Samhadanah v BOS Properties Holdings Corp: Court Reinforces High Evidentiary Threshold for Declaring Expiry of Construction Liens

Article

In Samhadanah v BOS Properties Holdings Corp, the court dismissed a motion to declare a construction lien expired, citing a failure to meet the high evidentiary standard.

Facts:

Starbank Developments 285 Corp (“Starbank”) moved ex parte for an order declaring that the plaintiff’s lien expired and vacating the certificate of action remaining on title.

Starbank was constructing a building at the subject property for a major tenant and was required to file an easement. However, a construction lien filed by a contractor was still on title and holding up the process. Starbank tried to clear this by filing a motion to declare the lien expired and remove the certificate of action from the property’s title without notifying the lien claimant.

The Court dismissed Starbank’s motion, reiterating that a high evidentiary threshold was required. At paragraph 4, the Court emphasized that a party seeking to declare a lien expired without notice must provide evidence that no additional evidence or argument from the absent party could alter the outcome.

The Court provided several key reasons as to why Starbank did not meet the high evidentiary onus. In particular, the Court found insufficient evidence to support the claim that the lien expired under s. 37 of the Construction Act. This section provides that a lien expires two years from its perfection unless an action in which the lien may be enforced has been set down for trial or an order for trial has been made in an action in which the lien may be enforced. Starbank’s evidence consisted solely of a brief affidavit from a law clerk stating the action had not been set down and no order had been made, without identifying the basis for this belief. No supporting documentation was provided. Based on the limited evidence, the Court stated that it could not confirm that there had been no set down or no order for trial.

Key Takeaway:

Parties seeking to declare a lien expired (especially on an ex parte basis) must meet a high evidentiary burden. The motion should generally be brought on notice, and must be supported by clear, reliable evidence to withstand judicial scrutiny.