How to Remove a Lien From Your Property Title in Alberta

Finding a builders' lien on your title is stressful, especially if you are about to sell or refinance. The good news is that the Prompt Payment and Construction Lien Act sets out several routes to get a lien off title, and which one fits depends on whether the claim is valid, paid or disputed.

This article walks through those routes in plain language. It covers lien discharge, notice to commence an action, payment into court, and other court orders. It is general information, and the right route for you depends on your facts.

This article covers the law of Alberta.

First, check whether the lien still exists

Some liens have already ended by operation of law. A lien not registered within the time limit ceases to exist. A registered lien also ceases to exist unless, within 180 days from the date it is registered, the claimant commences an action and registers a certificate of lis pendens. The exception is where the court has ordered the lien removed from title because security was given or money was paid into court under section 27 or section 48(1): the lien as a charge on that money or security does not cease merely because no lis pendens was registered or no action was started within 180 days.

If you think a lien has expired, the Registrar must cancel it on proof satisfactory to the Registrar that the lien has ceased to exist. Gather the registration date and any proof about what was or was not filed, and have a lawyer confirm the dates before you rely on this route.

Route 1: Pay the claim and get a discharge

If the debt is valid and you settle it, the lienholder can discharge the lien. The Registrar must cancel a lien, in whole or in part, on a prescribed-form notification from the lienholder or agent that the lien has been satisfied. A partial cancellation needs a form describing the satisfied part.

The discharge is made on Form 14 under the Prompt Payment and Construction Lien Forms Regulation. When you settle, agree in writing that the lienholder will sign the discharge, and ideally make payment and discharge happen together.

Route 2: Make the lienholder sue or lose the lien

An owner or other affected person can serve written notice on the registered lienholder to commence an action. If the lienholder does not start an action and register a certificate of lis pendens within 30 days of service, the lien ceases to exist.

Service is by personal service, single registered mail to the address for service in the statement of lien, or delivery to that address. This route does not apply where security is given or payment is made into court and the lien is removed from title.

Route 3: Security or payment into court

If you dispute the claim but need the title cleared, you can ask the court to move the lien off the land. On application, the court may order a lien's registration removed from title where security is given or payment is made into court for the claim amount, the statutory maximum, or a lesser amount the court sets, plus costs. It may also do so where the relevant lien fund was paid out, or on any other proper ground.

The money or security then stands in place of the land and remains subject to the removed lienholder's claim. Once a statement of lien is registered, the owner, or an authorized mortgagee, may give security or pay into court the major lien fund, minor lien fund, or both.

After a court application of this kind is served, a party may serve the lienholder with a notice to prove the lien. The lienholder has 15 days to file an affidavit with detailed particulars, and if it does not, or within any further period the court orders, it loses its lien.

Route 4: A court order

The Registrar must cancel the lien and any lis pendens certificate on a certified court order cancelling the lien. The same applies on a court clerk's certificate that the amount was paid into court or the land was sold to satisfy the lien.

If a lawsuit on the lien has dragged on, an interested party may apply to vacate the certificate of lis pendens and discharge the lien where no trial has been held within 2 years from registration of the certificate. How such an application turns out depends on your situation, so it is worth confirming with a lawyer.

What to do next

• Get a current copy of your title and the registered lien, and note the registration date.
• Identify who registered it and the address for service shown in the statement of lien.
• Decide whether you agree the debt is owed, since that points toward discharge or payment.
• If you dispute it, ask a lawyer whether notice to commence an action or security into court fits your situation.
• Keep proof of every payment, notice and the way notice was served.
• Check with your lender and your buyer's lawyer about timing if a closing date is near.

Frequently asked questions