1998 Legislative Session: 3rd Session, 36th Parliament
Certified correct as passed Third Reading on the 23rd day of July, 1998
Ian D. Izard, Law Clerk
HONOURABLE MIKE FARNWORTH
MINISTER OF EMPLOYMENT AND INVESTMENT AND
MINISTER RESPONSIBLE FOR HOUSING
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 The Builders Lien Act, S.B.C. 1997, c. 45, is amended by adding the following section:
1.1 Nothing in this Act extends to a highway, as defined by the Highway Act, or to any improvement done or caused to be done on it by a municipality, the Minister of Transportation and Highways, the BC Transportation Financing Authority or its subsidiaries or any other public body designated by regulation.
2 Section 3 is amended by adding the following subsection:
(3) Subsection (1) does not apply to an improvement on land owned by the government.
3 Section 5 (8) (a) is repealed and the following substituted:
(a) if it is an owner, the government, a government corporation as defined in the Financial Administration Act or any other public body designated, by name or by class, by regulation, or .
4 Section 32 is repealed and the following substituted:
Priority of secured lender
32 (1) Subject to subsection (2), the amount secured in good faith by a registered mortgage as either a direct or contingent liability of the mortgagor has priority over the amount secured by a claim of lien.
(2) Despite subsection (1), an advance by a mortgagee that results in an increase in the direct or contingent liability of a mortgagor, or both, under a registered mortgage occurring after the time a claim of lien is filed ranks in priority after the amount secured by that claim of lien.
(3) In a proceeding for the enforcement of a claim of lien,
(a) the court may order the sale of mortgaged land at an upset price of at least the amount secured by all registered mortgages that have priority over the claim of lien, court ordered costs and the costs of the sale, and
(b) the amount secured by any registered mortgages must be satisfied out of the proceeds of the sale in the order of their priorities and in priority over the claim of lien to the extent provided under this section.
(4) A mortgagee who applies mortgage money in payment of a claim of lien that has been filed is subrogated to the rights and priority of the lien claimant to the extent of the money applied.
(5) Despite subsections (1) and (2) or any other enactment, if one or more claims of lien are filed in a land title office in relation to an improvement, a mortgagee may apply to the court for an order that one or more further advances under the mortgage are to have priority over the claims of lien.
(6) On an application by a mortgagee under subsection (5), the court must make the order if it is satisfied that
(a) the advances will be applied to complete the improvement, and
(b) the advances will result in an increased value of the land and the improvement at least equal to the amount of the proposed advances.
(7) An amount secured in good faith by a registered right to purchase land has the same priority over the amount secured by a claim of lien as has the amount secured by a registered mortgage under subsections (1) and (2).
(8) For the purposes of this Act, the vendor under a registered right to purchase is deemed to be a mortgagee under a registered mortgage, and the amount secured in good faith by the registered right to purchase is subject to this section as though the amount had been secured in good faith under a registered mortgage.
5 Section 36 (2) is amended by striking out "section 32 (1)" and substituting "section 32 (3)".
6 (1) Sections 1 and 3 to 5 come into force by regulation of the Lieutenant Governor in Council.
(2) Section 2 is deemed to have come into force on February 1, 1998 and is retroactive to the extent necessary to give it effect on and after that date.
(3) A claim of lien that was filed under the Builders Lien Act, S.B.C 1997, c. 45, on or after February 1, 1998 and before section 2 of this Act received Royal Assent is unenforceable against the government as owner of the land or the government's interest as owner of the land on which the improvement was made unless the improvement was done at the express request of the government.
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Copyright © 1998: Queen's Printer, Victoria, British Columbia, Canada