The passage of the Open for Business Act, 2010
introduced several key amendments to the Construction Lien
Act ("CLA"). For condominium developers, the most
important change to the CLA is the addition of section 33.1 which
requires developers to adhere to strict notice requirements when
registering a condominium. Section 33.1 came into force on July 1,
The New Notice Requirements
As a result of the introduction of section 33.1 into the CLA,
developers are now required to publish notice of their intention to
register condominium lands in accordance with the Condominium
Act, 1998 (the "Condo Act"). The notice
must be published in a construction trade newspaper between five
and 15 days (excluding weekends and holidays) prior to submitting
the condominium's description for approval to the relevant
municipal authority under subsection 9(3) of the Condo
The notice must include the following three pieces of critical
The developer's name and address for service;
A concise overview of the land described in the description
(including reference to the lot and plan number and the parcel
number(s) of the land); and
To the best of the developer's knowledge, information, and
belief, the name and address of any contractor that supplied
services or materials to improve the land in the preceding 90 days
from the day that the description is submitted for approval.
The prescribed form of notice is Form 24 and is provided in
Ontario Regulation 175, R.R.O. 1990.
A developer is liable to any person entitled to a construction
lien who suffers damages as a result of the developer's failure
to comply with this new notice requirement.
A Benefit for Contractors
Contractors and other potential lien claimants can register
construction liens against condominium lands both before and after
the condominium has been registered. A lien registered prior to the
registration of the condominium may be enforced against the
property as a whole. In contrast, once a condominium is registered
and its units have been created as separate parcels in
Ontario's land registration system, contractors must conduct a
search of each individual unit and then assert separate liens only
on those units still held by the developer (liens cannot be
registered against units that have been sold to a "home
Registering construction liens after the condominium has been
registered is a complicated, costly, and time‐consuming
process for contractors. To address these problems, section 33.1
ensures that contractors will be given advance notice of a
condominium registration which, in turn, provides them with a
window of opportunity to preserve their lien rights against the
property as whole. Since registering a lien against the entire
property is a simpler, more efficient, and cost‐effective
method of asserting a lien, contractors are undoubtedly welcoming
the benefits they receive from this new amendment.
A Burden for Developers
Section 33.1 does not offer any benefit or added protection for
developers. Instead, it has the effect of creating an additional
administrative burden that developers must satisfy in order to
avoid exposing themselves to liability.
This amendment also introduces an unwelcome dose of ambiguity
into the lives of condominium developers. For example, the
following important questions are left unanswered by the
What if a developer fails to include a contractor's name in
the notice? Does this render the entire notice ineffective?
Are developers obligated to make active inquires to determine
contractors' contact information? If so, what type of inquiries
should be made?
Without answers to these and other questions, it will be
difficult for developers to properly and fully comply with the new
notice requirements ushered in by the recent amendments to the CLA.
Despite these difficulties, developers are encouraged to make every
reasonable effort required to satisfy the burden placed upon them
by section 33.1.
About Fraser Milner Casgrain LLP (FMC)
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