Acts and Regulations

M-6 - Mechanics’ Lien Act

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Document at 7 July 2021
CHAPTER M-6
Mechanics’ Lien Act
Definitions
1In this Act
“completion of the contract” means substantial performance, not necessarily total performance of the contract;(exécution du contrat)
“contractor” means a person contracting with, or employed directly by, the owner or his agent to do work upon or to furnish material for an improvement, but does not include a labourer;(entrepreneur)
“court” means The Court of Queen’s Bench of New Brunswick;(cour)
“highway” includes any road, road allowance, street, lane, thoroughfare, bridge, subway, pier, ferry, square, and public place, appropriated to the public use;(route)
“improvement” includes anything constructed, erected, built, placed, dug or drilled on or in land except a thing that is not attached to the realty nor intended to be or become part thereof;(amélioration)
“judge” means a judge of the court;(juge)
“labourer” means a person employed for wages in any kind of labour, whether employed under a contract of service or not;(ouvrier)
“land” includes improvements;(bien-fonds)
“lien” means a lien created by this Act;(privilège)
“owner” means a person having an estate or interest in land upon or in respect of which work is done or material is furnished at his request, express or implied, and(propriétaire)
(a) upon his credit,
(b) upon his behalf,
(c) with his privity and consent, or
(d) for his direct benefit,
and all persons claiming under him whose rights are acquired after the beginning of the work or the furnishing of the material in respect of which a lien is claimed;
“proper registry office” when used with reference to the filing, discharging or vacating of a claim of lien or other instrument or document, or of any dealing, relating to or affecting any land, means the registry office of the county in which the land is situate;(bureau de l’enregistrement compétent)
“registrar” means a registrar of deeds;(conservateur)
“sub-contractor” means a person not contracting with or employed directly by the owner or his agent for the doing of any work, but contracting with or employed by a contractor, or by a sub-contractor under him, but does not include a labourer;(sous-traitant)
“wages” means money earned by a labourer for work done, whether by time or piece work or otherwise;(salaire)
“work” includes the doing of work and the performance of services upon or in respect of an improvement, and also includes the breaking of any land or the clearing of timber or scrub.(travaux)
R.S., c.142, s.1; 1965, c.27, s.3; 1972, c.45, s.1; 1979, c.41, s.77; 1980, c.32, s.20
Application of Act
2This Act does not apply in respect of a highway or any work done or caused to be done thereon by a local government, or in respect of material furnished therefor.
R.S., c.142, s.2; 2005, c.7, s.41; 2017, c.20, s.99
Trust fund, offences and penalties
3(1)All sums received by a builder or contractor or a sub-contractor on account of the contract price are and constitute a trust fund in the hands of the builder or contractor, or of the sub-contractor, as the case may be, for the benefit of the proprietor, builder or contractor, sub-contractors, Workplace Health, Safety and Compensation Commission, workmen and persons who have supplied material on account of the contract or who have rented equipment to be used on the contract site, and the builder or contractor or the sub-contractor, as the case may be is the trustee of all such sums so received by him, and until all workmen and all persons who have supplied material on the contract or who have rented equipment to be used on the contract site and all sub-contractors are paid for work done or material supplied on the contract and the Workplace Health, Safety and Compensation Commission is paid any assessment with respect thereto, may not appropriate or convert any part thereof to his own use or to any use not authorized by the trust.
3(2)Every builder, contractor or sub-contractor who appropriates or converts any part of the contract price referred to in subsection (1) to his own use or to any use not authorized by the trust commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category F offence and every director or officer of a corporation who knowingly assents to or acquiesces in any such offence by the corporation is guilty of such offence in addition to the corporation.
3(3)Notwithstanding the provisions of this section, where a builder, contractor or sub-contractor has paid in whole or part for any materials supplied on account of the contract or for any rented equipment or has paid any workman or sub-contractor who has performed any work or services or placed or furnished any material in respect of such contract, the retention by such builder, contractor or sub-contractor of any amount so paid by him shall not be deemed an appropriation or conversion thereof to his own use or to any use not authorized by the trust.
1959, c.60, s.1; 1981, c.40, s.1; 1981, c.80, s.30; 1990, c.61, s.77; 1994, c.70, s.4
Lien of person who performs work or provides material
4(1)A person who
(a) does, or causes to be done any work upon or in respect of an improvement, or
(b) furnishes any material to be used in an improvement,
for an owner, contractor or sub-contractor has, subject as herein otherwise provided, a lien for wages or for the price of the work or material, as the case may be, or for so much thereof as remains owing to him, upon the estate or interest of the owner in the land in respect of which the improvement is being made, as such estate or interest exists at the time the lien arises, or at any time during its existence.
4(2)Save as herein provided, a lien does not attach so as to make the owner liable for a greater sum than that payable by the owner to the contractor.
4(3)Save as herein provided, where a lien is claimed by a person other than the contractor, it does not attach so as to make the owner liable for a greater sum than the amount owing to the contractor for whom, or for whose sub-contractor, the work has been done, or the materials have been furnished.
4(4)No claim of lien shall be filed if the amount of the claim or the aggregate of joined claims is less than one hundred dollars.
4(5)Material shall be deemed to be furnished to be used within the meaning of this Act when it is delivered either on the land upon which it is to be used, or on such land or in such place in the immediate vicinity thereof as is designated by the owner or his agent, or by the contractor or sub-contractor.
4(6)Where material furnished to be used as set out in subsection (1) is incorporated in an improvement, a lien attaches as herein provided, notwithstanding that the material may not have been delivered in strict accordance with subsection (5).
4(7)A person who rents equipment to an owner, contractor or sub-contractor for use on a contract site shall be deemed for the purposes of this Act to have performed a service for which he has a lien for the price of the rental of the equipment used on the contract site, limited, however, in amount to the sum justly owed and due to the person entitled to the lien from the owner, contractor or sub-contractor in respect of the rental of the equipment.
R.S., c.142, s.3; 1965, c.27, s.4; 1981, c.40, s.2
Agreement waiving lien
5No agreement deprives a person not a party thereto and otherwise entitled to a lien under this Act of the benefit of the lien.
R.S., c.142, s.4
Agreement waiving lien, device designed to defeat priority
6(1)An agreement by a labourer that this Act does not apply or that the remedies provided by it are not available for his benefit is void.
6(2)Any device by an owner, contractor, or sub-contractor to defeat the priority given by this Act to a labourer for his wages is void.
R.S., c.142, s.5
Payment to defeat or impair lien, mortgage, conveyance or charge as security for lien
7(1)A payment made for the purpose of defeating or impairing a lien is void for that purpose.
7(2)A conveyance, mortgage or charge of or on land given in payment of or as security for a lien upon that land whether given before or after the lien arises, shall be deemed to be fraudulent and void as against any other person entitled under this Act to a lien on the same land.
R.S., c.142, s.6
Time lien arises
8A lien arises when the work is begun or the first material is furnished.
R.S., c.142, s.7
Priority of lien
9(1)A lien has priority over
(a) all judgments, executions, assignments and receiving orders recovered, issued or made after the lien arises, and
(b) subject to subsection (2), all claims under conveyances, mortgages and other charges, and agreements for sale of land made by the owner before or after the lien arises.
9(2)Where a conveyance, mortgage or other charge or agreement for sale is registered before the filing of a claim of lien, a payment or advance made on account of the conveyance, mortgage or other charge or agreement for sale before the filing of a claim of lien or before notice in writing of the lien has been given to the person making that payment or advance has priority over the lien, but only to the extent that the total of all payments or advances made by the person, including that payment or advance, does not exceed the value of the land at the time that payment or advance is made.
9(3)Notice in writing under subsection (2) may be given in the form prescribed by regulation and may be delivered either personally or by registered mail to the person making the payment or advance, and where the person making the payment or advance is a corporation, the notice may be delivered to an officer of the corporation at its head office or to the manager or other person in charge of an office of the corporation within the Province.
9(4)Where the owner has an estate or interest in the land as purchaser under an agreement for sale and the purchase money or part thereof is unpaid, the vendor has priority over a lien only to the extent of the value of the land at the time the lien arose.
R.S., c.142, s.8; 1965, c.27, s.2, 5; 1972, c.45, s.2; 2013, c.32, s.20
Equality of liens, priority of lien for wages
10(1)Except as otherwise provided herein, no lienholder has any priority over or preference to another lienholder; and the proceeds of any sale so far as required, except as aforesaid, shall be distributed among the lienholders pro rata.
10(2)Liens for wages have, for all purposes under this Act and to the extent of thirty days wages, priority over all other liens.
10(3)All liens for wages rank on an equal footing.
R.S., c.142, s.9
Dower
11Where, with the privity and consent of the husband, work is done or services performed or material is furnished to be used upon or in respect of the land of a married woman or land in which she has an interest or an inchoate right of dower, the husband shall, for the purposes of this Act, be conclusively presumed to be acting as her agent as well as for himself, unless the person doing the work or performing the services or furnishing the materials has notice to the contrary.
R.S., c.142, s.10
Lien on leasehold
12(1)Where the estate or interest upon which the lien attaches is leasehold, the fee simple is also subject to the lien if the person doing the work or supplying the material gives notice in writing by registered letter or personal service to the owner or his agent of the work to be done or the material to be furnished, and the owner or his agent fails within ten days thereafter to give notice to such person that he will not be responsible therefor.
12(2)No forfeiture or cancellation of a lease, except for nonpayment of rent, deprives any person otherwise entitled to a lien of the benefit of the lien; and that person may pay any rent due or accruing due and the amount so paid may be added to his claim.
R.S., c.142, s.11
Fire
13Where a property in respect of which a lien has arisen is wholly or partly destroyed by fire, any money received or receivable by an owner or by a prior mortgagee or chargee by reason of insurance thereon takes the place of the property so destroyed, and is, after satisfying any prior mortgage or charge in the manner and to the extent set out in subsection 9(4), subject to the claims of lienholders to the same extent as if the money were realized by a sale of the property in an action to enforce a lien.
R.S., c.142, s.12
Material
14(1)During the existence of a lien no part of any material affected thereby shall be removed to the prejudice of the lien.
14(2)Material actually furnished to be used for the purpose set out in section 4 is subject to a lien in favour of the person furnishing it until it is placed in the improvement; and while that lien exists the material is not subject to execution or other process to enforce any debt other than that for the purchase money thereof.
R.S., c.142, s.13
Hold back
15(1)An owner liable upon a contract under which a lien may arise shall deduct from any payments made by him thereunder and subject to section 17 retain for a period of sixty days after the completion or abandonment of the contract an amount equal to twenty per cent of the value of the work done and of the material furnished to be used, irrespective of whether the contract provides for instalment payments or payment on completion of the contract.
15(2)The value mentioned in subsection (1) shall be calculated on the basis of the contract price, or, if there is no specific price, then on the basis of the actual value of the work and material.
15(3)Where the value of the work and material exceeds fifteen thousand dollars, the amount to be retained shall, except as hereafter mentioned, be equal to fifteen per cent instead of twenty per cent of the value of the work and materials calculated as aforesaid, but shall not be less than the sum required to be retained pursuant to subsection (1) when the value is fifteen thousand dollars.
(a) a contract is under the supervision of an architect, engineer or other person upon whose certificates payments are to be made,
(b) the architect, engineer or other person referred to in paragraph (a) certifies to the owner and to a sub-contractor that the sub-contract has been completed to his satisfaction,
(c) sixty days have elapsed after the certificate referred to in paragraph (b) was delivered to the owner and sub-contractor, and
(d) no claim of a lien derived under that sub-contract is filed under section 20 or all such liens are discharged pursuant to section 30 hereof,
the owner shall reduce the amount to be retained by him by
(e) fifteen per cent or twenty per cent, as the case may be, of the sub-contract price, or
(f) where there is no specific sub-contract price, fifteen per cent or twenty per cent, as the case may be, of the actual work, service performed or materials furnished under that sub-contract.
15(5)Where a certificate issued by an architect, engineer or other person to the effect that a sub-contract by which a sub-contractor became a sub-contractor has been completed to the satisfaction of that architect, engineer or other person has been given to that sub-contractor, then for the purposes of subsections 24(2), (3) and (4) and section 27 that sub-contract and any materials furnished or to be furnished thereunder and any work or services performed or to be performed thereunder shall, so far as concerns any lien thereunder of that sub-contractor, be deemed to have been completed or furnished not later than the time at which the certificate was so given.
15(6)Every lien is a charge upon the amount directed by this section to be retained in favour of the lienholders who have done work or furnished material for
(a) the contractor to whom the money so required to be retained is payable, or
(b) his sub-contractor.
15(7)All payments up to eighty per cent as fixed by subsection (1) or up to eighty-five per cent as fixed by subsection (3) and payments permitted as a result of the operation of subsections (4) and (5) made in good faith by an owner to a contractor, or by a contractor to a sub-contractor, or by one sub-contractor to another sub-contractor, before notice in writing of the lien given by the person claiming the lien to the owner, contractor or sub-contractor, as the case may be, operate as a discharge pro tanto of the lien.
15(8)Every contract is amended in so far as is necessary to be in conformity with this section.
15(9)Where a contractor or sub-contractor makes a default in completing his contract, the amount required to be retained under this section shall not, as against a lienholder, be applied by the owner, contractor or sub-contractor to the completion of the contract or for any other purpose than the satisfaction of liens.
R.S., c.142, s.14; 1960, c.49, s.1, 2, 3, 4; 1965, c.27, s.6
Effect of notice of lien
16(1)Where a lienholder gives the owner notice in writing of his lien, stating under oath the amount claimed, the owner shall retain from the amount payable to the contractor under whom the lien is derived the amount stated in the notice, in addition to the amount retained under section 15.
16(2)The amounts retained pursuant to subsection (1) constitute a fund, separate from that constituted by the amounts retained pursuant to section 15, for the benefit of lienholders who give notice under this section.
16(3)The lien of each lienholder who gives notice under this section is a charge in his favour upon the amount directed by this section to be retained; and each of such lienholders ranks pari passu on the amount retained under this section for the amount for which his lien may be enforced, and the amount so retained shall be distributed among such lienholders pro rata as hereinafter provided.
16(4)A payment made to a lienholder under this section does not disentitle him to claim for any balance remaining payable to him and to be paid therefor from money retained under section 15.
R.S., c.142, s.15
When lien discharged
17Payment of the amounts required to be retained under sections 15 and 16 may be made so as to discharge every lien or charge under this Act in respect thereof
(a) on the expiration of sixty days after the completion or abandonment of the contract, if a claim of lien has not been filed or action commenced as provided herein, or
(b) on the expiration of the ninety days mentioned in section 27 if action has not been commenced within that period as mentioned in that section.
R.S., c.142, s.16; 1965, c.27, s.1
Effect of payment to lienholder
18If an owner, contractor or sub-contractor makes a payment to a lienholder for or on account of a debt due the lienholder for work done or material furnished to be used as mentioned in section 4, for which debt the owner, contractor, or sub-contractor is not primarily liable, and within three days thereafter gives written notice of the payment to the person primarily liable, or his agent, the payment shall be deemed to be a payment on the contract with the person primarily liable, but not so as to affect the percentage to be retained by the owner as provided by section 15 or any further deduction required by section 16.
R.S., c.142, s.17
Abandonment of contract
19Subject to subsection 4(2), a lienholder is entitled to enforce his lien notwithstanding the non-completion or abandonment of the contract by a contractor or sub-contractor under whom he claims.
R.S., c.142, s.18
FILING OF LIEN
Claim of lien
20(1)A claim of lien upon any land or interest therein may be filed in the proper registry office.
20(2)A claim of lien shall state
(a) the name and address of
(i) the lienholder,
(ii) the owner, or the person whom the lienholder or his agent believes to be the owner of the land to be charged, and
(iii) the person for whom, and upon whose credit, the work was or is to be done, or the material was or is to be furnished;
(b) the date upon which the last work was done or the last material furnished, or, where the claim is filed before the work or furnishing of material is completed, the time or period within which the same is to be done or furnished;
(c) a short description of the work done, or to be done, or of the material furnished, or to be furnished;
(d) the sum claimed as due or to become due;
(e) a description, sufficient for identification, of the land or interest therein to be charged; and
(f) the date of expiry of the period of credit, if any, given by the lienholder.
20(3)A claim of lien may be made in one of the forms prescribed by regulation and shall be verified by the affidavit of the lienholder or of his agent or assignee having personal knowledge of the matters required to be verified, which affidavit may be in the form prescribed by regulation.
20(4)Where an affidavit of verification is made by an agent or assignee, it shall state that he has a personal knowledge of the matters verified.
20(5)Every claim of lien shall show an address for service on the lienholder.
20(6)A lienholder may at any time change his address for service by notifying the owner and the registrar of deeds in writing, and thereupon the registrar shall note the change of address upon the claim of lien.
20(7)When it is desired to file a claim of lien against a railway, it is sufficient description of the land of the railway company to describe it as the land of the railway company; and every such claim shall be filed in the registry office of every county within which the lien is claimed to have arisen.
R.S., c.142, s.19; 1965, c.27, s.1, 2, 7, 8; 1980, c.30, s.1
Joinder of issue
21(1)A claim of lien may include claims against different lands of the same owner.
21(2)Any number of persons claiming liens upon the same land may unite in making a claim, but each lien shall be verified as provided in section 20.
R.S., c.142, s.20
Substantial compliance, amendment
22(1)Substantial compliance with sections 20 and 21 is sufficient; and no lien is invalidated by failure to comply with any requirement of those sections unless in the opinion of the judge who tries the action, the owner, contractor, sub-contractor, mortgagee, or some other person is prejudiced thereby, and then only to the extent to which he is so prejudiced.
22(2)Nothing in this section dispenses with the requirement of filing a claim of lien.
22(3)Where, in the opinion of the judge, some person has been prejudiced by failure on the part of the lienholder or his agent to comply with one or more of the provisions of sections 20 and 21, the judge may allow such amendments to be made as are required to comply with those sections and to permit the action to be tried, without prejudice to any person.
R.S., c.142, s.21; 1965, c.27, s.2
Filing claim of lien by Registrar, settlement
23(1)The Registrar, upon receipt of the proper fee shall file a claim of lien describing it as a “Mechanics’ Lien” and shall index the claim of lien in a book to be kept and entitled “Mechanics’ Lien Index” and the lien shall appear as an encumbrance against the land or the estate or interest in land therein described.
23(2)Repealed: 1980, c.30, s.2
23(3)If a claim for lien is settled without an action, the owner is liable to the lienholder for the fees disbursed under this section, and also for a solicitor’s fee equal to ten per cent of the sum claimed, but not to exceed twenty-five dollars.
R.S., c.142, s.22; 1965, c.27, s.2, 9, 10; 1979, c.41, s.77; 1980, c.30, s.2
Time of filing lien
24(1)A claim of lien for wages may be filed at any time before the expiration of thirty days from the doing of the last work for which the wages are owing and the lien claimed.
24(2)A claim of lien for services may be filed at any time before the expiration of thirty days from the completion of the services.
24(3)A claim of lien for material may be filed at any time before the expiration of sixty days from the furnishing of the last material the price of which is claimed for.
24(4)A claim of lien by a contractor or sub-contractor may, in cases not otherwise provided for, be filed at any time before the expiration of sixty days from the completion or abandonment of the contract or sub-contract as the case may be.
24(5)Where a contract is under the supervision of an architect, engineer or other person, upon whose certificates payments are to be made, a claim of lien by the contractor may be filed within the time mentioned in subsection (4) or within seven days after the architect, engineer, or other person has given or has, after application in writing to him by the contractor, refused or neglected for three days to give, a final certificate.
R.S., c.142, s.23; 1965, c.27, s.1
Expiry of unregistered lien
25Every lien in respect of which a claim of lien is not filed ceases to exist on the expiration of the time herein limited for the filing thereof.
R.S., c.142, s.24; 1965, c.27, s.1, 2
Effect of filing
26Where a claim of lien is filed, the lienholder shall be deemed a purchaser pro tanto.
R.S., c.142, s.25; 1965, c.27, s.1
Expiry of registered lien
27Every lien in respect of which a claim of lien has been filed ceases to exist on the expiration of ninety days from the filing of the claim of lien or after the expiry of any period of credit mentioned in the claim of lien unless, in the meantime, an action is commenced in which the lien may be enforced, and a certificate of pending litigation in respect thereof issued from the court in the form prescribed by regulation is registered in the proper registry office.
R.S., c.142, s.26; 1965, c.27, s.1, 2; 1986, c.4, s.33
Discontinuance of action
28(1)Where a certificate of pending litigation hereunder is registered, a clerk of the court in which the action was commenced may, upon application supported by an affidavit, issue a certificate verifying
(a) that the action has been discontinued, or
(b) that, in so far as the land affected by the lien involved in the action is concerned, the action has been dismissed or otherwise finally disposed of, that no appeal therefrom has been entered, and that the time limited for an appeal has expired.
28(2)A certificate issued under subsection (1) may be registered in the proper registry office and when so registered discharges
(a) every lien sought to be enforced in the action, and
(b) every certificate of pending litigation registered in relation to the action.
28(3)When a certificate issued under subsection (1) is registered in the proper registry office under this section, the registrar shall make due notation in his Mechanics’ Lien Index.
R.S., c.142, s.27; 1965, c.27, s.11; 1982, c.38, s.1; 1986, c.4, s.33
Assignment of rights of lienholder
29The rights of a lienholder may be assigned by an instrument in writing, and, if not assigned, pass upon the death of the lienholder to his personal representative.
R.S., c.142, s.28
Certificate of discharge, order vacating lien
30(1)A lien may be discharged by a certificate of discharge substantially in the form prescribed by regulation, signed by the lienholder, or by his agent duly authorized in writing, verified by affidavit, and filed in the registry office where the claim of lien is filed.
30(2)Where the amount claimed by the lienholder, or any part thereof, has been paid, the certificate of discharge shall acknowledge receipt of the amount so paid.
30(3)The certificate of discharge shall be received and filed by the Registrar and shall be indexed in the Mechanics’ Lien Index and a notation of the certificate shall be made opposite the entry of the claim of lien to which it refers.
30(4)Where the certificate required by section 27 has not been registered or filed within the prescribed time, and an application is made to vacate the filing of a claim of lien after the time for registration or filing of such certificate, the order vacating the lien may be made ex parte upon production of the certificate of the proper registrar certifying the facts entitling the applicant to such order.
R.S., c.142, s.29; 1965, c.27, s.1, 12
Effect of lienholder taking security, extension of time by lienholder
31(1)The taking of security or a promissory note or bill of exchange for, or the taking of any other acknowledgment of, the amount of a lien or any part thereof, or the extension of the time for the payment thereof, or the taking of proceedings for the recovery of a personal judgment therefor, or said judgment, does not merge, prejudice, or destroy the lien unless the lienholder agrees in writing that it has that effect.
31(2)Where a promissory note, bill of exchange or other security, taken or accepted as mentioned in subsection (1), is discounted or negotiated by the lienholder, the discounting or negotiation does not prejudice or destroy the lien; but the lienholder shall retain the lien for the benefit of the holder of the promissory note, bill of exchange, or other security.
31(3)Where a lienholder extends the time for payment of indebtedness in respect of which he has filed a claim of lien, subsection (1) does not apply either to the lien or otherwise to the case, unless the lienholder commences an action to enforce the lien, and registers a certificate of pending litigation, within the time prescribed in this Act, and, in such case, he shall take no further proceedings in the action until the expiration of the period by which the time is extended; but where a lienholder gives an extension of time as mentioned in this subsection, if any other person commences an action to enforce a lien against the same land, the lienholder may, in such action, prove and obtain payment of the amount of the indebtedness as if no extension had been given.
R.S., c.142, s.30; 1965, c.27, s.1; 1986, c.4, s.33
LIENHOLDER’S RIGHT TO
INFORMATION
Lienholder's right to information
32(1)A lienholder may, in writing, at any time demand of the owner or his agent
(a) the terms of the agreement with the contractor in respect of which the work has been, or is to be, performed or the material has been, or is to be, furnished;
(b) the state of the accounts between the owner and the contractor, including the amount already paid under the agreement and the amount due and unpaid thereunder;
(c) the production for inspection of the contract or agreement, if it is in writing.
32(2)If the owner or his agent
(a) refuses, or neglects within a reasonable time to inform the lienholder of the amount already paid, and the amount due and unpaid thereunder, or
(b) intentionally or knowingly falsely states the terms of the agreement or the amount already paid or the amount due and unpaid thereunder,
and if the lienholder sustains loss by reason of the refusal or neglect or false statement, the owner is liable to him for the amount of the loss and section 43 applies.
32(3)A lienholder may, in writing, at any time demand of a mortgagee or unpaid vendor or of the agent of either of them
(a) the terms of any mortgage on, or agreement for the sale of, the land in respect of which the work has been, or is to be performed, or the material has been or is to be, furnished, and
(b) a statement showing the amount owing on the mortgage or agreement.
32(4)If the mortgagee or vendor or the agent
(a) refuses or neglects within a reasonable time to inform the lienholder
(i) of the terms of the mortgage or agreement for sale, and
(ii) of the amount owing on the mortgage or agreement, as the case may be; or
(b) intentionally or knowingly falsely states the terms of the mortgage or agreement or the amount owing on the mortgage or agreement;
and if the lienholder sustains loss by reason of the refusal or neglect or false statement, the mortgagee or vendor is liable to him for the amount of the loss in an action therefor, or in any action for the enforcement of a lien, when section 43 shall apply.
32(5)A lienholder may at any time, in writing, demand of a contractor or sub-contractor
(a) the terms of any agreement with the owner, contractor, or sub-contractor, to which the person of whom the demand is made is a party, in respect of which agreement the work has been or is to be performed or the material has been or is to be furnished, and
(b) the state of the accounts, thereunder, between the owner and the contractor, or between the contractor and any one or more sub-contractors, or between any sub-contractor and any other sub-contractor, including the amount already paid on any agreement and the amount due and unpaid thereunder.
32(6)If the contractor or sub-contractor of whom the demand is made
(a) refuses, or neglects within a reasonable time to inform the lienholder
(i) of the terms of the agreement, and
(ii) of the amount already paid and the amount due and unpaid thereunder, or
(b) intentionally or knowingly falsely states the terms of the agreement or the amount already paid or the amount due and unpaid thereunder,
and if the lienholder sustains loss by reason of the refusal or neglect or false statement, the contractor or sub-contractor is liable to him for the amount of the loss in an action therefor, or in any action for the enforcement of a lien when section 43 shall apply.
R.S., c.142, s.31
ENFORCEMENT OF LIEN
Enforcement of lien in court
33A lien may be enforced by action in the court, according to the ordinary procedure of that court, except where the same is varied by this Act.
R.S., c.142, s.32; 1966, c.36, s.1; 1972, c.45, s.4; 1979, c.41, s.77
Repealed
34Repealed: 1992, c.84, s.1
R.S., c.142, s.33; 1987, c.6, s.59; 1992, c.84, s.1
Repealed
35Repealed: 1992, c.84, s.2
R.S., c.142, s.34; 1992, c.84, s.2
Repealed
36Repealed: 1992, c.84, s.3
R.S., c.142, s.35; 1992, c.84, s.3
Repealed
37Repealed: 1992, c.84, s.4
R.S., c.142, s.36; 1992, c.84, s.4
Joinder of actions
38Any number of lienholders claiming liens on the same land may join in an action, and an action brought by a lienholder or person claiming a lien shall be deemed to be brought on behalf of all other lienholders on the land in question whose time to bring action has not expired.
R.S., c.142, s.37
Repealed
39Repealed: 1992, c.84, s.5
R.S., c.142, s.38; 1992, c.84, s.5
Notice of trial
40The party who sets the action down for trial shall, at least ten clear days before the day fixed for the trial, unless the judge directs that a shorter notice may be given, serve a notice of trial, which may be according to the form prescribed by regulation, on all lienholders who have filed their liens as required by this Act, and on all other persons having a registered charge, encumbrance or claim on the land affected by the lien, who are not parties or who, being parties, appear personally in the action; and the service on those not parties shall be personal, unless otherwise directed by the judge, who may direct in what manner the notice of trial may be served.
R.S., c.142, s.39; 1965, c.27, s.1; 1992, c.84, s.6
Lienholder deemed party to action
41It is not necessary to make other lienholders parties defendant to the action, but every lienholder served with the notice of trial shall for all purposes be deemed a party to the action.
R.S., c.142, s.40
Statement of claim of lienholder other than plaintiff
42A lienholder not a plaintiff in the action shall, within six days after being served with the notice of trial, file in the Court a statement showing the grounds and particulars of his claim, and, if he fails so to do he is, unless otherwise ordered by the judge, precluded from asserting his lien.
R.S., c.142, s.41
Duties of judge at trial
43(1)At the trial of the action the judge shall proceed to determine all questions that arise therein, or that are necessary to be tried to dispose of the action completely and, subject to section 42, to adjust the rights and liabilities of the persons appearing before him or upon whom the notice of trial was served.
43(2)At the trial the judge shall take all accounts, make all inquiries, give all directions, and do all things necessary to try and otherwise finally dispose of the action and of all matters, questions and accounts arising in the action, and, subject to section 42, to adjust the rights and liabilities of and give all necessary relief to all parties to the action or who have been served with the notice of trial.
R.S., c.142, s.42
Orders for sale
44(1)In the judgment the judge may order that the estate or interest charged with the lien be sold allowing, however, a reasonable time for advertising the sale, and the sale shall be by the sheriff unless otherwise ordered and shall be in any manner permitted by the Enforcement of Money Judgments Act.
44(2)The judge may direct the sale of any materials and authorize the removal thereof.
44(3)For conducting a sale, the sheriff shall be allowed the sum that the judge awards.
R.S., c.142, s.43; 1986, c.4, s.33; 2013, c.32, s.20
Distribution of proceeds of sale, order for conveyance of property
45(1)Where a sale is had, the money arising therefrom shall be paid into court and the judge shall make a report on the sale and therein direct to whom the money in court shall be paid, and may add to the claim of the person conducting the sale his actual disbursements incurred in connection therewith; and, where sufficient to satisfy the judgment and costs is not realized from the sale, he shall certify the total amount of the deficiency and the proportion thereof falling upon each person entitled to recover.
45(2)The judge may make all necessary orders for the completion of the sale, and for vesting the property in the purchaser.
R.S., c.142, s.44
Deficiency after sale
46Every judgment in favour of lienholders shall adjudge that the person or persons personally liable for the amount of the judgment shall pay any deficiency that may remain after sale of the property adjudged to be sold; and, in any case where on such sale sufficient to satisfy the judgment and costs is not realized therefrom, the deficiency may be recovered against such person by the usual process of the court.
R.S., c.142, s.45
Failure to establish valid lien
47Where a claimant fails to establish a valid lien, he may nevertheless recover a personal judgment against any party to the action for such sum as may appear to be due to him, and that he might recover in an action against such party.
R.S., c.142, s.46
Consolidation of actions
48Where more than one action is brought to realize liens in respect of the same land, the judge may, on the application of a party to any one of the actions, or on the application of any other person interested, consolidate all the actions into one action, and may give the conduct of the consolidated action to such plaintiff as he may deem fit.
R.S., c.142, s.47
Order respecting carriage of action
49The judge may hear the application of a lienholder entitled to the benefit of the action and, after due notice to the other claimants, may make an order giving that lienholder the carriage of the proceedings, and the lienholder shall thereafter for all purposes be deemed to be the plaintiff in the action.
R.S., c.142, s.48
Apportionment of lien by judge
50A judge may apportion equitably against any number of lands the amounts included in any claim or claims of liens under subsection 21(1).
R.S., c.142, s.49
Payment into court, order vacating lien
51(1)A judge may at any time receive security for, or payment into court of, the amount claimed in a filed claim of lien together with such costs as the judge may fix; and the judge may thereupon order the filing of the claim of lien be vacated.
51(2)A judge may order vacated the filing of a claim of lien upon any other proper ground.
51(3)Money paid into court or any security given in an action,
(a) takes the place of the land against which the claim of lien was filed, and
(b) subject to subsection (4), and notwithstanding that no certificate has been filed as required by section 27 is subject to the claim of every person who has filed a lien and, before the time limited by section 27 has expired, has commenced an action,
to the same extent as if the money had been realized by a sale of the property in an action to enforce the lien.
51(4)The amount found by the judge to be owing to the person, the filing of whose claim of lien has been vacated under this section, is a first charge upon the money or security so paid in or given.
51(5)Where a judge orders a filing of a claim of lien to be vacated, the order shall forthwith be filed by the owner in the proper registry office.
R.S., c.142, s.50; 1965, c.27, s.1, 2
Order for production of documents
52A judge may, on a summary application at any time before or after an action is commenced for the enforcement of a lien, make an order requiring the owner or his agent, the mortgagee or his agent, the unpaid vendor or his agent, or the contractor or sub-contractor, as the case may be, of whom the demand is made under section 32, to produce and allow any lienholder to inspect any such agreement, mortgage, or agreement for sale, and may make such order as to the cost of the application and order as he deems just.
R.S., c.142, s.51
When action deemed discontinued, order for continuance
52.1(1)An action to enforce a lien shall be deemed to be discontinued one year after the action is commenced unless
(a) the action has been set down for trial, or
(b) an application has been made to a judge of The Court of Queen’s Bench of New Brunswick for an order continuing the action and a copy of the notice of application has been served on the defendant to the action.
52.1(2)In ordering the continuance of an action, the judge may impose such terms and conditions and give such directions as the judge considers appropriate for the continuation of the action.
1982, c.38, s.2; 1992, c.84, s.7
NEW TRIAL
Repealed: 1992, c.84, s.8
1992, c.84, s.8
Repealed
53Repealed: 1992, c.84, s.9
R.S., c.142, s.52; 1992, c.84, s.9
Repealed
54Repealed: 1992, c.84, s.10
R.S., c.142, s.53; 1979, c.41, s.77; 1992, c.84, s.10
COSTS
Limitation respecting costs, tariff of costs
55(1)The costs of the action awarded by the judge shall not, exclusive of actual disbursements, exceed in the aggregate an amount equal to the costs recoverable in a regular court action or twenty-five per cent of the amount found actually due, whichever is the greater, and shall be apportioned and borne as the judge directs, but in making such apportionment he shall have regard to the actual service rendered by or on behalf of the parties respectively.
55(2)The Lieutenant-Governor in Council may fix a tariff of costs applicable to Mechanics’ Lien proceedings.
R.S., c.142, s.54; 1979, c.41, s.77
Costs against plaintiff
56Where costs are awarded against the plaintiff or other person claiming a lien, the costs shall not exceed in the aggregate an amount equal to twenty-five per cent of the claim of the plaintiff and other claimants, besides actual disbursements, and shall be apportioned and borne as the judge directs.
R.S., c.142, s.55
Least expensive course to be followed
57Where the least expensive course is not taken by a party under this Act the costs allowed to him shall in no case exceed what would have been incurred if the least expensive course had been taken.
R.S., c.142, s.56
Power of judge respecting costs
58(1)Notwithstanding anything contained in the Judicature Act, the costs of and incidental to all actions, applications and orders commenced or made under this Act are in the discretion of the judge, subject always to the limitations provided for by sections 55 and 56.
58(2)Repealed: 1979, c.41, s.77
R.S., c.142, s.57; 1979, c.41, s.77
Special costs
59Where a lien is discharged or vacated under section 30 or section 51 or when in an action judgment is given in favour of or against a claim for a lien, the judge may allow a reasonable amount for costs of drawing and registering the lien or for vacating the filing thereof.
R.S., c.142, s.58; 1965, c.27, s.2
Fees or commissions respecting money paid into court
60No fees or commissions are payable on any payment of money into court or on obtaining money out of court in respect of a claim of lien.
R.S., c.142, s.59
PROCEDURE
Repealed: 1992, c.84, s.11
1992, c.84, s.11
Repealed
61Repealed: 1992, c.84, s.12
R.S., c.142, s.60; 1979, c.41, s.77; 1992, c.84, s.12
FORMS
1992, c.84, s.13
Regulations respecting forms
62The Lieutenant-Governor in Council may make regulations prescribing forms required under this Act and those forms or ones to like effect may be adopted in all proceedings under this Act.
R.S., c.142, s.61; 1973, c.74, s.54
N.B. This Act is consolidated to December 1, 2019.