Does Remedial or Warranty Work Extend the Lien Filing Deadline in Alberta?
When it comes to construction liens in Alberta, timing is critical. Missing the filing deadline can mean losing lien rights entirely. Under the Prompt Payment and Construction Lien Act (PPCLA), the rules are clear: remedial work or warranty work does not extend the lien filing period. This principle has significant implications for owners, contractors, and subcontractors. Our Calgary Construction Lawyers at OP Lawyers LLP regularly advise contractors and owners on these deadlines to protect their rights.
Consider a residential construction example. A general contractor hires a subcontractor to install windows in a new home. The subcontractor completes the installation on June 1, 2025. On June 10, the owner or general contractor discovers that the caulking was improperly done and asks the subcontractor to return and fix the deficiency. Because the work is covered under a one-year warranty, the subcontractor returns and corrects the caulking on June 20, 2025.
If the subcontractor is not paid, they have the right to register a lien on the property. Under the PPCLA, the timeline to register a lien relating to most improvements is 60 days from the date of completion of the works. The key question becomes: Does the clock start on June 1 or June 20?
When Does the Clock Start?
Under section 34 of the PPCLA, the lien period begins on:
- the last day that materials were furnished or services were provided under the contract, or
- the date the contract was abandoned.
This means that if you substantially completed your scope of work on June 1 and returned on June 20 only to perform minor touch-ups or warranty repairs, the lien deadline is calculated from June 1, not June 20. Our Calgary Construction Lawyers can help you interpret these timelines and avoid costly mistakes.
Alberta courts have consistently held that remedial or warranty work does not reset the lien deadline, because such work is not considered part of the original improvement to the land. Courts have rejected arguments that minor repairs, adjustments, or corrections restart the lien period, emphasizing that the deadline is tied to substantial completion, not the final return visit.
In 1361556 Alberta Ltd v Ristorante Cosa Nostra Inc (2023), the court clarified that “completion” refers to when the substantive work under the contract was completed—not when minor final work was performed. This distinction is crucial for determining lien deadlines.
Why Remedial Work Doesn’t Extend the Deadline
The rationale is straightforward: lien rights exist to secure payment for the improvement made to the land. Warranty work or minor corrections are obligations under the existing contract, but they do not constitute new improvements. Allowing remedial visits to extend lien deadlines would undermine certainty in the industry and create opportunities for manipulation.
If a subcontractor could extend lien rights indefinitely by performing small remedial tasks from time to time, the statutory deadlines would lose meaning. Alberta law prevents this outcome.
Practical Implications for Contractors and Subcontractors
Failing to register a lien within the prescribed period can result in a complete loss of security. OP Lawyers LLP has extensive experience guiding subcontractors and owners through Alberta’s lien process.
To protect your rights:
1. Track substantial completion dates carefully.
Document when your main scope of work ends. It’s important for both contractors and the owner to properly track the date of completion. In most large projects, contractors provide a certificate of substantial completion which indicates the date on which the work was substantially completed. From an evidentiary point of view, this document can be helpful in ascertaining the date of completion of works. Otherwise, parties are likely to get embroiled in costly litigation to determine the date of completion.
2. Do not assume that minor follow-up visits extend lien rights.
The key issue here is the nature of the work. If the work was done previously and the additional work done on a later visit was remedial in nature, the work will still be considered completed on the first date, not the later visit.
3. Issue proper invoices promptly.
The issue of invoices can also indicate when work was completed. Typically, the sub-contractor will issue a final invoice once the entire work is completed. This can further prove when work was intended to be fully completed.
Takeaways for Owners
If a lien has been registered against your property after the timeline has expired, the lien is no longer legally valid. However, that does not mean that the Registry will automatically remove the lien from the property. It is important for the owner to seek legal advice on the best way to remove the lien from the property. A lawyer can help negotiate the dispute between the parties without going to court. In case negotiations do not work, a lawyer can help get a court order to remove an improperly filed lien and assist with removing the lien from the Registry. Our Calgary Civil Lawyers at OP Lawyers LLP can assist with negotiating disputes and obtaining court orders if necessary.
Takeaway for sub-contractors
Failing to register a lien within the prescribed time period results in the loss of lien rights. The legislation clearly states that remedial work does not extend the time for registering a lien. The plain language of the Act establishes that something improperly done which is corrected at a later date does not extend the time for registering a lien. Warranty work is likely to fall within this rule as warranty work would generally fix deficient work. For this reason, it is important to track the timeline and file liens within the deadlines to preserve legal rights.
In many cases, contractors will often promise payments within a particular time period and then delay making the payment to another date. This is not uncommon for contractors/owners and sub-contractors that regularly work together. Filing a lien can often rupture the relationship. However, it is important for both parties to understand that:
- There are strict timelines for payment to sub-contractors; and
- Not filing a lien within time exposes the subcontractor to a serious risk of losing a statutory remedy.
For the above reasons, it may be unreasonable for a contractor to request or expect a sub-contractor to not file a lien within time. A lien can be filed just to preserve the statutory right and then deregistered soon after payment. These are discussions that the parties should have in negotiating timelines for payment.
Conclusion
The PPCLA has modernized Alberta’s construction law, but the fundamental rule remains unchanged: lien rights are time-sensitive, and the filing deadline is not extended by remedial or warranty work. The lien period begins when the substantial work is completed, not on the date of corrective visits.
Contractors, subcontractors, and suppliers must be vigilant in tracking completion dates and protecting their lien rights. Certainty in timing benefits all participants in Alberta’s construction industry and prevents the potential abuse of the lien system.
Our Calgary Construction Lawyers at OP Lawyers LLP are experienced at resolving and litigating disputes in the construction industry. If you are facing any issues in your construction project, feel free to reach out to OP Lawyers LLP for a consultation with our Calgary Construction Lawyers.
Disclaimer: This blog post is intended for informational purposes only and does not constitute legal advice. For advice specific to your circumstances, please consult a qualified lawyer at OP Lawyers LLP or another legal professional.