Owner-developer has to pay full amount of lien (not just the proportionate share relating to the individual strata lot) to discharge lien – section 90 not applicable


In W Redevelopment Group Inc. v Allan Window Technologies Inc., the court held that the owner-developer could not invoke section 90 of the Strata Property Act to discharge liens against strata lots upon payment of reduced security. W Redevelopment, the head contractor for the Woodward’s development in Vancouver, applied to cancel multiple claims of builders lien filed by Allan Window Technologies Inc., a subcontractor retained to install windows and doors with respect to the project.

Several liens filed by Allan Window against certain air space parcels in the development were discharged after W Redevelopment secured those liens by paying the full amount of the liens into its solicitors’ trust account. However, an issue arose with respect to the amount of security to be posted by W Redevelopment and a related company, the owner-developer of the project, to remove the claims of lien filed by Allan Window against some of the strata lots in the development.

Allan Window supplied work and materials to all strata lots in the development. Although it asserted a builders lien against all strata lots for the full amount of these subcontracts, it liened only those strata lots still owned by the original owner-developer at the time of filing. W Redevelopment and the owner-developer argued that those liens should be discharged pursuant to section 90 of the Strata Property Act upon payment of a reduced amount of security. This section provides that “an owner” can apply to remove the lien filed against its strata lot on payment into the court of that strata lot’s share of the liened amount, proportionate to the unit entitlement of that strata lot compared to the total unit entitlement of all strata lots. Having considered the definitions of “owner” and “owner developer” in the Strata Property Act and the principles of statutory interpretation, the Court rejected this argument. The Court concluded that, despite the apparent plain wording of that section, the legislature intended to limit the application of section 90 to owners who purchased strata lots from the owner-developer, and section 90 was not available to the owner-developer. The owner-developer would be required, in this case, to pay into court the full amount of the claim of lien to obtain a discharge against any one strata lot.