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Guide to the Quebec Notice to Owner: Protect Your Lien Rights

Guide to the Quebec Notice to Owner: Protect Your Lien Rights

September 26, 2022

In Quebec, construction professionals and businesses who contribute value to private construction projects have the right to file liens–also called hypothecs in Quebec–in case of non-payment. However, those who don’t have a direct contract with the owner, such as subcontractors and material suppliers hired by the general contractor, are required to inform the owner of their involvement in the project through a notice to owner to protect their hypothecary rights. Failure to send a notice to owner will result in the loss of the right to file a lien.

If you’re doing business in construction in Quebec, it’s important to be familiar with the hypothec laws and ensure that your bases are covered so you’ll have recourse in case issues with payment come up.

This article answers all your questions regarding the notice to owner or preliminary notice requirement in Quebec. If you have further questions, feel free to contact us at Handle.

What are hypothecary rights, and why do I need to protect them?

Construction participants in private projects in Quebec are granted the right to file hypothecs in case of payment issues. This right granted by the Quebec Civil Code gives contractors, suppliers, and construction professionals a security claim on their contribution to a private construction project if the owner fails to pay for their work. 1

The Civil Code also requires construction parties with no direct contract to the owner to send a notice to owner–may also be called preliminary notice or declaration of contract0–describing their involvement in the project. Failure to send this notice will result in the loss of hypothecary rights.

What is a notice to owner in Quebec?

A notice to owner, sometimes also called a declaration of contract or preliminary notice of subcontract, is required from everyone working on a project without a direct contract with the owner, except laborers/workers, to retain their right to file a hypothec in case of payment issues in a construction project. This requirement recognizes the right of the property owner/client to know about the individuals and entities working on their project, as well as all pertinent details regarding the construction professional/vendor’s involvement in the project. 2

Only materials, services, and labor outlined in the declaration of contract/preliminary notice shall be lienable/protected by liens.

Do I need to send a notice to owner in Quebec to protect my Hypothecary Rights?

Only general contractors and laborers are not required to send a notice to owner to retain their right to file liens. This means all construction parties with no direct contract with the owner and are not laborers/workmen on a project must send a notice to the owner if they wish to protect their right to get paid in case payment issues arise. 3

Who can send a notice to owner in Quebec?

Subcontractors, material suppliers, architects, engineers, and other contractors with no direct contract with the owner but will contribute value to the private project must send a notice to owner to retain their hypothecary rights. Failure to do so will result in losing the right to file a lien. Only those licensed and registered to work in Quebec have the right to file a legal construction hypothec. 4

When do I need to send a notice to owner in Quebec?

You are required to send the notice to owner before a project starts, so it’s best to send your notice or declaration of contract soon after you get awarded a contract for a private project. 5.

How do I send a notice to owner?

Potential claimants must send the notice to owner before work or materials delivery starts on a project.

While there’s no statutory form outlined in the Quebec Civil Code, your notice must include the following information: 6

  • Name of the owner or owners of the immovable property
  • Name of the professional, supplier, or subcontractor who will furnish labor, materials, or services to the project
  • Declaration of the contract, including the contract price
  • Description of the materials, labor, or services to be supplied as described in the contract
  • Name of the contractor or entity the person/subcontractor making the declaration has signed a contract with/has contracted under
  • A statement noting that the costs or contract price could increase pending change orders and other charges

Potential hypothec claimants must also secure proof of receipt upon sending this notice to the owner. You may make two copies and have the owner sign your copy as proof of receipt.

You can also use a service like Handle to send the notice to owner for you and secure a trackable proof of receipt. Using a notice management service like Handle is prudent for construction businesses that deal with multiple projects. A service like Handle will ensure the accuracy and timeliness of your notices, so as not to lose any of your lien rights.

What is the form used to send a notice to owner?

The Quebec Civil Code has not provided a statutory form for this specific notice, but it has enumerated all the information that must be included in the notice as well as the requirement to retain a proof of receipt, which can be done in person, via registered mail or certified mail with proof of receipt attached. 7

A notice sent through Handle will include the following information according to the requirements outlined in the Quebec Civil Code.

  • Name of the owner or owners of the immovable property
  • Name of the professional, supplier, or subcontractor who will furnish labor, materials, or services to the project
  • Declaration of the contract, including the contract price
  • Description of the materials, labor, or services to be supplied in relation to the contract
  • Name of the contractor or entity the person/subcontractor making the declaration has signed a contract with/has contracted under
  • A statement noting that the costs or contract price could increase pending change orders and other charges

Can I send a Quebec notice to owner online?

Yes. Using a service like Handle will allow you to send a notice to owner online and still satisfy the requirements in the Civil Code. Sending a notice to owner or preliminary notice in Quebec online allows you to manage multiple projects and ensure that you don’t lose any of your lien rights.

What happens if I fail to file a notice to the owner before I deliver materials or start work on a private project in Quebec?

The failure to send a notice to owner or declaration of contract will result in the loss of your hypothecary rights. If you weren’t able to send a notice to owner before the work started, send one immediately–just note that only work performed and materials delivered after the receipt of the notice would be deemed lienable.

Do I need to send a new notice to owner if the project has changed?

Quebec Civil Code doesn’t require you to send additional notices in case of change orders, but it’s in your best interest to do so just so all bases are covered.

Also, ensure that your notice includes a statement noting that the costs or contract price could increase pending change orders and other charges. A notice to owner or declaration sent via Handle already includes this for your protection. 11

What are the common mistakes when sending a notice to owner?

Not sending the notice to owner on time

Send the notice to owner before starting work or materials delivery on a project. Only materials and services or labor outlined in the notice to owner or declaration of contract will be protected by your right to file a hypothec.

Not including all information required

The Quebec Civil Code has clearly stated the information that potential claimants must include in the notice, so ensure that all information is clearly stated in your notice.

The following information must be included:

  • Name of the owner or owners of the immovable property
  • Name of the professional, supplier, or subcontractor who will furnish labor, materials, or services to the project
  • Declaration of the contract, including the contract price
  • Description of the materials, labor, or services to be supplied in relation to the contract
  • Name of the contractor or entity the person/subcontractor making the declaration has signed a contract with/has contracted under
  • A statement noting that the costs or contract price could increase pending change orders and other charges

Not securing a proof of receipt

The potential claimant is responsible for securing a proof of receipt for the notice to owner/preliminary notice/declaration of contract. You may secure this by having a receiving copy if you sent the notice in person or through proof of receipt when sending via registered or certified mail. Using a service like Handle will ensure that all notices you send have trackable proofs of receipt.

Construction Hypothec Timeline Quebec


Construction Hypothec Timeline Quebec

Can I file a mechanics lien if I didn’t send a preliminary notice in Quebec?

Those who do not have direct contracts with the owner are required to send a preliminary notice to preserve their right to file a hypothec/lien. The hypothec will cover only work, materials, and services furnished after the notice. If the claimant sent a notice after work had commenced, only work performed after the receipt of the notice would be deemed lienable.

Those with direct contracts with the owner are not required to notify the owner. Those who were required yet didn’t send a notice may still attempt to file a hypothec. Still, the chances of winning the suit in case the hypothec needs to be enforced are meager because the notice or declaration of contract is the proof and basis of the value added to the immovable property. Without that, there’s no value to be secured.

It’s worth noting that Quebec grants a legal hypothec automatically in the first 30 days after work completion but failure to file a notice of intent to exercise hypothecary rights or registering a legal hypothec with the land register within the 30-day period after project completion results in automatic cancellation of the hypothec. efn_note] CQLR 2727 [/efn_note]

  1. CQLR 2724-2
  2. CQLR 2725
  3. CQLR 2728
  4. CQLR 2728
  5. CQLR 2726
  6. CQLR 2728
  7. CQLR 2728