Assignment of Mechanics Liens
Scott recently responded to a reader’s question with a very informative blog post addressing the assignability of mechanic’s liens generally, and in Louisiana in particular. This is a short post addressing a point not raised by the reader’s question, but none-the-less related to mechanic’s lien and their assignment.
The general rule, as Scott noted, is that mechanic’s liens are assignable unless there is a specific provision forbidding their assignment. There is another general rule as well, that only liens already perfected by the filing or recording of the claim of lien may be assigned. This is generally true even when the state laws specifically declare mechanic’s lien assignable. That is to say, it is the perfected lien that is assignable, not the inchoate right to lien.
This makes sense. In practical, straightforward terms, in order for a mechanic’s lien to be assigned, there must actually be a lien to be assigned. Generally speaking, a party may not assign their right to file a mechanic’s lien – only a lien they already have. Again, this makes sense when considered against the background of what a mechanic’s lien is. A mechanic’s lien is personal in the sense that it is a right that can be exercised only by the person in whose favor the right arises. If you didn’t do the work, you don’t have the right to lien, but you can be assigned a lien that has already been created.
This may seem simple enough, but it can be a little tricky semantically. By buying a mechanic’s lien you are buying the right to proceed against the property under the lien – but you cannot just buy the right to file the lien in the first place.