What can a builder do to enforce a claim for payment of work done? One option is that he demands payment from the person who contracted with him to perform the building worksand, if the latter remains in default, to issue summons and ultimately force the matter before a Court. More effortless, however, is the builder’s (and subcontractors’) option to exercise the so-called builder’s lien by simply refusing to vacate the premises until such time as he has received the payment that is due to him.
A builder’s lien gives a builder the right to retain possession of property (the building site
and what is built thereon) belonging to another (usually the property owner) until the outstanding payment has been made.
Recently the Eastern Cape High Court was asked to adjudicate on a scenario in which a subcontractor stopped work and refused to leave the building site because of a dispute with the main contractor in respect of outstanding payments. As a result, the subcontractor suspended construction works but refused to vacate the premises by retaining its security guards on the sites during the day. In the meanwhile, the main contractor appointed new contractors to continue with the work. The initial subcontractor thereupon approached the Court and argued that the appointment of the new contractors in his place constituted spoliation of his (up until that time) undisturbed possession of the site whilst exercising his right of lien. He accordingly sought an order reinstating him in undisturbed possession of the premises.
The Court granted him the order and confirmed that not only the main contractor, but also a subcontractor, may exercise such a lien. Where a subcontractor’s undisturbed possession of a site was disturbed by new subcontractors subsequently appointed, a Court will grant an order returning undisturbed possession of the site to the original subcontractor.
Read more about the spoliation process and what exactly it is HERE