Key Issues

1. Validity of Xemex’s lien against Aspen’s fee simple interest.
2. Whether Aspen was an “owner” under Prompt Payment and Construction Lien Act, meaning it had requested the work and received a direct benefit.
3. Whether Aspen’s involvement amounted to privity and consent under the Act.

Facts

• Koor Energy Ltd, Aspen’s tenant, hired Xemex to renovate its leasehold space.
• Koor failed to pay, leading Xemex to file liens against both Koor’s and Aspen’s interests.
• Xemex secured judgments against Koor totaling $263,242.10 but was unable to collect payment.

Lower Court Rulings

• Applications Judge: Found Aspen was an “owner” as it had an interest in the land, actively participated in construction, and received a direct benefit.
• Chambers Judge: Overturned this, ruling that while Aspen actively participated, it did not directly benefit from the improvements.

Court of Appeal’s Decision

• Dismissed the appeal, finding that Aspen:
  • Impliedly requested the work by approving construction plans, requiring compliance, and appointing a property manager.
  • Did not receive a direct benefit, as the renovations were incomplete, unsuitable for leasing, and required additional costs to restore.
  • Did not meet privity and consent requirements, as it had no contractual relationship with Xemex and only ensured construction compliance.

Conclusion

• Xemex’s lien against Aspen was invalid as Aspen was not an "owner" under the Act.
• Landlords are not liable for tenant-initiated improvements unless they directly benefit from them.
• No monetary award or damages were granted.