless in the opinion of the court or judge adjudicating thereon the owner, contractor, sub-contractor or mortgagee or other person is prejudiced thereby and then only to the extent to which he is prejudiced; and the court or a judge may permit a lien to be amended. 23.

A claim of lien may comprise the claims of any CO!llbininK number of lien claimants and any number of properties claims belonging to the same owner.

7 24. A lien may be discharged by the registration of ~i~~harKe a release thereof in writing signed by the lien claimant 0 len or by his agent duly authorized in writing so to do or by the person who filed the claim of lien on his behalf.

(2) The court or judge may vacate the registration of a lien upon security being given to the lien claimant or upon payment into court of a sum sufficient to answer the claim of lien and costs.

(3) The court or judge may direct the cancellation of the registration of a lien upon proof that the claim has been satisfied or the lien released or that proceedings to enforce the lien have been unreasonably delayed. 25. The court or a judge may make an order for the Enforcement enforcement of any duty by this Act imposed upon any of duty person. 26. Every proceeding in relation to or arising out of a Proceiting. claim of lien and every other application to the court or genera y a judge authorized by· this Act, unless ex parte, shall be commenced by way of originating notice. 27.

Proceedings for the enforcement of liens shall unless ~~':ro:;;~~go a judge otherwise orders be as follows: liens 1. The notice of motion may be given by one or more registered lien claimants; 2. The notice shall be filed in the office of the clerk of the court for the district in which the land lies; 3. On the notice being filed the clerk shall issue a certi ficate of lis pendens under the seal of the court which shall be registered in the proper land titles office; 4.

The notice shall be served upon all persons who appear by the register of the land titles office to have any interest in or charge upon the land, including all other registered lien claimants; 5. The notice shall be returnable in chambers; 6. On the hearing of the motion, the judge shall as far as appears convenient determine all matters of law and fact in a

summary manner or by way of reference but may if he deems it expedient direct that any issue of fact shall be tried in the usual way before a judge without a jury; 7.

After proceedings have been commenced for the enforcement of any lien no new proceedings shall be commenced for the enforcement of any other lien in respect of the same improvement or any part thereof but other lien claimants who have not already been brought in may at any time and from time to time apply by motion in the proceedings already commenced to be added as parties thereto upon notice to the party having the conduct thereof and the judge, after notice to any other party or parties, if he shall think proper, shall proceed to deal with the claim and so far as proper vary any order already made, accordingly; 8.

The judge shall determine the rights and priorities of all registered lien claimants and of all others interested in the land and shall fix a time for payment of the lien claims or and if he deems it expedient of any other charges upon the land and direct that in default of payment the land shall be sold with the approbation of a judge and

8 may make an order for payment by any· person of any moneys he is ])('l'sol1ally lin.hle to pny nnd nn order for delivery of possession to the purchaser; 9. The judge may direct that an affidavit verifying the particulars of the claim upon which any lien is founded made by a person who swears that he has a personal know ledge of the matters deposed to shall be prima facie proof of the claim. 28. Unless otherwise ordered by the judge 110 person Costs shall be pel"RoJlnJly liable for costs except the persons personally liable for the debt in respect of which the claims of lien arc made. 29.

In a proper case the proceedings may be transferred Transfer to the District Court. 30 All moneys realized by proceedings under this Act Distribution • •• of moneys shall be dIstrIbuted and applied in the following order: First: The costs of all the lien-claimants of and inci dental to the proceedings and of filing and proving their claims; Second: Six weeks' wages (if so much be owing) of all labourers employed by the owner, contractor or sub-contractor; Third: The wages beyond six weeks' wages of all labourers employed by the owner, contractor or sub-contractor to the extent that there is not sufficient to satisfy such wages out of the amount ci.y3,tributable to the owner, contractor or sub contractor who is the labourers' debtor; Fourth: The amounts owing to persons who have furnished apparatus; Fifth: The amounts owing to persons who supplied materials; Sixth: The amounts owing to the sub-contractor and other persons engaged by the owner or con tractor; Seventh: The amount owing to the contractor; Eighth: The amounts owing to the architect or super intendent.

(2) The lien-claimants of each class shall rank pro rata for their several amounts.

(3) Any balance shall be paid to the owner or other person entitled thereto; provided, however, that when any labourer has a lien for more than six weeks' wages the amount beyond six weeks' wages shall be deducted from the amount distributable to the owner, contractor or sub-contractor as the case may be who is his debtor. 31. During the continuance of a lien no portion of the Removal materials to which it attaches shall be removed to the of material. prejudice of the lien and any actual or anticipated attempt so to do may be restrained by a judge. 32. When any materials are supplied for any improve- Exemption ment they shall be exempt from seizure under execution or

9 other process to enforce payment of any moneys owing by the person supplying them, other than for the purchase price thereof. 33.

When any material has been brought upon the land ~!a:~~~!d or upon any land adjacent thereto used or intended to be used as a place of deposit for materials to be used in the making of the improvement, the person who has supplied the materials shall, notwithstanding the delivery thereof, have a lien thereon for the unpaid price thereof until the materials are worked into the improvement, in priority to any other lien under this Act. 34. ~y perso:r: who has or has agreed to contribute to ~r~!e'.:';~~r the makmg of an Improvement as a sub-contractor, a person or contractor furnishing apparatus or supplying materials or as a work- man may demand of the owner a statement showing the total contract price and the balance remaining unpaid for the time being and of 'the contractor a similar statement together with a statement showing the amount which he has estimated for the cost of the portion of the improve- ment in respect of which the applicant has or has agreed to contribute.

(2) The owner and the contractor shall furnish such statements promptly after such demand.

(3) If the owner or contractor fail to do so, a judge may order such statements to be furnished.

(4) If any such statement be false in any respect the owner or contractor as the case may be shall be liable to the person to whom they are furnished for any damages he sustains by reason of their being incorrect.

(5) Any person who has engaged himself to contribute to the making of an improvement shall be excused from the performance or further performance of his engagement and may recover on a quantum valebat if it appears that there is not or will not be, having regard to other claims a sufficient fund to satisfy a claim of lien by him, unless the person who is personally liable to him shall give security for the payment of the amount which will ultimately be payable.

(6) Any dispute arising under the foregoing clause may be settled by a judge. 35.

No contr.actor or sub-contractor shall be .entitled to ~ti!l:~trers' demand or receIve any payment on account of hIS contract, payrolls where his contract price exceeds $500, unless there shall have been posted up and maintained in a conspicuous place on the improvement from 12 noon to 1 p.m. of the first legal day after the last pay-day a receipted payroll or copy thereof containing the names of all labourers who have done work for him upon the improvement the amounts which were due and a receipt in full from each labourer and no payment made without the delivery of such payroll shall be valid for the purpose of defeating or diminishing the lien of any labourer who has worked on the improve- ment; provided that the failure to comply with this pro- vision shall not prejudice the lien of the contractor or sub-contractor in default, but the court or judge may order a stay of proceedings until satisfactory proof be made that all labourers employed by the contractor or sub-contractor have been paid in full and may limit the time for the

10 furnishing of such proof and in default of the furnishing of such proof may disallow in whole or in part the 1ien of the contractor or sub-contractor.

(2) The original of the receipted payroll shall be delivered to the owner or his agent.

(3) The payroll may be in form D of the

schedule to this Act. 36. Nothing in this Act contained shall be construed so Application as to affect any claim of lien filed prior to this Act coming into force; and all such claims may be enforced as though this Act had not been passed. 37. The Mechanics' Lien Act (Chapter 21 of 1906), Hepeal except

section 34 (liens for improvement of chattels) and sections 37,38 and 39 (woodmen'S liens), is hereby repealed. SCHEDULE. FORM A. CLAIM OF LIEN. A.B. (1), of. ............. (2) . . . . .. (and if so as (

I) Na,!,e of . d . . feD) I' claImant. aSSIgnee or execut<?r or. a mmIstrator 0 • • • c aImS,

(2) Residence under The Mechamcs' Lten Act, 1918, a hen upon the and. land described below and a certain improvement made busmess. thereon (or directly and primarily for the benefit thereof) (3) ~r~~i~~nl<. being .......... (3) .......... to the cost of which the well. t claimant has contributed.

The name of the person who ) :wer. e c. it is claimed is the owner of the land within the meaning (4 o/(~~t~~b:- of the Act is. . . . . . . . . ... . f~;~~~~or) The claiinant claims as . (4).. . . . . . . .. .......... :!:'~~ri~ls Buppliedi · ......•.•••....•. ., .. ....... ............••...•• or as a person who has supplied materials, · . . . . . . . • • • . . .. .. .... ...•... .. . . . . etc. The kind of. ....... (5) .. . ...... was ..................

(5) Work done or rnaterial~ • . . . . . . • . . . . . . . . . . . . . . • •. ...•..••••...... .. supplied. The last date upon which the claimant ....... (6) .......

(6) Did any was. . . .. .................................. ........ wor\°rl The amount which is owing to the claimant in respect :~~p Ie • • materialR, of which he claims a hen IS $. . . . . . . . . . . . . . . . . . . . . . . . . . etc. The description of the land sought to be charged by the

(7) A sufficient 1·· (7) description len IS ... '. ..... .. .. ...... .. . . .. .... ...... for the purpos{'~ of . .......... •....... regis- Signature of. . . . . . . . .. . ............. . Claimant or person proposing to file claim on his behalf. tration.

11 FORM B. AFFIDAVIT OF VERIFICATION. I, A.B., the person proposing to file the foregoing claiII\ of lien make oath and say: ' (If a person other than the claimant), That I have a personal knowledge of the matters set forth in the said claim of lien; That the facts set forth in the said claim are true ttl the best of my knowledge and belief. Sworn to before me at l d~y ~i.·".·.·~~~~~).::: J ........................... . A J.P., Commr. or N.P. FORM C. NOTICE OF FILING CLAIM OF LIEN.

Take notice that .................................. . has filed a Mechanics' Lien claiming the sum of $ ....... . against the following land: ........................... . Dated at .. of. ..... Name De- scription ----- -----. R. Roe .. . this .............. day . .19 .... . (Si(lned) ...... 1 •••••••••••••••••• i FOl.{,M D. PAYROLL.

From 8th Jan., 19 Date to 15th Jan., 19 (inclusive) Received Amount of payment Total paid pay-No. days Rate Amount ment in full employed per day earned ---------- -----. ----- -- ---- Six days $3.50 $21.00 $21.00 12th R.Roe Jan .• 19 I hereby certify that the above statement is correct to the best of my knowledge and belief, and is made by me in compliance and in accordance with

section 35 of The Mechanics' Lien Act, on account of (my contract to, or employment by, as the case may be), (here insert brief de-:.; icription of the work) for (owner's name) up to the.. . .. .. . 19. . Dated this. . day of. . .. .. . ... 19 ... .. (Signed). . . . . .. .. . ............. . Contractor.

No. FIRST SESSION FOURTH LEGISLATl1RE 8 GEORGE V 1918 BILL

An Act to create Liens in favour of Mechanics and Others. Received and read the First time. Second time. Third time.. .. HON. MR. CROSS. EDMONTON: J. W. JEFFERY, KING'S PRINTER A.D 1918 Title: 1918 (4th, 1st) Bill 39,

An Act to create Liens in favour of Mechanics and Others

Document details

Collection	Alberta — Bills
Citation	L4 S1 9728
Type	bill
Volume / chapter	L4 S1 9728
Language	en
Format	json
Source	PROVINCIAL
Identifier	d24fb0c7b46aba0929bbcf18795426384d4d9a3f

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