THIS IS IN BC! I have a drywall company that was hired by…

Question

THIS IS IN BC!
I have a drywall company that was hired by a general contractor who I had to
fire. The drywall company has:
1) filed a lien on my house well past the 45 day time limit
and
2) just today served me with an action on the unpaid portion of his bill which
the contractor has not paid. He has named the contractor and myself in this
small claims action.

I need to know how to have the lien removed since it is not within the allowable
term as stated in the BC builders act and whether that can be linked to the
small claim action.

My assumption is that the lien has to be dealt with separately but I need a
definitive answer.

Tom B. · Accepted Answer

Tom Bulmer :

You are correct.

Tom Bulmer :

You have a couple of avenues of approach.

Customer:

thx

Tom Bulmer :

Firstly, even a good lien cannot be secured by an action in Small Claims. It is
necessary within one year of the lien for the claimant to start an action in
Supreme Court. Very expensive.

Tom Bulmer :

More....

Tom Bulmer :

The fact the lien is faulty is good and bad. The Small Claims action is a
completely separate deal. That is an action in debt. They can only sue in Small
Claims on a contract. Do you think you owe any money?

Customer:

nope. Here's how it worked:

Customer:

the general contractor was incompetent. I fired them. I paid all their bills
MINUS the 10% holdback on the complete job. 10% equalled the amount of their
"management" fee. As far as I know, they paid out all the other subcontractors
except this poor guy.

Tom Bulmer :

Is the general a business still alive?

Customer:

yes

Customer:

did you mean General Contractor?

Tom Bulmer :

Yes. Will your hold back pay off the poor guy? Do you have financial loss as a
result of the bad general?

Customer:

yes. the general filed a small claims on me. the amount (10%) I held back was
approx $35,000. Small claims only allows 25k. Thats what they claimed against
me. I counterclaimed with an amount 52k for repairs, expenses etc capped at 25k
against them. They did not reply to my counter, so just this week I applied to
the court to 1) have their claim dismissed and 2) judgement in favour of me.

Tom Bulmer :

You sound savvy. So, both you and the general have capped your claims at $25K.
The general has defaulted so you are seeking judgment and you are left with a
law suit from poor guy. You have applied to have the general's claim dismissed.
That may not work but you can seek default judgment on your behalf. What is poor
guy owed?

Customer:

1800

Customer:

he has named the general and me in his small claims

Customer:

I'm totally prepared to make a reply to his small claims. It's the lien I really
want to go away

Tom Bulmer :

Well then you can get out of this in a number of ways. Again, you may get a
default against the general for not playing by the rules. That will probably not
extinguish his claim against you unless he screwed up somehow with his claim.
That would mean your worst day is that you have equal judgments against each
other. The result is zero. Having said that, once you have judgment in default,
the general can apply to have it overturned. To do so, he must prove that he has
a good defence and that his lack of compliance with the rules was not intended.
It is not a happy road depending on the judge he may get. More now on the
lien....

Customer:

I had some advice to have a notary send him a notice of action (? terminology?)
I think its 15 or 21 days to make an action in court or not. There's no way he's
going to take it to supreme court for 1800.00 but will that make the lien go
away?

Customer:

(remember the lien was totally out of range the 45 days builders-act)

Tom Bulmer :

You are liable to poor guy. But, yes, you can make a demand to him that he must
start a Supreme Court action within 30 days or the lien is over. You can also
just wait a year and then the lien in over Or, you can call him and explain
reality. Keep in mind that a lien is just an irritation unless you are planning
on selling or refinancing the property. It is just a warning to others that
there is a claim from a contractor. More.....

Customer:

I'm refinancing soon so I must make it go away

Customer:

So the notary advice is sound.

Tom Bulmer :

You can have a lawyer or notary send him a demand letter (I don't think a notary
can) but you can do that yourself. The easy way of making this go away is a
phone call to poor guy. Since you are liable to him anyway, pay him $1800 upon
him giving you a letter that is registrable at land titles to remove the lien.
He gives you the letter at the same time you give him the $1800. Otherwise, you
demand that he start a Supreme Court action and if he does not the lien goes
away.

Tom Bulmer :

The other option is to agree in your Reply that someone owes him $1800 and you
pay that amount into court until the matter is resolved. Then you tell poor guy
to write that letter!

Customer:

as much as I would like to be the "nice guy" - he decided to press ahead and
slap a lien on my property after many civil conversations. those conversations
were about the general owing him the $$ and how I could help him collect. so....
no nice guy this time. I'm going to have to force him though the demand letter.

Tom Bulmer :

Fettering title on land is a serious thing. You will have damages and
potentially serious damages if that bad lien is not removed. The problem is that
you have to spend money to get a court to agree with you to have the lien
removed because it is bad. If it expires as described above, it is a simple
matter of you showing up at Land Titles and making a one page application

Customer:

fettering?

Tom Bulmer :

That means screwing with someone's title :)

Customer:

Ah so...

Tom Bulmer :

If you have a problem refinancing because of a bad lien, poor guy is liable to
you.

Customer:

there is ZERO chance he'll want to take it to real court. why would I have heard
a figure on the demand of 15 or 21 days?

Tom Bulmer :

If I was advising him, I would suggest he remove the lien and continue in Small
Claims. He is going to get paid by the general contractor or you. He has nothing
to lose except keeping a bad lien on your property. His best bet is to get a
judgment against you then he can register that and sell your property. A lien
gives him no power but just an inconvenience to you.

Customer:

of course that is if you are rational... he hasn't been IRrational... but not
the brightest bulb

Customer:

Okay - onto small claims

Customer:

should we start a second question?

Customer:

it seems fair that these are two different subjects and you deserve a second
bill... no?

Tom Bulmer :

Go ahead I am looking something up for you.

Customer:

I'll ACCEPT and resubmit the small claims querie

THIS IS IN BC! I have a drywall company that was hired by…

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