Parties in construction lien actions are often faced with liens that they know were registered out of time or for inflated amounts. What can you do about it?
Under s. 40 of the Construction Lien Act, a lien claimant is subject to cross-examination on all issues concerning the timeliness and quantum of the lien. Before any documentary discovery, this special right of examination for construction lien matters can be quite effective. Often construction lien claimants do not keep proper records and it also can catch them off guard at an early point in the dispute. These examinations often result in damaging admissions which can substantially reduce the amount of the lien and/or knock it out completely.
On every lien claim, if the amount and surrounding circumstances justify it, a s. 40 examination is a useful tool in the defendant’s arsenal to ensure that the claimant has not taken advantage of the lien remedy.