Under the previous Builders Lien Act, RSBC 1979, c. 40, contractors and subcontractors who supplied material only were separately defined as “material men”. In the current Builders Lien Act, S.B.C. 1997, c.45 (the “BLA”), however, there is no longer such a distinction. The definitions of both “contractor” and “subcontractor” include those persons who supply material but do not provide any work to an improvement.
Despite the inclusive definition, there does remain a distinction in practical terms: the contractor or subcontractor who only supplies materials is not on site as often as the contractor or subcontractor who provides work to the improvement itself. This creates a potential for the material supply contractor or subcontractor to be at a disadvantage in calculating the time in which to file a claim of lien.
There are steps that a material supply contractor or subcontractor can take to assist it in retaining its rights under the BLA:
- Obtain All Notice of Completion: The BLA specifically allows a contractor or subcontractor to put the payment certifier on notice that it requires a copy of all Notices of Completion. If a contractor makes a request in writing, the payment certifier must then provide a copy of all Notices within 7 days of issuance. The benefit is that you have less risk of the time for filing a claim of lien expiring without your knowledge.
- Confirm Whether a Particular Contract is Completed: The BLA also provides that a contractor or subcontractor may request that the payment certifier determine whether a particular contract or subcontract is complete. The payment certifier has 10 days from the date of the request to make such a determination.
- Ensure Delivery of Materials is Correctly Documented: In order to successfully prove a builders lien, a contractor or subcontractor who has supplied materials must prove that the materials were “delivered to the land on which the improvement is located and [were] intended to become part of the improvement”. The BLA states that a signed acknowledgment of receipt of the material at a named address is proof, in the absence of evidence to the contrary, that the material was delivered to the land described by the address. This point is especially important where a project is being developed on more than on parcel of land. There have been cases where the Court has refused to find a builders lien where the material subcontractor was not able to prove which materials were supplied to each of the separate parcels of land on which a project was developed.