Many folks around the country may not relate to this blog post at all, but those in hurricane territory know that when a storm approaches sales of plywood goes through the roof and folks all over town are installing boards to protect home and office windows.
You may know where this blog post is going…If you supplied the wood or installed the boards, and you aren’t paid, is that something that qualifies you to file a mechanics lien?
Look To The Specific State Statute To See If The Work Qualifies
As it goes in all of these scenarios posts, it’s important to understand that the answer to this question will vary from state-to-state. The work may be entitled to lien rights in one state, but clearly not qualified for a lien filing in a bordering state. That’s just the nature of these mechanics lien laws, which are highly fragmented across the country.
So, the first thing you need to do in deciding whether this type of work qualifies the furnishing for a mechanics lien claim is to look to the individual state’s statute. You’ll specifically want to examine how the state defines who can and who cannot file a mechanics lien, and for what services or furnishing.
Which leads me to the next section…
Is This Work Incorporated Into The Building? Is It An Improvement?
If you’re a reader of this blog and you think that all of these scenario posts boil down to the same question — are the materials or labor incorporated into the improvement — you might be on to something. While the rules vary from state to state, a common thread in most state statutes is that to qualify for a mechanics lien, the work furnished must be “incorporated” into the immovable property.
Some states go further and require the materials or labor be incorporated into an “improvement,” which has a specific definition that is distinct from the property itself. It must be an “improvement” to the property in most cases, as opposed to just some type of work on the property.
Looking at the plywood on the window scenario you might immediately see some potential problems.
First, the plywood is not “incorporated” into the building. Instead, it is simply nailed to the outside as a temporary part of the property, with intention to be taken down within a matter of days.
Second, the plywood does nothing to improve the property.
In Most States There Is Likely No Lien Rights – But In Louisiana? Maybe.
As a result of the above discussed, most states’ mechanics lien statutes would not allow a mechanics lien to be filed for this type of work. The photos in this post are from our office in Louisiana, however, and the storm currently turning in the Gulf of Mexico (Hurricane Isaac) is currently headed towards Louisiana. So, let’s consider what would happen in the great and legally unique state of Louisiana.
We previously considered Louisiana’s mechanics lien laws in a Scenarios post related to temporary stands constructed for Mardi Gras: Can Mardi Gras Stand Contractors File A Mechanics Lien.
As explored in that article, the Louisiana Private Works Act is extremely broad in defining what work is entitled to a mechanics lien claim.
The term “work,” for which a mechanics lien is allowed, is defined in LA R.S. §9:4808 as follows:
A work is a single continuous project for the improvement, construction, erection, reconstruction, modification, repair, demolition, or other physical change of an immovable or its component parts.
While I think that hurricane boards are a stretch, there is a way to interpret the statute to include such work as qualifying for a lien claim. There aren’t any cases on the subject known to me…but maybe we’ll see one soon.
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