Also known as construction lien or mechanic's lien.
In the late 1800s, when builders' liens were becoming in vogue, manual or skilled labourers were commonly known as mechanics. With the advent of the automobile, the term became closely associated with vehicle repair; Thus, the eventual preference for the term builders' lien.
Six Canadian jurisdictions entitle their legislation "builders' lien"; four call it by the historic name of mechanic lien, and Ontario, in its statute, uses the name construction lien.
Builer liens are a creature of statute; not known to the common law or equity, as was stated in Re Pine Valley by Justice Garson of British Columbia's Supreme Court:
"At common law, there were no builders’ liens. It is the statute that creates the liens and the enforcement rights....
"The statute is an entire code established by legislation. Every other lien claimant must file.
"Registration is a key component of the Builders Lien Act; otherwise parties cannot assert their status."
Mechanic liens, more recently builders' liens, were created by legislatures as statutory remedies to provide some measure of security to those who provided material or labour in the construction of real property and, once unpaid, found that the common law offered them only the expsnsive and lengthy contract and debt causes of action against the property they improved (historians will note that the advent of mechanic lien legislation occurred just as society was developing into an urban society, for which construction work was essential).
As described in the Builders Lien Practice Manual:
"A concrete supplier cannot chip out its concrete from a job site and return it to the mixer truck, and a (drywall) supplier cannot pull out board that has been cut, mudded, sanded and painted.
Builders liens have a long history in the civil law dating back to Roman law.
The first builders lien statute was that of Maryland in 1791, with Pennsylvania following suit in 1803.
The Canadian provinces of Manitoba and Ontario enacted their legislation in 1873 and they are now a common feature of the statute books of North America.
REFERENCES:
- Bristow, D. and others, Construction Builders' and Mechanics' Liens in Canada (Toronto: Thomson-Carswell, 2005).
- Builders' Lien Act, Revised Statutes of Alberta 2000 Chapter B-7
- Construction Lien Act, Revised Statutes of Ontario 1990 Chapter C-30
- Duhaime, Lloyd, Legal Definition of Mechanic's Lien
- Mechanics' Lien Act, Revised Statutes of New Brunswick 1973 Chapter M-6
- Owen, D., Editor, British Columbia Builders Liens Practice Manual (Vancoiuver: Continuing Legal Education Society, 2008), page 1-5.
- Re Pine Valley Mining Corporation 2007 BCSC 812