By Raz Toor, Business, Real Estate and Construction Lawyer, Falcon Law PC
One of the first questions a property owner asks after discovering a construction lien on title is: “How long is this going to stay on my property?”
There is a common misconception that the lien simply disappears after 60 days. That is not how Ontario’s Construction Act works.
The 60-day period is generally the deadline for a lien claimant to preserve its lien. Once a lien has actually been registered on title, a separate deadline applies to perfect that lien. If the lien is properly perfected, it can potentially remain in place while the construction lien litigation continues.
For an owner trying to sell or refinance a property, that distinction matters considerably.
Falcon Law PC acts for contractors, subcontractors, suppliers, property owners and developers in Ontario construction lien matters, including lien registration, enforcement, defence and removal from title.
The Short Answer
Under the current Ontario construction lien regime, there are really three different clocks to understand.
| Stage | General Timeline | What It Means |
|---|---|---|
| Preservation | Generally 60 days from the applicable statutory trigger | The lien must be preserved, commonly by registering a claim for lien against title. |
| Perfection | Generally within 90 days after the last day on which the lien could have been preserved | The claimant generally starts the lien action and registers a certificate of action. |
| After Perfection | Potentially much longer | A perfected lien can continue through litigation, subject to the further two-year deadline discussed below. |
The exact calculation depends on the claimant, the construction contract and the events that occurred on the project. I would not calculate a lien deadline simply by counting 60 days from the date of the last unpaid invoice.
The First Deadline: Preserving the Lien
A construction lien exists because of the Construction Act, but a claimant cannot rely on that lien indefinitely without taking the required steps.
For projects governed by the current Ontario regime, the lien will generally expire unless it is preserved within the applicable 60-day period.
The date from which those 60 days are calculated can vary.
For a contractor, events such as publication of a certificate of substantial performance, completion of the contract, abandonment or termination can matter. For subcontractors, suppliers and other lien claimants, the date they last supplied services or materials may also be relevant.
This is why one of the first things we do when someone contacts us about an unpaid construction account is work backwards through the project chronology.
When was the work actually last performed? Were materials supplied afterward? Was there a certificate of substantial performance? Was the contract terminated? What was the claimant’s place in the construction pyramid?
A lien deadline is a statutory calculation, not simply a collections deadline.
Registering the Lien Does Not Mean It Can Stay Forever
Once the claim for lien has been properly registered against the property, the lien has been preserved.
That is only the first major step.
If the dispute is not resolved, the claimant must generally perfect the lien before the end of the 90-day period following the last day on which the lien could have been preserved.
This is another point that is sometimes misunderstood: the 90 days are not necessarily calculated from the date the lien happened to be registered.
A claimant may register early in its preservation period. The perfection deadline is tied to the statutory preservation deadline, not simply “90 days after registration.”
What Does It Mean to Perfect a Construction Lien?
Where the lien attaches to the property, perfection generally requires the claimant to commence an action to enforce the lien and register a certificate of action against title.
At that stage, the dispute has moved beyond simply registering security against the property. There is now an actual court proceeding seeking to enforce the lien.
If the claimant fails to perfect the preserved lien within the statutory deadline, the lien expires.
That can give the property owner a basis to have the expired lien removed from title.
An Expired Lien Does Not Necessarily Disappear From Title by Itself
This is an important practical distinction.
A lien may have legally expired because the claimant missed the perfection deadline, but the registration can still appear on the property’s parcel register.
The Construction Act allows a person to seek a court order declaring that an unperfected lien has expired and directing that the registration be vacated from title.
So if you are an owner looking at title and see an old construction lien, do not assume that its continued appearance means the lien is still legally enforceable.
We would first check the relevant preservation and perfection dates and determine whether an enforcement action and certificate of action were properly completed.
How Long Can a Perfected Lien Stay on Title?
A perfected lien can remain much longer than the initial 60-day and 90-day periods.
Ontario’s Construction Act contains a further deadline. A perfected lien generally expires immediately after the second anniversary of the commencement of the action that perfected the lien unless, before that anniversary, an order has been made for trial or the action has been set down for trial.
This is why the answer to “how long can the lien stay on my property?” can sometimes be measured in years rather than months.
If the claimant properly preserves the lien, starts the enforcement proceeding and continues moving the litigation forward, the lien may remain relevant until the dispute is settled, adjudicated or otherwise dealt with.
Why a Lien on Title Creates Immediate Problems
The practical effect of the lien is often what causes the parties to act quickly.
A property owner may have a perfectly legitimate defence to the contractor’s claim and still need the lien dealt with immediately because the property is being sold or refinanced.
A lender may refuse to advance additional construction financing while a lien remains registered. A purchaser may refuse to accept title subject to the lien. An existing mortgage lender may also have concerns about a new construction registration.
We see the same dynamic in our broader transactional work. In a time-sensitive real estate or business transaction, an unexpected title issue can quickly become the item preventing the entire closing from proceeding.
That is why an owner does not always have the luxury of simply waiting to see whether the contractor eventually misses a deadline.
Can the Lien Be Removed Before the Lawsuit Is Finished?
Yes.
Removing a lien from title does not necessarily require the underlying payment dispute to be decided first.
Ontario’s Construction Act permits liens to be vacated from title by posting appropriate security. Depending on the circumstances, this can involve paying money into court or providing acceptable security such as a lien bond.
The lien then attaches to the security rather than continuing to encumber the property.
This can be extremely useful where the parties intend to continue litigating the underlying dispute but the owner needs clean title for a sale, refinancing or continued project financing.
The important point is that vacating a lien is not necessarily the same as defeating the lien. The contractor’s claim can continue against the security after the lien comes off title.
A Lien Can Also Be Discharged or Removed by Court Order
There are several other ways the registration can ultimately be dealt with.
If the parties settle and the claimant is paid on agreed terms, the claimant can discharge the lien.
If the lien has expired because statutory deadlines were missed, the owner can seek an order declaring it expired and vacating the registration.
The court also has authority under the Construction Act to discharge or vacate liens on appropriate grounds, including where a claim is frivolous, vexatious or an abuse of process.
Which procedure makes sense depends heavily on what is wrong with the lien and how urgently title needs to be cleared.
What If the Contractor Registered the Wrong Amount?
A construction lien should not be used simply to put pressure on an owner for every amount the contractor would like to recover.
The lien amount needs to relate to amounts properly lienable under the legislation.
The Construction Act also creates potential liability where someone preserves a claim for lien for an amount that the person knows or ought to know is grossly excessive, or where the person knows or ought to know that they do not have a lien.
That does not mean every disagreement over the amount automatically invalidates the entire lien.
Construction accounts frequently involve disputed extras, deficiencies, back-charges and changes in scope. The issue is whether the claimant has a legitimate lien claim and whether the amount and registration comply with the legislation.
What Should a Property Owner Do After Finding a Lien?
The first thing I would do is obtain the lien and review the title rather than relying on what the contractor says was registered.
From there, we need to understand the construction project and calculate the deadlines.
When was the claimant’s last supply? Who hired them? Was there a certificate of substantial performance? Was the lien registered within time? Has an enforcement action been started? Is there a certificate of action on title?
Only after answering those questions can we properly assess whether the lien is alive, expired, defective or simply something that needs to be vacated so that a transaction can proceed.
If a sale or refinance is already scheduled, I would also want to know the closing date immediately. The legal strategy for an owner with six months to resolve a dispute can be different from the strategy for an owner whose refinance is supposed to fund next Friday.
What Should a Contractor Do After Registering a Lien?
Do not register the lien and then forget about it.
The preserved lien has another statutory deadline approaching.
If payment is not resolved, the claimant needs to decide whether it intends to perfect and enforce the lien. Missing the perfection deadline can result in losing the lien security even though the underlying debt may still exist.
That last distinction is important.
Section 38 of the Construction Act provides that expiration of the lien does not itself eliminate other legal or equitable rights the claimant may have. A contractor may still have a breach-of-contract or debt claim even after lien rights have been lost.
But losing the lien can mean losing one of the strongest forms of security available in a construction payment dispute.
Older Construction Projects May Have Different Deadlines
Ontario substantially amended its construction lien regime beginning in 2018. Transitional provisions can cause older contracts and projects to remain subject to the former timelines.
Those older rules generally used shorter lien periods.
Most new matters we deal with today will fall under the current regime, but I would still confirm which version of the legislation governs rather than assuming the current 60-day and 90-day periods apply to every historical construction dispute.
The Practical Answer: A Lien Can Stay for Weeks, Months or Years
There is therefore no single number that answers how long a construction lien stays on an Ontario property.
If the lien claimant misses a statutory deadline, the lien may expire relatively quickly.
If the lien is properly preserved and perfected, however, it can remain in place while litigation continues and may affect the property for a much longer period.
For property owners, the key question is often not how long the lien could remain there, but whether there is a reason to remove it now.
For contractors, the key question is whether the steps required to keep the lien alive have been completed before each deadline expires.
How Falcon Law PC Can Help
Falcon Law PC assists contractors, subcontractors, suppliers, developers and property owners with construction lien matters throughout Ontario.
Our work includes calculating lien deadlines, registering and perfecting liens, enforcing lien claims, defending against liens, negotiating lien disputes and arranging for liens to be vacated or discharged from title.
You can learn more about our Ontario Construction Lien Lawyer services or our broader Construction Law practice.
This article provides general legal information only and does not constitute legal advice. Construction lien deadlines are strict and depend on the particular contract, claimant, project and applicable version of Ontario’s Construction Act. Legal advice should be obtained promptly where lien rights or a registered lien are involved.