Builders' Lien Act

(1) In this Act,

"action" means an action under Part 8; (action)

"architect" means an authorized practitioner described in section 32 of the Architects Act; (architecte)

"contract" means

"contractor" means

"Court" means the Supreme Court of the Northwest Territories; (tribunal)

"government" means

but does not include

"Government of the Northwest Territories" means the Government as defined in subsection 1(1) of the Financial Administration Act; (gouvernement des Territoires du Nord-Ouest) "holdback" means the 10% of the value of the services or materials supplied under a contract or subcontract required to be withheld from payment by Part 4; (retenue)

"home" means

"home buyer" means a person who buys the interest of an owner in a premises that is a home, whether built or not and at the time the agreement of purchase and sale, provided

"improvement" means, in respect of land,

"interest in the premises" means an estate or interest to enter any lands or premises belonging to a person or public authority for the purpose of doing work, construction, repair or maintenance to any lands or premises; (intérêt sur les lieux)

"land" means land as defined in section 1 of the Land Titles Act; (bien-fonds)

"land titles office" means a land titles office for a district as described in section 4 of the Land Titles Act; (bureau des titres de biens-fonds) "lien claimant" means a person having a preserved or perfected lien; (créancier privilégié)

"materials" means movable property, that

"monetary supplementary benefit" includes a contribution, remittance, union dues, deduction, payment or other additional compensation; (avantage pécuniaire supplémentaire)

"mortgage" includes a charge; (hypothèque)

"mortgagee" includes a chargee; (créancier hypothécaire)

"owner" means any person, including a government but excluding a home buyer, having an interest in a premises at whose request an improvement is made to the premises

"payer" means the owner, contractor or subcontractor who is liable to pay for the services or materials supplied to an improvement under a contract or subcontract; (responsable du paiement)

"payment certifier" means an architect, professional engineer or any other person on whose certificate payments are made under a contract or subcontract; (personne qui autorise le paiement)

"perfection" means perfection as described in section 47; (opposabilité)

"person having a lien" includes a lien claimant and a person with an unpreserved lien; (titulaire du privilège)

"premises" includes

"preservation" means preservation as described in section 45; (conservation)

"price" means,

"professional engineer" means a professional engineer as defined in subsection 1(1) of the Engineering and Geoscience Professions Act; (ingénieur)

"Registrar" means the Registrar as defined in section 1 of the Land Titles Act; (registrateur)

"subcontract" means

"subcontractor" means

"substantial performance" means when a contract is substantially performed under section 2; (exécution substantielle) "supply of services" means any work or service performed on or in respect of an improvement, such as

"wages" means money earned by a worker for

"worker" means a person employed for wages in any kind of labour; (ouvrier)

"workers’ trust fund" means a trust fund

"written notice of a lien" means a written notice of a lien in the prescribed form, given by a person having a lien. (avis écrit d’un privilège)

(2) Subject to subsection (3), for the purposes of paragraph (a) of the definition "improvement" in subsection (1), a capital repair to land is any repair intended

(3) A capital repair to land described in subsection (2) does not include maintenance work performed in order

(4) Subject to subsection (5), for the purposes of paragraph (b) of the definition "price" in subsection (1), direct costs incurred are

(5) The direct costs under subsection (4) do not include indirect damages suffered, including

(6) For the purposes of this Act, materials are supplied to an improvement when they are

(7) For greater certainty, a contractor or subcontractor to whom materials are supplied and who designates land under paragraph (6)(b) is deemed to be the owner’s agent for that purpose, unless the person supplying the materials has actual notice to the contrary.

(8) For the purposes of this Act, a procurement process is commenced on the earliest of the making of

(1) A contract is substantially performed

(2) The price of the services or materials remaining to be supplied and required to complete the improvement must be deducted from the contract price in determining substantial performance under subsection (1), if

(3) A contract is deemed to be completed and services or materials are deemed to be last supplied to the improvement when the price of completion, correction of a known defect or last supply is less than or equal to the lesser of

(4) If a contract provides for all of the following, each improvement is deemed to be under a separate contract for the purposes of this section:

(1) Subject to section 18, this Act binds a government.

(2) For greater certainty, this Act does not bind the Government of the Northwest Territories.

(1) For greater certainty, an agreement is void if the agreement states that this Act or any portion of it does not apply.

(2) Nothing in this Act affects the application of the Arbitration Act.

(1) A contract or subcontract respecting an improvement is deemed to be amended to the extent that is necessary to be in conformity with this Act.

(2) Without restricting the generality of subsection (1), an agreement of purchase and sale that provides for the making or completion of an improvement is deemed to provide for the retention of holdbacks by the purchaser, where the purchaser is an owner.

(3) A tender by the purchaser in subsection (2), on closing of the tender, is not defective by reason that the purchaser does not tender the amount of the holdbacks.

(1) No certificate, declaration or claim for lien is invalidated by reason of a failure to comply strictly with subsection 37(2), 44(2) or 45(2) unless, in the opinion of the Court, a person has been prejudiced as a result.

(2) The Court may decide that a minor error or irregularity is insufficient to result in a failure to comply strictly under subsection (1) if the minor error or irregularity is

(1) All amounts for use in the financing of an improvement received by an owner other than a government, constitute a trust fund for the benefit of the contractor.

(2) Amounts received under subsection (1) include any amount that is to be used in the payment of

(3) If amounts payable by an owner under a contract are received by the owner on a certificate by a payment certifier, the amount certified constitutes a trust fund for the benefit of the contractor.

(4) Where the substantial performance of a contract has been certified or has been declared by the Court, an amount that is equal to the unpaid price of the substantially performed portion of the contract and received by the owner, constitutes a trust fund for the benefit of the contractor.

(5) The owner is the trustee of the trust fund under subsection (1), (2), (3) or (4).

(6) An owner shall not appropriate or convert any part of a trust fund for any use inconsistent with the trust until the contractor is paid all amounts respecting the improvement owed to the contractor by the owner.

(1) All amounts, whether or not due or payable, owing to a contractor or subcontractor or received by a contractor or subcontractor, constitute a trust fund for the benefit of

(2) The contractor or subcontractor is the trustee of the trust fund under subsection (1).

(3) The contractor or subcontractor shall not appropriate or convert any part of the trust fund to any use inconsistent with the trust until all subcontractors and other persons referred to in paragraph (1)(b) are paid.

(1) A person who is a trustee under section 9 shall comply with the following requirements respecting the trust funds:

(2) If the person under subsection (1) is a trustee of other trust funds under section 9, they may deposit the trust funds with the other trust funds if they maintain separate records required by paragraph (1)(b) for each trust fund.

(3) Trust funds from separate trusts that are deposited together into a single bank account in accordance with subsection (1) are deemed to be traceable.

(4) The depositing of trust funds in accordance with this section does not constitute a breach of trust.

(1) If the owner’s interest in a premises is sold by the owner, the amount of the trust fund for the benefit of the contractor is determined by the formula where

(2) The former owner is the trustee of the trust created under subsection (1).

(3) Until the contractor is paid all amounts owed respecting the improvement, the former owner shall not appropriate or convert any part of the trust property to

(1) Subject to Part 4, a trustee who pays for the supply of services or materials to an improvement out of money that is not subject to a trust under this Part, may retain from trust funds an amount equal to that paid by the trustee without being in breach of trust.

(2) Subject to Part 4, where a trustee pays for the supply of services or materials to an improvement out of money that is loaned to them, trust funds may be applied to discharge the loan to the extent that the lender’s money was so used by the trustee and the application of the trust money does not constitute a breach of trust.

(1) Subject to Part 4, if a contractor or subcontractor is solvent, a trustee of the contractor or subcontractor’s trust under section 9 may, without being in breach of trust, retain from trust funds the amount determined by adding

(2) Subject to Part 4, if a contractor or subcontractor is insolvent, a trustee of the contractor or subcontractor’s trust under section 9 may, without being in breach of trust, retain from trust funds the amount determined by adding

(1) A person who assents to or acquiesces in conduct that they know or reasonably ought to know amounts to breach of trust by a corporation is liable for the breach of trust under this Part.

(2) For greater certainty, a person under subsection (1) includes

(3) Whether a person has effective control of a corporation or its relevant activities is a question of fact.

(4) In determining the question under subsection (3), the Court may disregard

(5) Where more than one person is found liable or has admitted liability for a breach of trust under this Part, those persons are jointly and severally liable.

(6) A person who is found liable or who has admitted liability for a particular breach of trust under this Part is entitled to recover such contribution from any other person also liable for the breach in an amount that will result in equal contribution by all parties liable for the breach, unless the Court decides the equal contribution would not be fair.

(7) If the Court decides that the equal contribution under subsection (6) would not be fair, the Court may direct such contribution or indemnity as the Court decides appropriate in the circumstances.

(1) A person who supplies services or materials to an improvement for an owner, contractor or subcontractor, has a lien on the interest in the premises of the owner improved for the price of those services or materials.

(2) No person is entitled to a lien for monetary interest on the amount owed to the person in respect of the services or materials that have been supplied by the person, but nothing in this subsection affects a right that the person may otherwise have to recover that monetary interest.

(3) For greater certainty, subsection (1) applies to services or materials supplied by an architect and employees of the architect.

(1) A lien does not attach to an interest in a premises of a government.

(2) Where an improvement is made to a premises in which a government has an interest but the government is not an owner of the premises, the lien may attach to the interest in the premises of any other person in the premises.

(3) A lien does not attach to a premises, but constitutes a charge under section 23, if

(1) Subject to Part 4, a lien in respect of an improvement, is limited to the minimum of

(2) Subject to Part 4, the total value of the liens of all members of a class, as described in section 80, is limited to the least amount owed in respect of the improvement by a payer to the contractor or subcontractor whose contract or subcontract was performed by the supply of services or materials made by the members of the class.

(3) Subject to Part 4, the amount of a lien determined under subsection (1) or (2) may be reduced by an amount determined by adding the total of

(4) Subject to Part 4, if the contractor or subcontractor becomes insolvent, the amount of a lien determined under subsection (1), (2) or (3) may be reduced by an amount determined by adding the total of

(5) Notwithstanding subsection (1), where land is dedicated to a municipality as a public street and an improvement is made to the land at other than the municipality’s expense, the municipality shall, on default of payment by the payer, be liable to the value of the holdbacks under Part 4 that would have been required were the improvement made at the expense of the municipality.

(6) The procedure for making a claim under subsection (5) is the same as for enforcing a claim for lien against a municipality.

(1) This section applies where a person, other than an owner of premises,

(2) The person’s joint or common interest in the premises under subsection (1) is subject to the lien, unless the contractor receives notice before the supply of services or materials to the improvement is commenced, that the person having the joint or common interest assumes no responsibility for the improvement to be made.

(1) A landlord’s interest in the premises is subject to a lien, if

(2) The landlord’s interest under subsection (1) is 10% of the amount paid under paragraph (1)(b).

(3) A landlord’s forfeiture of a lease or termination of a lease, other than for non-payment of rent, does not deprive a person having a lien against the leasehold of the person’s interest in the lien.

(4) A landlord who intends to enforce forfeiture or termination of a lease, for which there is a claim of lien registered against the premises in the land titles office because of non-payment of rent, shall give notice in writing, to each person who has registered a claim for lien against the premises, of

(5) A person receiving notice under subsection (4) may pay to the landlord the amount of the unpaid rent within 10 days.

(6) The amount paid under subsections (4) and (5) may be added by the person to the person’s claim for lien.

(7) Nothing in this section prevents a determination in respect of a premises if the landlord is the owner of the premises.

(1) Where an owner enters into a single contract for improvements on more than one premises, a person supplying services or materials under the contract or under a subcontract may choose to

(2) Subsection (1) does not apply and a general lien must not arise in respect of a written contract that provides liens arise and expire on a lot-by-lot basis.

(1) Each payer shall, in respect of a contract or subcontract under which a lien may arise, retain a holdback equal to 10% of the price of the services or materials, as they are actually supplied under the contract or subcontract, until all liens that may be claimed against the holdback have expired or been satisfied, discharged or otherwise provided for under this Act.

(2) Commencing from the date a contract has been certified or declared to be substantially performed but services or materials remain to be supplied to complete the contract, the payer shall retain a separate holdback equal to 10% of the price of the remaining services or materials as they are supplied, until all liens claimed against the holdback have expired or been satisfied, discharged or otherwise provided for under this Act.

(3) The obligations to retain the holdbacks under subsections (1) and (2) apply even though that the contract or subcontract provides for partial payments or payment on completion.

(4) Some or all of any holdbacks may be retained in any form agreed to by the payer, contractor or subcontractor, instead of being retained in the form of funds.

(1) Subject to this section, an owner is personally liable for holdbacks that they are required to retain, to those lien claimants who have valid liens against the owner’s interest in the premises.

(2) Where the defaulting payer is the contractor, the owner’s personal liability to a lien claimant or to a class of lien claimants as described under section 82, does not exceed the holdbacks the owner is required to retain.

(3) Where the defaulting payer is a subcontractor, the owner’s personal liability to a lien claimant or to a class of lien claimants as described under section section 82, is determined by the minimum of

(4) The personal liability of an owner under this section may only be determined by the Court in an action under this Act.

(1) A payer may make payments up to 90% of the price of the services or materials that have been supplied under the contract or subcontract unless, prior to making payment, the payer has received written notice of a lien.

(2) Where a payer has received written notice of a lien and has retained an amount sufficient to satisfy the lien and the required holdbacks, the payer may make payment on a contract or subcontract up to 90% of the price of the services or materials that have been supplied under the contract or subcontract, less the amount retained.

(1) If the conditions in subsection (2) are met, a payer may make payment of the accrued holdback they are required to retain under subsection 24(1) on an annual basis.

(2) Subsection (1) applies if

(1) If the conditions in subsection (2) are met, a payer may make payment of the accrued holdback that they are required to retain under subsection 24(1) on the completion of the phases of the improvement, respecting the services or materials supplied during each phase of the improvement.

(2) Subsection (1) applies if

(3) If a contract provides for payment of accrued holdbacks on a phased basis but only with respect to a specified design phase, paragraph (2)(b) does not apply.

(1) An owner may refuse to pay the amount the owner is required to pay to a contractor under section 28 or 31, if

(2) A contractor may refuse to pay some or all of the amount the contractor is required to pay to a subcontractor under section 28 or 31, if

(3) A subcontractor may refuse to pay some or all of the amount the subcontractor is required to pay to another subcontractor under section 28 or 31, if

(4) Subsection (3) applies with necessary modifications to a subcontractor who receives notice under that subsection.

(1) This section applies if an owner, contractor or subcontractor

(2) A payment made under paragraph (1)(a) is deemed to be a payment by the owner, contractor or subcontractor to the payer of the person.

(3) A payment made under paragraph (1)(a) does not reduce

(1) This section applies if a contractor or a subcontractor defaults in the performance of a contract or subcontract.

(2) Subject to subsection (3), a holdback must not be applied by a payer

(3) Subsection (2) does not apply if all liens that may be claimed against the holdback have expired or been satisfied, discharged or otherwise provided for under this Act.

(1) Unless preserved, a lien arising from the supply of services or materials to an improvement expires as set out in this section.

(2) Subject to subsection (5), the lien of a contractor, for services or materials supplied to an improvement

(3) Subject to subsection (5), the lien of the trustee of a workers’ trust fund on behalf of a worker or workers, for services or materials supplied to an improvement

(4) Subject to subsection (5), the lien of any other person, for services or materials supplied to an improvement

(5) A person’s lien, in respect of the services or materials supplied on or before the date of substantial performance, expires without affecting any lien that the person may have for the supply of services or materials after that date, if

(6) If a person who has supplied services or materials under a contract or subcontract makes a declaration in the prescribed form declaring the following, then the facts stated in the form are presumed to be true, in the absence of evidence to the contrary:

(7) If a contract is terminated, a notice of termination must be published in the prescribed manner and form by

(8) For the purposes of this section, the date a contract is terminated is the termination date specified in the notice under subsection (7).

(9) Subsections (7) and (8) do not prevent a person from contesting the validity of a termination.

(1) On the application of a contractor, the payment certifier or owner shall determine whether the contract has been substantially performed in accordance with this section.

(2) If the payment certifier determines the contract has been substantially performed in accordance with section 2, they shall certify substantial performance by signing a certificate in the prescribed form.

(3) If there is no payment certifier, the owner and contractor shall

(1) The following shall set out in a certificate the date that a contract was substantially performed:

(2) The date set out in the certificate under subsection (1) is deemed for the purpose of this Act to be the date when the contract was substantially performed.

(1) A contractor shall publish a copy of the certificate of substantial performance in the prescribed manner.

(2) Any person may publish a copy of the certificate of substantial performance,

(1) Where there is a failure or refusal to certify substantial performance within a reasonable time, a person with an interest in the improvement may apply to the Court for the relief set out in subsection (2).

(2) On receiving an application under subsection (1), the Court may, on being satisfied that the contract is substantially performed,

(3) A declaration made under paragraph (2)(a) has the same force and effect as a certificate of substantial performance.

(4) Unless the Court otherwise orders, the day the declaration is made is deemed to be the date the contract was substantially performed.

(5) A person who applied to the Court under subsection (1) shall publish a copy of the declaration of substantial performance in the manner set out in the regulations.

(1) A certificate given or declaration made under sections 37 to 41 must include

(2) A person who receives an application to make a determination of substantial performance but fails or refuses within a reasonable time to certify the substantial performance, even though there are no reasonable grounds to believe the contract has not been substantially performed, is liable to anyone who suffers damages as a result.

(3) A payment certifier who fails to comply with section 39 is liable to anyone who suffers damages as a result.

(1) A payment certifier may determine that a subcontract has been completed, on the request of a contractor.

(2) If the payment certifier determines that a subcontract has been completed under subsection (1), they shall certify the completion of the subcontract in the prescribed form.

(3) If there is no payment certifier, the owner and the contractor may jointly make a declaration and certify completion of the subcontract in the prescribed form.

(4) If a subcontract is certified to be complete, the subcontract is deemed to have been completed on the date of certification.

(5) If services or materials are supplied to the improvement under a subcontract after the date the subcontract is certified to be complete, those services or materials are deemed to have been last supplied on the date of certification.

(6) A payment certifier or the owner and contractor shall, within seven days of the date the subcontract is certified to be complete, give a copy of the certificate of completion to

(1) A lien is preserved during the supplying of services or materials or at any time before it expires by the registration in the land titles office of a claim for lien on the certificate of title of the premises in accordance with this Part.

(2) A claim for lien must set out, with an affidavit supporting the claim,

(3) Subject to subsection 61(3), a general lien must be preserved against each of the premises that the person having the lien wants the lien to continue to apply against.

(4) The claim against each premises in a general lien under subsection (3) must be for the price of the services or materials that were supplied to each of the premises.

(5) Any number of persons having liens on the same premises may unite in a claim for lien.

(1) A person who preserves a claim for lien or who gives written notice of a lien in any of the following circumstances is liable to a person who suffers damages as a result:

(2) In the circumstances described in paragraph (1)(a), the Court may, on application, order that the lien amount be reduced by the exaggerated portion, in accordance with section 19, if the Court finds that the person has acted in good faith.

(1) A lien is not perfected unless it is preserved.

(2) A lien that has been preserved expires unless it is perfected prior to the end of the 90-day period next following the last day under section 36, when the lien could have been preserved.

(3) A lien claimant may perfect a preserved lien when the lien claimant

(4) Subject to subsection 61(3), a preserved general lien that attaches to the premises must be perfected against each premises to which the lien is to apply.

(5) A person may commence an action for the purpose of perfecting a lien, even though the period of credit has not expired, if the person

(6) The Court may, on application, order that a certificate of pending litigation expires if no significant steps toward trial have been taken after two years from the date of registration of the certificate.

(7) The Court may, on application, order the action described in an expired certificate of pending litigation referred to subsection (6) be discontinued.

(8) A person may file an order for discontinuance under subsection (7) in the land titles office.

(1) Subject to this section, the following persons may, at any time and by written request, require information to be produced within 21 days:

(2) If the request under subsection (1) is made to the owner or a contractor but not an owner under subsection (4) respecting a contract, the information must include

(3) If the request under subsection (1) is made to a contractor or subcontractor respecting a subcontract, the information must include

(4) If the request under subsection (1) is made to an owner who is selling the owner’s interest in a premises that is a home, the information must include

(5) If the request under subsection (1) is made to a mortgagee or unpaid vendor, the information must include

(6) For the purposes of paragraph (5)(b), if amounts have been advanced under the mortgage for the purposes of financing both the purchase price of the land and the making of the improvement, the statement must show the amount advanced under the mortgage for each of those purposes.

(7) If the request under subsection (1) is made by a trustee of a workers’ trust fund, the contractor or subcontractor shall permit the trustee, within a reasonable time, to inspect the payroll records of all workers

(1) In this section, "interested person" means a person

(2) A contractor shall provide an interested person with confirmation of the date and location of the publication of the copy of the certificate of substantial performance under section 37, on request of the person and within a reasonable time.

(1) The Court may, on application, order a person to comply with a request that has been made to the person under this Part.

(2) The Court may make any order respecting costs as it considers appropriate in the circumstances.

(1) Each of the following persons may be cross-examined without an order on a claim for lien at any time, whether or not an action has been commenced:

(2) Only one cross-examination under subsection (1) is permitted.

(3) The contractor, payer of the claim for lien and each person named in the claim for lien who has an interest in the premises, are entitled to participate in the cross-examination.

(4) A person wanting to cross-examine a person under subsection (1) shall give at least seven days’ notice of the cross-examination, specifying the time and place for the cross-examination, to

(5) The Supreme Court Rules respecting cross-examinations apply, with necessary modifications, to cross-examinations under this section.

(1) A preserved or perfected lien is discharged

(2) A written notice of a lien is withdrawn by giving a withdrawal, in a form approved by the Registrar, to the person to whom the written notice of a lien was given.

(3) A payer who is given a withdrawal is deemed to be in the same position as if written notice of a lien had never been given, for the purposes of subsection 26(2).

(1) A preserved or perfected lien may be postponed, in favour of the interest in the premises, by the registration on the certificate of title of the premises of a notice of postponement in a form approved by the Registrar.

(2) If a postponement is made under subsection (1), subsection 79(9) applies.

(1) A person may, without notice, apply to the Court for an order vacating a claim for lien.

(2) The Court may, on receiving an application made under subsection (1),

(1) A person may apply to the Court for

(2) The Court may, on receiving an application made under subsection (1), make an order vacating the registration of the claim for lien or any certificate of pending litigation in respect of the claim for lien, if

(1) A person may apply to the Court for an order vacating a claim for lien given to the owner.

(2) The Court may, on receiving an application made under subsection (1), make an order vacating the claim for lien if

(1) This section applies where an order is made under sections 58 to 60.

(2) A lien claimant, whose lien is the subject of the order, may proceed with an action to enforce the claim against the amount paid into Court or security posted under Part 8.

(3) If a lien claimant proceeds with an action under subsection (2), a certificate of pending litigation must not be registered against the premises.

(4) The amount paid into Court or security posted is subject to the claim of each person having a lien as if the amount paid into Court or security posted was realized by the sale of the premises in an action to enforce the lien.

(5) The amount paid or security posted under subsection (4) must be distributed among each lien claimant in accordance with the priorities under section 81.

(6) Where an amount is realized in a lien action by the sale of the premises or otherwise, the amount must be

(1) The Court shall, on application, vacate a written notice of a lien if any of the circumstances in sections 58 to 60 apply.

(2) If an application is made to vacate the registration of a general lien against one or more of the premises subject to the lien, the Court may divide the general lien between

(3) Where an amount has been paid into Court or security has been posted with the Court under this section, the Court may, with notice to such persons as it directs, order

(4) A letter of credit containing reference to an international commercial convention is acceptable as security for the purposes of this section if

(5) If an order is made under paragraph 58(2)(a) or section 59, the lien

(6) If an order is made under section 58 or 60, the owner or payer is deemed to be in the same position in respect of the operation of sections 23, 25 and 26, as if

(7) If more than one application is made under section 58, 59 or 60 for the payment into Court or posting of security to obtain an order vacating the registration of one or more preserved or perfected liens arising from the same improvement, the Court may

(1) If a lien that attaches to the premises is not preserved or perfected within the time allowed under sections 36 to 47, a person may, without notice, apply to the Court for

(2) A person who applies to the Court under subsection (1) must include with their application

(3) The Court shall, on receiving an application under subsection (1), make any of the following, if satisfied that the lien does not attach to the premises and that the lien has not been preserved or perfected within the time allowed under section 36 or 47:

(4) If a declaration and an order are made, the Court shall order that

(1) The Court may, on application, order the discharge of a lien,

(2) The Court may, on application, make any of the following orders:

(3) An order under subsection (1) or (2) may include any terms or conditions that the Court considers appropriate in the circumstances.

(4) If a certificate of pending litigation is vacated under paragraph (2)(a) and there remain liens which may be enforced in the action to which the certificate relates, the Court shall give those directions it deems necessary for the continuation of the action.

(1) A discharge of a lien under this Part is irrevocable and cannot be revived.

(2) A discharge of a lien under this Part does not affect the right of the person whose lien was discharged to claim a lien, in respect of services or materials supplied by the person subsequent to the preservation of the discharged lien.

(1) If a lien attaches to a premises, the following orders may be registered:

(2) An order referred to in subsection (1) may be registered by registering on the certificate of title on the premises a certified copy of the order that includes

(1) A lien claim is enforceable in an action in the Court.

(2) The procedure in an action should be of a summary character, taking into account the amount and nature of the liens in question.

(1) The Court may make any orders necessary for the completion of a sale and for vesting an interest in the premises in the purchaser.

(2) Where an interest in the premises is sold under Court order or by a trustee appointed under Part 9, the proceeds of the sale must be paid into Court to the credit of the action.

(3) The Court may add to the claim of the successful party any fees and disbursements of the party incurred by the sale under subsection (2).

(4) The Court shall direct to whom proceeds must be paid in accordance with the priorities under this Act.

(5) Where the proceeds of the sale are not sufficient to satisfy the judgment and costs, the Court shall

(1) A person having a lien or another person having an interest in the premises may apply to the Court for the appointment of a trustee.

(2) The Court may, on receiving an application made under subsection (1), appoint a trustee with any terms it deems necessary, including respecting the giving of security.

(3) Subject to the supervision of the Court, a trustee appointed under subsection (2) may

(4) Subject to subsection 79(8), a lien is a charge on an amount recovered by the trustee, after payment of reasonable business expenses and management costs incurred by the trustee in the exercise of any power under subsection (3).

(5) An interest in a premises that is to be sold may be offered for sale, subject to any mortgage, interest or other encumbrance that the Court directs.

(6) The Court may make orders necessary for the completion of a mortgage, lease or sale by a trustee under this section.

(1) The rights of a person having a lien may be assigned by an instrument in writing.

(2) If a person having a lien dies and the lien has not been assigned under subsection (1), the rights of the deceased person having the lien pass to the person’s personal representative on behalf of the estate.

(1) Subject to section 83, if one or more premises that are subject to an unpreserved general lien are sold, the general lien continues for the full amount of the lien against the premises that were not sold.

(2) Where a person having a preserved or perfected general lien discharges the lien against one or more of the premises subject to the lien, the lien continues for the full amount of the lien against those premises that were not discharged.

(1) None of the following, in respect of a claim merges, waives, pays, satisfies, prejudices or destroys a general lien:

(2) A person having a lien may enforce the lien if

(3) Nothing in this section extends the time for, or dispenses with the requirement for, the preservation or perfection of a lien.

(1) Subject to subsection (2), if a general lien is preserved by registration of a claim for lien, the lien claimant is deemed to be a purchaser to the extent of their lien under the Land Titles Act.

(2) If this Act applies to a lien that is preserved by registration of a claim for lien, this Act prevails over the Land Titles Act.

(1) Except as provided in this section, liens arising from an improvement have priority over any conveyance, mortgage or other agreement affecting the owner’s interest in the premises.

(2) If a mortgagee takes a mortgage with the intention to secure the financing of an improvement, the liens arising from the improvement have priority over the mortgage.

(3) A mortgage taken out to repay a mortgage referred to in subsection (2) is registered to the extent of any deficiency in the holdbacks required to be retained by the owner under Part 4.

(4) Subject to subsections (2) and (3), and without limiting the effect of subsection (5), a conveyance, mortgage or other agreement affecting the owner’s interest in the premises that was registered prior to the first lien arising from the improvement, has priority over the liens arising from the improvement, to the extent of the minimum of

(5) Subject to subsections (2) and (3), a conveyance, mortgage or other agreement affecting the owner’s interest in the premises that was registered prior to the first lien arising from the improvement has the priority under subsection (4) and priority over any other lien arising from the improvement, to the extent of any advance made in respect of the conveyance, mortgage or other agreement after the first lien arose, unless

(6) If a mortgage affecting the owner’s interest in the premises is registered after the first lien arose, other liens arising from the improvement have priority over the mortgage, to the extent of any deficiency in the holdbacks required to be retained by the owner under Part 4.

(7) Subject to subsections (2), (3) and (6), a conveyance, mortgage or other agreement affecting the owner’s interest in the premises that is registered after the first lien arose has priority over the liens arising from the improvement, to the extent of any advance made in respect of the conveyance, mortgage or other agreement, unless

(8) If an amount is advanced to a trustee appointed under Part 9 as a result of the exercise of any powers delegated to the trustee under that Part,

(9) Notwithstanding subsections (5) and (7), if a preserved or perfected lien is postponed in favour of the interest of another person in the premises, the other person has priority in accordance with the postponement over

(10) Nothing in subsection (9) affects the priority of the liens under subsections (2), (3) and (6).

(11) A purchaser who takes title to the premises from a mortgagee takes title free of the priority of the liens under subsections (2), (3) and (6), if any of the following is registered on the certificate of title of the premises:

(12) On registration of a bond or letter under subsection (11),

(13) Subsections (2), (3) and (6) do not apply to a mortgage given or assumed by a home buyer.

(1) All persons having a lien who have supplied services or materials to the same payer comprise a class.

(2) A person who has supplied services or materials to more than one payer is a member of each class to the extent that the person’s lien relates to each class.

(1) Unless otherwise provided under this Act,

(2) A conveyance or mortgage to any person entitled to a lien on a premises made in payment of or as security for the claim on the lien, whether given before or after the lien arises, is void against all other persons entitled to a lien on the premises.

(1) The lien of a worker has priority over the lien of any other person belonging to the same class, to the extent of the amount of 40 regular-time working days’ wages.

(2) If monetary supplementary benefits are payable to a workers’ trust fund instead of to a worker, the trustee of the workers’ trust fund is subrogated to the rights of the worker under this Act with respect to those benefits.

(3) A device that purports to defeat the priority given to workers by this section is void.

(1) If a payer becomes insolvent, the trust fund of which the payer is trustee must be distributed so that priority over all other persons is given to

(2) Priority in the distribution of trust funds among those who have proved liens must be in accordance with the priorities of their liens as set out in this Part.

(3) Subject to subsection (4), the remaining trust funds must be distributed among the beneficiaries of the trust and the beneficiaries of trusts under section 9 derived from that trust, whose liens have not been proved.

(4) The distribution under subsection (3) must be in accordance with the respective priorities to which those liens would have been entitled as set out in this Part, had those liens been proved.

(1) In this section, "public contract" means a contract between an owner and a contractor respecting an improvement, if the owner is a government.

(2) Subject to the regulations, this section applies to a public contract if the contract price exceeds the amount prescribed for the applicable owner.

(3) This section does not apply in the case of a contractor who is an architect or professional engineer.

(4) On entering into a public contract, a contractor shall provide the owner with a labour and material payment bond, in the prescribed form, that

(5) On entering into a public contract, a contractor shall provide the owner with a performance bond, in the prescribed form, that

(6) A bond form, prescribed for the purposes of subsection (4) or (5), may set out the claims process applicable in respect of the bond.

(7) For greater certainty, this section does not limit the ability of the owner to require the contractor to provide other types of bonds or security.

(1) If a labour and material payment bond is in effect in respect of an improvement and the principal defaults in making a payment guaranteed by the bond, any person to whom the payment is guaranteed has a right of action to recover the amount of the person’s claim, in accordance with the terms and conditions of the bond, against the surety carrier and the principal.

(2) If a performance bond is in effect in respect of an improvement and the contractor defaults in performing the contract guaranteed by the bond, the owner has a right of action to enforce the bond, in accordance with its terms and conditions, against the surety carrier and the contractor.

(3) Nothing in this section makes the surety carrier liable for an amount in excess of the amount that the surety undertakes to pay under a bond.

(4) A surety carrier’s liability under the bond must be reduced by and to the extent of any payment made in good faith by the surety carrier either before or after judgment is obtained against the surety carrier.

(5) Nothing in this section makes the surety carrier liable as the principal under a bond or makes the surety carrier a party to a contract.

(6) On satisfaction of its obligation to a person under a bond to which this section applies, the surety carrier must be subrogated to all the rights of the person.

(1) Subject to this section, the Court may order costs against

(2) The order for costs under subsection (1) may be ordered if the party or person knew that the lien was

(3) The order for costs under subsection (1) may be ordered if the party knew that the action, application, preservation, perfection or trial constituted an abuse of process.

(4) An order made under subsection (1) may be made on a substantial indemnity basis, including where the application is heard by a person other than a judge.

(5) Where the least expensive course is not taken by a party, the costs allowed to the party must not exceed what would have been incurred had the least expensive course been taken.

(1) Except where otherwise ordered by the Court, documents and notices required to be served under this Act must be served in accordance with the Supreme Court Rules.

(2) Notwithstanding subsection (1), a written notice of lien must be served personally as required by the Supreme Court Rules for originating documents.

(1) For greater certainty, the Mechanics Lien Act, RSNWT 1988, c.M-7 continues to apply to all

(2) If a contract or subcontract entered into before the coming into force of this Act is amended in good faith on or after that day, the Mechanics Lien Act, RSNWT 1988, c.M-7 applies to

(1) The Land Titles Act is amended by this section.

(2) Each of the following provisions is amended by striking out "mechanics’ lien" and substituting "builders’ lien":