In previous blog posts, we examined construction liens and the process of registering liens. In this post, we’ll look at how you preserve a lien and then enforce a lien if it becomes necessary.
Preserving A Lien
A lien will expire unless
- A Statement of Claim is issued to enforce the lien, and
- A lis pendens (a certificate the court issues to confirm a Statement of Claim has been issued) is registered on the title of the land within 180 days of the lien’s registration
If another lien claimant starts an action claiming from the same lien fund, you do not have to file another Statement of Claim with the court. You must register your lis pendens on the title of the land tom preserve your lien.
Enforcing A Lien
You must obtain a court order stating that the lien is valid and that you are owed the money for the underlying debt to enforce the lien. The application can be made in one of two ways:
- Summary Procedure. You can use Affidavit evidence to plead your case instead of going to trial with live witnesses
- Trial. Trials happen if a lien dispute revolves around contractual interpretation or otherwise is too complicated to be resolved without actual testimony and cross-examination
You can resolve a lien dispute through negotiations as well. This is the usual practice if the facts are clear and you and the other party understand your lien rights. After reaching agreement, the two parties may go to court by mutual consent for an order to put their agreement into effect.
The court may order the lands under your lien be foreclosed after it finds a claim to be valid. The monies from the foreclosure will pay off the debt you secured with your lien. This almost never happens. The lien is usually discharged from the affected land, while you receive another type of security for your debt.
Consult an experienced construction law lawyer whenever you seek to enforce a lien. They can guide you as to the best way to do this.