Certificate of pending litigation

A lien claimant who files a court action to proceed with proving its entitlement to a lien must also file a certificate of pending litigation in the appropriate land title registry:
 
If a claim of lien has been filed, an action to enforce the claim of lien must be commenced and, unless the claim of lien has been removed or cancelled under section 23 or 24, a certificate of pending litigation in respect of the action must be registered, not later than one year from the date of its filing, in the land title office or gold commissioner's office in which the claim has been filed.
(Builders Lien Act, s. 33(1)).
 
As noted in s. 33(1) quoted above, the certificate of pending litigation is to be filed not later than one year from the date the lien was filed i.e. the one year limitation period that applies to filing the court action to perfect the claim of lien also applies to the filing of a  certificate of pending litigation. Similarly, where a 21 day notice has been issued a certificate of pending litigation must, along with the court action, be filed within the 21 day period that applies under the 21 day notice.
 
Failure to file a certificate of pending litigation within the applicable time period results in lien being extinguished:  
 
[T]he Plaintiff did not register a certificate of pending litigation in the applicable Land Title Office within the one year period stipulated by s. 33(1) of the Act, with the result that its lien against the land in question has been extinguished pursuant to s. 33(5).
(Shimco Metal Erectors Ltd. v. Design Steel Constructors Ltd., 2002 BCSC 238 a para. 1).
 
Similarly when a 21 day notice is issued:
 
The plaintiff filed a claim of builders' lien on October 25, 2012 (the "Lien") and on January 18, 2013, West Railway mailed a notice to commence an action pursuant to s. 33 of the Builders Lien Act, S.B.C. 1997, c. 45 (the "Act").
 
The plaintiff commenced this action on February 5, 2013, but failed to file a certificate of pending litigation within the required time, as required by the Act.  As a result, the Lien was extinguished and was cancelled in early March 2013.
 
(Sabihi v. Dr. Mansur Roy Inc., 2013 BCSC 1571 at para. 12 and 13).
 
Preparing and filing a certificate of pending litigation is not a simple as filing a lien and lien claimants should obtain legal advice if they are to proceed with a court action and certificate of pending litigation to perfect their lien.

 

 

 

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