Duhaime's Law Dictionary


Lien Definition:

A property right which remains attached to an object that has been sold, but not totally paid for, until complete payment has been made.

Related Terms: Builders' Lien, Mechanic's Lien, Statutory Lien, Judicial Lien, Title, Mortgage

"Any charge of a payment of debt orduty upon either real or personal property.”

So wrote Justice Martin in the 1925 case Chassey v May, quoting from a definition which was initially crafted by Roger Whitaker in his 1812 treatise Treatise of the Law of Lien.

John Bouvier (1848) described a lien as:

"A hold or claim which one person has upon the property of another as a security for some debt or charge."

Or, as Justice Gow stated in Roynat Inc. v. Glen Lake Village Inn Ltd.:

"The word lien means that its holder has an interest in an item of property owned by another. The purpose of the lien is, generally, to secure payment of a debt owing the holder. The debt need not be owed by the owner of the item.

"If the genesis of the lien is a statute, its scope and extent is the statutory language. Unless that language specifically provides otherwise, the lien it confers is construed as creating a charge on and interest in the item to which the lien. As long as the item exists and the lien exists, the lien attaches to the item...."

The terms of the lien, either from statute or contractually, may involve possession of the object until the debt is paid or it may be registered against the object (especially if the charged object is real property).

Ultimately, a lien can be enforced by a court sale of the property to which it attached and then the debt is paid off from the proceeds of the sale.

In Possessory Liens in English Law (1917), the leaned author used these words:

"The word is derived directly from the French lien, and further back from the Latin ligamen, which signifies 'a tie' or 'something binding'. As will be seen, the right in its fullest and widest application means a charge upon property - that is to say, something which is binding upon it....

"Perhaps the widest and most satisfactory definition is that adopted by Whitaker in his Treatise of the Law of Lien, published in 1812 -- namely, 'Any charge of a payment of debt or duty upon either real or personal property.' This is lien in its most extensive sense....

"A lien, therefore, is any charge of a payment of debt or duty upon either real or personal property, whilst a possessory lien is "a right in one man to retain that which is in his possession belonging to another, till certain demands of him, the person in possession, are satisfied."

REFERENCES:

  • Chassey v. May (No. 2), 35 B.C.R. 113 (1925)
  • Hall, L. E., Possessory Liens in English Law (London: Sweet & Maxwell, 1917)
  • Roynat Inc. v. Glen Lake Village Inn Ltd. 11 BCLR 2d 39 (1986)
  • Whitaker, Roger, A Treatise of the Law Relative to the Rights of Lien and Stoppage In Transitu (London: W. Clarke & Sons, 1812)

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