New Construction Lien Decision on “Lands Enjoyed Therewith”:
Beaver Materials Handling Co. Ltd. v. Hejna

On June 30, 2005, the Ontario Superior Court of Justice ruled that the section of the Construction Lien Act allowing a lien claimant to register a lien against not just the land directly improved by the lien claimant, but land “enjoyed therewith”, includes real property held by a separate, but related, corporate entity.

A contractor was hired to do work for a marina. The marina's land extended to both sides of a highway and seemed to be an integrated operation. When the contractor liened, it became clear that the land on the east side of the highway was owned by a separate company, controlled by the same individual.

The defendant argued that the lien claimant was retained by 1545114 Ontario Inc. to provide materials and services for the construction of boat storage modules on the west side of Highway 169, which lands were owned by 154116 Ontario Inc. Accordingly, the defendants argued that the lien claimant had incorrectly or improperly registered the Claim for Lien and Certificate of Action on the land and premises owned by 1545115 Ontario Inc. (Markus – three different companies?)

The plaintiff argued that in all the dealings regarding this project, no differentiation was ever made between the business operation on the west side of the highway or the east side of the highway, or the ownership of the lands on the east side of the highway and the west side of the highway, and that it was always represented to the plaintiff by the defendant and its employees that the lands on both sides of the highway were part and parcel of the Marina, operated as one business by the same people and the facilities constructed on the west side of the highway are part of the New Ark Marina operation. It argued that the premises in which the lien can be registered is not restricted to just the plot of land upon which the improvement stands, but includes the land “in respect of which the improvement was done or made” and land “enjoyed therewith”.

The court dismissed the defendant's motion under s. 47 of the Construction Lien Act. The court held that the lands on the east side the highway and those on the west side of the highway had a common usage. Together they formed the lands upon which the Marina was operated. The two parcels of land had an integrated and common function. More particularly, the lands on the west side of the highway provided parking for the Marina and storage for the boats of the Marin patrons. Therefore, the lands on both sides of the highway together constituted the Marina and as such, were lands enjoyed each with the other as provided in the statute.