Lien Searches in Saskatchewan

If you are purchasing property in Saskatchewan, it is wise to first conduct a search of the property you are buying to ensure you will obtain clear title to it. If you have hired a realtor or lawyer to help you, such as in the purchase of a home or commercial property, then they will take care of this and it is not normally your responsibility. However, there can be other situations where you need to be aware of this requirement. Keep in mind that the information below is far from complete. It alerts you to some issues and hopefull helps explain matters for you. However, there can be other situations not covered by this article. The best practise is to always ask yourself "Do I need to have someone search this for me before I give up my hard-earned money?"

Land Titles Searches

There are a few different types of searches that can be done at the land titles registry:

  • Title searches: For most purposes, what you see is what you get when you search a title. However, there are other claims that do not need to be registered. For example, lland is always subject to taxes owing to the municipality. It will be subject to certain types of unregistered easements. Utility easements are one example but there can be others.

  • Judgment Searches: If a creditor has a judgment against someone, they typically take register it at the Personal Property Registry and Land Titles. As of May 2012, judgments that are registered at land titles are generally found in the Judgment Registry. If registered properly, they can form a charge against goods and land. This used to be called a "writ of execution" but now a judgment has the same effect when it is properly registered. It will show up on a personal property registry search and if registered properly, it will show up on a land titles judgment registry search. If the name on the judgment registration is a 100% perfect match to the way a name is set out on title, it will be endorsed when a new title to land is issued in a debtor's name, but not on a title already registered in the debtor's name. If the registration of the name is close but not 100% identical to the way a name is set out on title, or if the debtor already owns the land, it will not appear on the title unless the creditor takes steps to specifically register it on title. The onus is generally on the creditor to do this if they want it to be registered on the title.

  • Instrument searches: If you search a title and want to know what a registration stands for ... such as an easement or a restrictive covenant ... you can search the interest register number of the document and get an image of it.

  • There are also many other searches that can be done at land titles, but they are more specialized searches. One example is searching for images of land titles plans rather than specific titles.

Muncipal Land Tax Searches

You can pay a fee to a municipality (city, town, village or RM) and they will tell you the legal description of a property, the amount of tax arrears if any, and what the current taxes are owing against a property. If you are the registered owner calling about your own property, they will likely give this information for free. In general, municipalities always have priority over everyone for unpaid taxes against land ... even innocent purchasers or mortgage lenders.

Personal Property Registry Searches

If you purchase goods that are subject to a registered security interest or lien, the creditor can in most cases seize it from you as the buyer, even though you paid the full purchase price to the seller. A classic example is buying a vehicle, trailer or boat only to find out later that there was a bank registration against it that has not been paid. For these reasons, you should always obtain a search of the vehicle, trailer or boat before paying for it. If you are buying from a reputable dealership, you may find this unnecessary in most but not all cases, but certainly if you are buying privately, you should do the search. You can perform a number of searches at the Personal Property Registry:

  • Serial number searches, such as when you are buying or taking security in a serial numbered good such as a vehicle, snowmobile, airplane, boat, trailer, tractor ... and the list goes on. Not everything is a serial numbered good, though. For example, an expensive camera or musical instrument may have a serial number but it is not a serial numbered good under provincial legislation and regulations so you would not search it by the serial number.

  • Name searches of individuals or business names.

Bank Act Searches

This is a specialized registry where banks can register security for certain types of business lending, such as the farming, fishing, lumber, manufacturing industries and a few others. Doing a proper name search is more difficult in this system and best left to lawyers.

Governmental Accounts

If you are buying an existing business, you will want to ensure that their government remittances for PST, GST, employee source deductions, Workers' Compensation assessments, etc are paid up. This also applies to Labour Standards Act orders. If not, you may not get clear title to the property you have purchased. For more information, see my article about GST and PST on my "Business" page. These types of searches are also more tedious to do and typically require the consent of the business being searched as it involves confidential information.

Other Searches

There are also other searches such as Bank Act searches, bankruptcy and insolvency searches, etc that are beyond the scope of this article. My aim in writing this is to alert you that you should ask questions and do your homework before paying a substantial amount of money. It may help you avoid disappointment later. You will usually need the help of a lawyer.


Builders' Liens & Litigation

Builders' Lien claims result when someone is unpaid or claims they were unpaid after supplying work, services or materials for the improvement of a property. The most common type of claim is for work by a trade or delivery of building / construction material to a property. It applies to residential properties as well as commercial properties regardless of whether it is new construction, repair, renovation or otherwise. However, it can apply to some other types of services as well, such as architectural services.

40 Days to Provide Notice of Claim of Lien or Register Lien

The Builders' Lien Act of Saskatchewan, in general, allows a claimant to serve notice of a lien or register a lien against land when they are unpaid. There are time limits to do so. Unlike some provinces such as Alberta, there is no absolute prohibition against filing a lien after the typical 40 day period (in Saskatchewan) has expired, but it may or may not do any good, depending on whether contract and holdback money has already been properly paid out before the late lien was served or registered. This is far too complex a topic to discuss in any detail or with any precision in a website article. A lawyer who understands this legislation in great detail, as opposed to one who only occasionally deals with it, will know that the 40 day period is often calculated informally and incorrectly.

Crown Property

A claimant is not allowed to register a lien at the land registry against Crown property. Instead, notice has to be served on them. The definition of Crown includes various public bodies including land in the name of the province, a city and many public bodies.

Holdbacks

The Builders' Lien Act requires an owner or person paying under a contract (such as a general contractor) to hold back 10% of the contract price for 40 days after completion or substantial completion of the applicable contract, and to only release it then if there are no lien claims. If money is paid out too soon, the party responsible for payment might be liable to pay it again.

Removing A Lien

Once a lien has been registered or served, it can affect an owner's ability to get additional advances from their mortgage lender and it can affect the sale of a property. It can be paid voluntarily if the money is owing in exchange for a discharge. If it is disputed, you can hire a lawyer to try to lapse it at land titles. The land titles office will send a notice giving the lien claimant 30 days to start a court action and register it on the title. If that happens, and very often it does, then the lien will stay on the title. At this point or sooner, you'll need a lawyer experienced in builders' liens to help. The Builders' Lien Act also allows an owner or general contractor to apply to court to pay disputed money into court in exchange for removing the lien from the land. The amount to be paid is governed by the legislation and can also be determined by the court. It may involve additional money as security for costs ... but not in all cases. Litigation is time consuming and costly for both sides. The unsuccessful party may be ordered to pay "costs", but with rare exception, that is only a small contribution to the real costs incurred by each side.

Liability for Untrue or Exaggerated Claims

If someone makes a lien claim that is false or exaggerated, the court can grant judgment against them for all losses and harm caused by their wrongful acts. Therefore it should never be considered a negotiating tactic, for example, to make a lien claim that is not true.

Experience

The public often assumes that every lawyer is well versed in all areas of the law. Of course that is not possible. I don't practice criminal law, family law, personal injury law or many other areas or the law because it is not possible to be highly competent at everything. However, I do regularly deal with builders' lien issues and can help if you have a problem in that area.



Notice: The information on this website is general in nature only. It relates to Saskatchewan, Canada and may not be applicable in your jurisdiction. It does not constitute legal advice to you and no solicitor client relationship will be established. You should seek specific legal advice regarding your circumstances from a lawyer entitled to practise law in your jurisdiction.
* Richard Carlson Legal Prof. Corp. & R.T. Carlson Legal Prof. Corp.

www.rickcarlson.com | Mon, 23 Sep 2019 02:59:54 CST1