Registration Requirements Under the Prompt Payment and Construction Lien Act

Written By: David Adie

Recent amendments to both the Prompt Payment and Construction Lien Act, RSA 2000, c P-26.4, (formerly the Builders’ Lien Act) (the “PPCLA”) and the Land Titles Act, RSA 2000, c L-4 (the “Land Titles Act”) have created ambiguity relating to deadlines for certain registrations pursuant to the PPCLA. 

The Court in CCS Contracting Ltd. v. Condominium Corporation No. 1520090, 2023 ABKB 147 (“CCS”) addressed an ambiguity between changes to the pending registration queue at the Land Titles Office and deadlines for requirements to validate builders’ liens under the PPCLA. 

Registration Timing for the Pending Registration Queue 

The Land Titles Office currently has a turn around time of 2-3 months for registering instruments on title to properties in Alberta.  

The timing of the registration of an instrument can have significant implications for certain registrations, such as builders’ liens and a certificates of lis pendens (a “CLP”).  

To address delays in registering instruments, an amendment was passed to the Land Titles Act on April 1, 2021, creating a pending registration queue (the “PRQ”), where an instrument would be submitted for registration against title, and given a document registration request number (a “DRR Number”), which holds the instrument in line for registration against title.

A DRR Number is a distinct number from the actual registration number on title.  

Further, where there is a deficiency in the instrument being registered, the Land Titles Office will give the registering party 30 days to correct the deficiency while remaining “in line” for their registration. 

Registering an instrument can take months, and so the PRQ allows for instruments to be placed on title prior to their registration, allowing the registering party to reserve their place in line while the instrument is waiting to be formally registered on title. 

Certain Acts and Regulations impose timing requirements for the registration of instruments.  

The amendments to the Land Titles Act address such timing requirements by legislating that instrument registration is deemed to be satisfied when the instrument is entered in the PRQ (section 14.1(7)). 

Registration of Builders’ Liens under the Prompt Payment and Construction Lien Act 

The PPCLA sets out requirements for the registration of builders’ liens.  

Pursuant to the PPCLA, a builders’ lien relating to general projects must be registered within 60 days from the last date of work.

Further, after a builders’ lien is registered, the following must be done within 180 days of the registration of the lien:

 1.       an action must be commenced in the Court of King’s Bench in which the lien could be realized; and

 2.       a CLP must be registered against title to the land (the “Registration Deadline Requirement”).

The Registration Deadline Requirement is a mandatory step in preserving a builders’ lien on title. A lien holder who fails to adhere to the Registration Deadline Requirement can have their lien struck. 

However, given the amendments to the Land Titles Act, does the Registration Deadline Requirement commence when the lien is submitted in the PRQ, or when the lien is registered against title, which can take months after submission to the PRQ?

Recent Case Law  

In CCS, Applications Judge W.S. Schlosser heard arguments relating to the timelines for the Registration Deadline Requirement. 

In CCS, the lien was submitted for registration on April 8, 2022 (the “Date of Submission”), and was registered on July 25, 2022 (the “Date of Registration”).  

The Statement of Claim was filed on October 25, 2022, 200 days after the Date of Submission and 92 days after the Date of Registration.  

The CLP was filed on November 21, 2022, 227 days after the Date of Submission and 119 days after the Date of Registration.  

If the Date of Submission was the date to calculate the Registration Deadline Requirement, then the lien would be out of time for registration. 

If the Date of Registration was the date to calculate the Registration Deadline Requirement, then the lien would be in time for registration.  

Judge Schlosser found that the Date of Registration was the proper date for the Registration Deadline Requirement because the PRQ is not a true registration against title, but is only a placeholder for the lienholder to claim their rights against title.  

Further, Judge Schlosser found that should there be ambiguity between the PPCLA and the Land Titles Act, the discrepancy should favour the lienholder.  

Conclusion  

While recent amendments to both the PPCLA and the Land Titles Act show that there are still many practical issues that need to be resolved in the legislation, CCS highlights that the Court has continued to apply a strict interpretation of the term “registered” under the PPCLA. 

It is now important for owners to understand the distinction between the Date of Submission and the Date of Registration of any lien, given that requirements of lienholders run from the date of registration.  

If you require any assistance in relation to builders’ liens or matters under the PPCLA, please do not hesitate to contact the writer, David Adie.