Stewart McKelvey

MECHANICS' AND BUILDERS' LIENS IN ATLANTIC CANADA to preserve and then perfect the lien, otherwise it will be extinguished. In all jurisdictions, parties can contract out of the lien provisions, but it will not affect a non-party to the agreement. If you think you may need to lien a project, en- sure that you have as much information as possible, including the name of the contractor for whom the work, materials or services are provided, the owner's name, the location and description of the property, and the amount that is owing. You should also be able to provide a description of the nature of the materials or services provided or the scope of the work undertaken under the contract. As you might expect, the legislation in each prov- ince shares some common elements, but there are differences. Here are a few things to remember about each jurisdiction: NOVA SCOTIA'S BUILDERS' LIEN ACT A claim for lien in Nova Scotia must be filed with- in 60 days of the last work or supply of materials or services. The same deadline applies to all lien claimants. The lien must then be "perfected" by both commencing an action and registering a cer- tificate of pending litigation within 105 days of the completion of the work or the provision of services or materials. The claim for lien must be accompan- ied by a verifying affidavit, which can be sworn by an agent with personal knowledge. In Nova Sco- tia, the owner is required to hold back 10% of the contract price or each progress payment, and must maintain the holdback amounts until 60 days after the contract is substantially performed, at which time the holdback may be reduced to 2.5% until full completion. NEW BRUNSWICK'S MECHANICS' LIEN ACT For wages or services, the claim for lien must be filed within 30 days of completion of the work or 6 SUMMER 2011 DOING BUSINESS IN ATLANTIC CANADA services. A claim for lien for materials or under a contract or subcontract must be filed within 60 days of completion. The lien must be perfected within 90 days of being filed, by commencing an action and registering a certificate against the land. The holdback in New Brunswick is generally 15%, except 20% for projects under $15,000. The hold- back is to be maintained by the owner until 60 days after completion. PRINCE EDWARD ISLAND'S MECHANICS' LIEN ACT Liens in PEI must be filed within 60 days of doing the last work, after the last provision of services or ma- terials, or after completion or abandonment of the contract. Like New Brunswick, the lien must be per- fected within 90 days by commencing an action. The holdback is 15% on all contracts in excess of $15,000, and 20% for smaller contracts. The holdback is only released by the owner following 60 days from sub- stantial performance of the contract. NEWFOUNDLAND AND LABRADOR'S MECHANICS' LIEN ACT A lien, supported by an affidavit verifying the amount owing, must be filed within 30 days of the last work done or last supply of materials or services. The hold- back amount required to be retained is 10% of the value of the work done or materials or services sup- plied. The holdback may be released 30 days after completion or abandonment of the contract provided that no liens have been filed. Where a lien has been filed, the lien claimant must perfect it by commencing an action to enforce the lien and by registering a cer- tificate of pending litigation within 90 days of the last work done or last supply of materials or services. The above is a very general overview of the "nuts and bolts" of lien legislation in Atlantic Can- ada. While a mechanic's or builder's lien is a self- help remedy, the legislation can be complicated, so we encourage potential lien claimants to engage counsel in order to protect their rights and ensure compliance, whether as owners, general contract- ors, trades or suppliers. Please contact any of the members of Stewart McKelvey's Construction Law Practice Group and we would be happy to help you navigate your way through the steps and ensure that you or your client's interests are protected. Robert M. Dysart Moncton, NB 506.383.2230 rdysart@stewartmckelvey.com

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