Getting your mechanics lien filed with the county recorder can be quite the hassle. County recorders have very finicky rules, and their bureaucratic offices can even make arbitrary decisions. In the process of filing your mechanics lien, you may run into frustrating difficulty in actually getting the county recorder to file your claim. This article will help you understand common reasons why county recorders reject or refuse to file mechanic lien claims, and guide you past those rejections to get your document filed…and get you paid!
Table of Contents
What It Probably Means If A County Rejects Your Lien Claim
A mechanics lien is a powerful tool that usually works to get you paid (learn how mechanic liens work here). But getting a mechanics lien to start working for you requires that you get the lien filed. As we explored in our How to File A Mechanics Lien guide, getting a lien filed requires great attention to detail. While the details may differ from state-to-state and situation-to-situation. one thing that every lien requires is that it must always be filed and indexed by a county recorder!
This is generally a pretty smooth process.
Generally, the county will record your mechanics lien documents whenever the documents are presented for recording. However, on occasion, a county will refuse and will not accept your document. As you’ll see in this post, this is almost always because the lien document itself does not meet some filing requirements (such as the margin requirements, filing fee requirements, attachment requirements, etc. — more on this below).
This does not mean you are without lien rights. In fact, counties are not allowed to pass judgment about whether you have the right to file the lien. However, without your mechanics lien successfully recorded and indexed with the county, you have not filed it, and you have not asserted your rights yet!
It is extremely important that you figure out what is wrong, and get the lien successfully filed.
Common Reasons Why Recorder Rejected Your Documents (& How To Fix)
The whole lien process is highly bureaucratic, and small mistakes can derail your success at any step along the way, from sending notices to filing and releasing a lien. When the lien documents are received by the county, they are generally recorded as long as the lien claimant meets all of the requirements necessary for a valid lien (such as margin requirements, any fees, attachments, etc). However, on occasion, a county recorder will not accept a lien document. When the county sends the document back without recording it, they are rejecting the lien document and thus, the lien claim itself. Read on for an overview of some of the reasons why a county recorder office might reject a lien.
1. Insufficient Description of Labor
One common reason we have seen recorders make when rejecting a document is that the claimant’s description of labor is insufficient. We find this rejection reason to be especially challenging since a description of labor that is deemed to be sufficient by one county recorder may be considered insufficient by another county recorder, even when the exact same wording is used. Like a lot of interactions with state bureaucracy, it can seem like the outcome you’re going to get largely depends on whether the clerk you ended up with was having a good day or not!
Here are some descriptions of labor we’ve seen that resulted in the document being rejected for recording:
- “Labor and materials for refrigeration remodel and produce case”
rejected in Ventura County, California
- “Service Work”
rejected in New York County, New York
- “Project Manager – Hiring, ordering, designing, liaison with client, estimates, approvals, records”
rejected in New York County, New York
- “Construction Monitoring during construction”
rejected in New York County, New York
rejected in Los Angeles County, California
Best Practices For Writing Your Description of Labor & Materials
It is generally a good rule of thumb to give a broad enough description of what was provided so that it covers all labor and materials provided on the project, but specific enough to give some detail on how the claimant helped improved the property.
For instance, if a claimant provided electrical materials on the project; the description of “provided electrical materials, including but not limited to light fixtures, conduits, and cables” should be general enough to cover all materials provided, and specific enough to provide evidence of what exactly was contributed to the project and property.
While there are statutes in every state to determine who has a lien right, it is not the recorder’s position to reject the recording of a mechanics lien because it does not fit their description of work justifiable to validate a mechanics lien claim.
2. Lack of Supporting Documentation
One common reason that mechanics liens are rejected by county recorders is that the required attachments are not included with the lien when submitted for filing, or are not presented in a format that the recorder deems acceptable.
The types of required attachments can be grouped into three broad categories:
- Proof that required notices were sent on time and to the correct recipients
- Documentation that proves labor or materials were provided and that money is still owed
- Attachments that prove the lien claimant meets all licensing requirements.
Missing Documentation Showing Proof That Notices Were Sent & Best Practices
Mechanics lien requirements, including notice requirements, vary greatly based on a number of factors. Depending on the circumstances of the project, preliminary notice and/or notice of intent to lien may have been required to be sent in order for the claimant to preserve their lien rights.
Depending on the state where the project is located, a copy of the notice itself, the proof of its mailing, and sometimes both need to be included with the mechanics lien filing as an attachment in order for the lien to be valid.
For instance, in Arizona, the Arizona mechanics lien laws require proof that the preliminary notice was sent is required as an attachment on all mechanics lien filings. This is generally a signed acknowledgment from the recipient that they received the notice, or if this is unavailable, an affidavit showing the time, place and manner of mailing and facts showing that such service was made in accordance with the Arizona Lien Statute (33-992.01)
On commercial projects in Arkansas, the Arkansas Mechanics Lien Laws require the lien claimant is required to include a copy of the notice of intent to lien that was sent on the project, as well as a copy of the 75-Day Notice to Owner.
Make sure you check the requirements for your state before submitting your lien to the county.
Missing Documentation to Prove Labor or Materials Delivered & Best Practices
Certain states require that the lien claimant provide evidence that there was work commissioned and completed, and that there is still a balance owed on the project. The two most common documents to prove this are invoices showing outstanding amounts and a copy of the written contract, but you may also include documents such as receipts and email communications regarding the project.
New Mexico’s lien laws, for instance, requires that you include a copy of the written contract, or a description of the agreed-upon term if the agreement was verbal. Arkansas requires that invoices, an itemized statement, or other documentation showing the amount due and work done be included.
A few of the other states that require proof of work performed include Pennsylvania, Arizona, and Wyoming. Make sure you check the requirements for your state before submitting your lien to the county.
Missing Documentation to Prove Licensing and Authority Requirements & Best Practices
Depending on the work performed and the state in which it was performed in, a lien claimant may need to provide proof that they were licensed to perform such work in order to have a valid lien claim.
In South Carolina, for example, the lien claimant must:
“provide the county clerk of court or register of deeds proof that he is licensed or registered if he is required by law to be licensed or registered. As proof of licensure or registration, the contractor must record his contractor license number or registration number on the lien document when the lien document is filed.”
In Washington D.C., not only is the lien claimant’s business license required, but also their Certificate of Good Standing issued by the Department of Consumer and Regulatory Affairs.
If you seek help from an external party such as a lawyer or service like Levelset, you may need to include a document granting them authority to act as your agent. While most states allow for outside parties to act as agents and file documents on their behalf, some states require explicit consent in order to file the lien. New York and Washington DC, for example, require an “Authority to Sign” document to be included with the mechanic’s lien.
What If I Don’t Have the Required Documents?
If the documents are required and not provided, the lien will likely be rejected. Washington DC and New York are notoriously strict on rejecting documents that do not have attachments included.
If the lien is submitted without required documents but still gets recorded, it may be deemed invalid during the legislation proceedings if the claimant is forced to file a lawsuit in order to enforce the lien claim.
Another frustrating thing that can happen is when your attachments don’t comply with the county’s formatting requirements. Arizona, for example, requires a number of attachments, including a copy of the written contract. However, we’ve seen Arizona’s Maricopa County reject lien filings because the contract was drawn up on a gray-colored piece of paper instead of the specified white. This county has also rejected a lien filing because an invoice was printed in landscape format rather than portrait format!
If Attachments Aren’t Required, Can They Still Be Included?
Generally, yes, attachments may be included.
The most common documentation that is included with lien filings are contracts and invoices. In some states including Kansas, Texas, and Louisiana, it is both encouraged and best practice to include extra documentation proving the work was performed.
Even though this extra documentation is not statutorily required, we have seen instances where recorders in these states rejected a lien filing because attachments that weren’t even required in the first place were not included! So, if you’re in one of these three states, the best practice is to include any supporting documentation you have, even if it’s not required!
But, don’t go crazy — counties charge per page, and so if you include a bunch of attachments, you may wind up paying big bucks!
3. Filing a Lien Without Lien Rights
Another common reason for a mechanics lien rejection is that the lien claimant is attempting to file a lien for labor that they don’t actually have lien rights for. This might sound silly, but determining whether or not a company actually has lien rights on a project is not as straightforward as it may sound, and we’ve seen too many instances to count where a construction company thought they had lien rights on a project only to find out later that they did not. Sometimes, these parties never had lien rights to begin with – an example of this is that in many states, suppliers to suppliers do not have lien rights. Other times, a party may have had lien rights on a project to start with, but lost those rights due to an unmet requirement (such as failing to send a preliminary notice) or a missed deadline.
The lien claimant’s role on the project and the labor/materials provided will affect the ability to file a valid mechanics lien depending on the state the project is located. For instance, in New York, mechanics lien protection is fairly broad and extends to every:
“contractor, subcontractor, laborer, materialman, landscape gardener, nurseryman or person or corporation selling fruit or ornamental trees, roses, shrubbery, vines and small fruits, who performs labor or furnishes materials for the improvement of real property.”
Except for suppliers, a lien claimant’s tier on a project is inconsequential. There are some exceptions, however. A lien claimant must be licensed to do the work (if a license is required), and must be authorized to do business in New York. The lack of a license or authorization to do business when required is fatal to the lien claim. A supplier to a supplier is not allowed to file a mechanics lien in New York.
Contrast the practice in New York to the way it’s done in Utah, where these parties are explicitly covered by the Utah Mechanics Lien Laws:
“In Utah, contractors, subcontractors, and other furnishers of labor and/or materials to the project (including equipment lessors) have mechanics lien rights. Lien rights also extend to some pre-construction services, such as planning, designing, and surveying. Unlike some states, suppliers to suppliers are entitled to mechanics lien protection in Utah as long as the materials supplied can be traced to the actual project – and the party complies with the notice requirements.”
Best Practices For Figuring Out If You Have Lien Rights
For starters, there is a wealth of extremely useful information and resources available for anyone in the construction industry to use, available for free on the Levelset website. If you’re confused about whether your company has lien rights on a particular project, it’s a good idea to start there.
4. Other Technical Reasons
Some of the most common reasons that liens get rejected are administrative in nature – so-called “technicalities.” Here’s an incomplete list of some other mistakes or issues that can lead a country recorder to reject your lien:
- Page margins
- Font size and type
- Placement of specific text on the page
- Incorrect legal description
- Minor typo
- Insufficient recording fees (of even less than $1)
- Incorrect payment type (business checks, attorney checks, money orders)
- Special requirements for the first page of the document are missing
- Sending the document to the wrong county!
- Missing a cover page that is required
- Omitting statutorily required language in the claim
Best Practices For Avoiding Technical Problems & Mistakes With Your Lien Claim
If some of these reasons seem a little minor (Incorrect margins? Really??), all we can say is, close only counts in horseshoes and hand grenades, and filing a mechanics lien is neither. Before heading off to the recorder’s office to file your mechanics lien claim, you’ll want to research the county’s recording requirements in-depth. And you’ll need to comply with these requirements very closely! So pay close attention.
Another best practice is to just use a lien filing service like Levelset, for example, who can make these little county annoyances go away.
5. The County Makes A Judgment Call
Lastly, liens can be rejected by the county when the recorder makes a judgment that the lien document should not be filed, or should include something that is not legally required. In our opinion, county recorders should NOT do this. We go through this in great detail in the below section of this post.
Examples of these “judgment calls” can include:
- Determining the property description is not descriptive enough
- Determining that the labor/materials provided by the potential claimant do not warrant a mechanics lien claim
- Determining that the notary information is not clear enough, or presented in the correct format
Your Lien Was Rejected…Now What?
If your lien was rejected, not all hope is necessarily lost. Information can be updated (legal property description, cover pages, etc.) and the document can be re-prepared and submitted for recordation if you are still within the deadline to file the lien claim.
It is always best to leave ample time before the lien deadline cutoff to account for the recordation process (and the possibility that your lien may be rejected on your first attempt), as it may take the county some time to return a rejected document. While some states are much quicker and easier to record a lien in, Levelset recommends ordering your lien with at least 14 days before your deadline to allow for the lien recordation process.
Should Recorders be Authorized to Reject Filings?
A friend of the blog, Vincent Pallaci, posted an article this week about a New York bill proposing to require proof of licensing before allowing a mechanics lien recording. According to Vincent, it’s a bill that has been proposed to the New York State Assembly every year since 2004 and a bill that should continue to fail. I agree with him.
County clerks and recorders should be completely agnostic as to what is and is not qualified for recording. Unfortunately, it’s sometimes hard for legislatures and recorders to draw (or see) the line. This post is about why recorders should not be authorized to reject any filings, and whether they inappropriately do so currently.
Why Clerks and Recorders Should Not Decide On What Mechanic Liens Are And Are Not Recordable
At first glance, you may not see the problem in requiring proof of license to record a mechanics lien. After all, if a license is required, shouldn’t the contractor need to prove it?
Ah, but that sentence contains the hiccup, and so does Vincent’s blog post on the subject: when exactly is a license required? Here is Vincent’s terrific explanation:
What if there is a difference of opinion between the contractor and the clerk that is issuing this certification as to whether a license is required? If the clerk refuses to accept the mechanic’s lien for filing, and it is ultimately determined that the lien should have been accepted, the right to file the lien may have expired in the interim. There are a number of nuances in the licensing statutes for each county and those nuances have not yet been completely ironed out by the court systems despite extensive litigation. How is a county employee supposed to make such a determination when the statutes themselves are not clear, especially because determining applicability requires a fact specific analysis? While the problem of unlicensed contractors filings mechanic’s liens is indeed a problem, it is one that the courts can address – they can vacate the mechanic’s lien and if necessary award the home owner damages. The legislature should not put the life or death of a mechanic’s lien in the hands of a county employee that likely would not have the knowledge (either legally or factually) to determine if a license is required for that particular work.
Whether a contractor is licensed or not is just one issue – the county clerks sometimes stick their noses (authorized or not, see below) in a whole host of other legal issues, such as:
- Is the description of the property legally sufficient?
- Is the mechanic’s lien filed on time?
- Does the claimant have an underlying lien right?
- Does the language within the mechanic’s lien meet statutory requirements?
The list goes on and on and on. All of these things are legal determinations that may or may not impact the effectiveness of the mechanic’s lien filing. Can a county employee make these determinations? Should they?
They neither can nor should. But, as I’m about to show you, they constantly and inappropriately do.
The unfortunate truth is that county clerks and recorders constantly overstep their authority, and there is very little a claimant can do about it. The clerks are usually immune from suit, and even if they later relent and let you file, their new cooperation may be too late to save your mechanics lien rights. It is precisely why we recommend giving yourself as much time as possible to file a lien, because things out of your control can go wrong when trying to file.
I’ll give you three real-life examples of recorders overstepping their authority in making a decision about what is and what is not lienable. Remember, universally, courts are prohibited from making legal determinations about the validity of a filing. It is their job to stamp documents. That’s it.
Example 1: Possible Arbitrary and Capricious Conduct By The St Tammany Parish, Louisiana, Clerk of Court
In the past, Levelset had transmitted a mechanics lien cancellation document to the St. Tammany Parish clerk of court in Louisiana. The clerk rejected the cancellation and refused to record it based on her understanding of what the document required. She could not recall or cite the law that supported her decision. After we blogged about the conduct and faxed the post to her, she abruptly changed her mind and recorded the document.
Example 2: California Clerks Are Confused About Requirements Of California Mechanics Lien Extension
Filing a mechanics lien extension in California is quite rare because it requires the property owner’s signature. As a result, the recorders don’t have much experience with the document. They also do not understand the document’s requirements.
We wrote about this after a clerk refused to record a California lien extension document. It was eventually recorded, but the delay was very close to causing a problem.
Example 3: New York County Recorder Refused To File Mechanics Lien Because Work “Not Lienable”
The final example comes in New York where a company’s lien was rejected by a clerk in New York, based on the work not being “lienable.” The filing company’s work was for “testing on a building undergoing renovation.” The clerk rejected the lien stating that “testing” was not included under the lien laws of New York.
Again, here is the clerk making a legal determination which is outside their scope of authority. They may be right…or they may be wrong. But, it’s really not their place to say, especially in this case where the description of work provides only a glimpse at what was done at the property.
County Recorders – Their 5 Worst Habits
We love county clerks and recorders. They are an integral part of the execution of mechanics lien laws in all 50 states, nationwide. They control, process, and file hundreds if not thousands of mechanics liens each and every week, all in service of helping a company just like yours get paid the money that they’ve rightfully earned on a construction project.
Sometimes though, they really push our buttons.
From our experience filing many thousands of official construction documents nationwide, here are the five worst habits of county recorders (and why you should be on the lookout!).
Having Completely Unrealistic Recording Standards
While all recording offices will have quality standards for documents, some have more unrealistic expectations than others. For example, in Arizona, most recorders use a process of scanning and storing documents via micrographic film. This process is infamous for distorting documents if the text is not spaced out. While this may seem reasonable to include proper spacing in all documents submitted to the recorder, Arizona generally requires exhibits (such as the written contract or invoices) to be provided as an exhibit with the lien. Often times contracts can have handwritten components (such as signatures) or may have images such as diagrams, logos, or pictures included. Microfilm will significantly distort these visual elements, making the document illegible and leading to its rejection for recording. Rejecting a document due to to the process of using microfilm is a completely unrealistic standard to hold over lien claimants, and yet it still persists. We’re looking at you, Arizona!
In New York, several counties have raised their recording fees for mechanics liens in recent years to as much as $300 (and in some cases even more). This is the cost just to file with the county recorder and does not include any of the other costs commonly associated with a lien filing including mailing and postage costs, attorney or lien software processing prices, or notary fees. In particular, Nassau County is notorious as one of the most expensive counties to file a lien within the entire country! While the costs to file a mechanics lien may vary around the country, very few counties come as close to this steep in price and with little to no explanation as to why the prices are so expensive. We all know the cost of living in New York is among the highest in the country, but this is ridiculous.
Poor Phone and Web Support
In our experience, many if not most counties have excellent phone support, exceptionally clear directions easily found on their websites, and in some cases, even both. Unfortunately, it’s not uncommon to find the opposite – counties that provide neither helpful phone support nor useful web assistance. In this category, we would include counties that don’t provide any document updates over the phone (even better would be online, but baby steps!), and others that rely solely on USPS to send your documents back. Sometimes the directions are there and easily found, but they’re so poorly worded that reading them is of little or no help. Still, other counties provide “directions” that leave out essential recording requirements, such as current fee schedule. Since most counties will reject a document sent with improper fees, it would make sense for the recording offices to make sure this information is accurate and readily available!
Having Slow-as-Molasses Return Policies
Most counties will record documents the same day, or within a few days, of receiving them. However, other counties do this really annoying thing where they record the document quickly and then…they let the recorded document sit in their offices for weeks at a time. These same counties often mail outgoing documents just once a week or so in batches. This causes a painfully slow return of the recorded documents that can keep a claimant biting their nails until they get the document back weeks later. Georgia, for instance, has some of the nicest recorders in the country, and a wonderful online search tool for finding recorded documents. But their processing times on sending recorded liens back in the mail is over three weeks long on average. Way to keep us all on the edge of our seats, Georgia!
Not Providing ALL of the Reasons for a Document Rejection in the Initial Rejection Letter
Are you familiar with the Greek myth of Sisyphus? Sisyphus was punished by the gods to spend eternity rolling an enormous boulder up a steep and winding hill, only for it to roll back down the moment he got to the top. Please keep this in mind when reading about what is, in my opinion, the most annoying of all recorder habits by far.
Every day and in every state in the country, documents get rejected by county recorder offices. It’s a natural but frustrating part of the process – it’s just the way it is. But the reason why a recorder decides to reject a document is a crucial piece of information since claimants rely on the rejection reason so that when they re-submit the document, they can do so with the assurance that they’ve gotten it correct.
And so, in cases where a recorder rejects a document for multiple reasons, but they don’t include all of those reasons in the rejection letter, they set the claimant up to get rejected again, this time for a mistake that was there the first time but wasn’t brought to the claimant’s attention. Sometimes a resubmitted lien will be seen by a different recorder, and when seen by a fresh pair of eyes it may be rejected again for new reasons. Other times, recorders may not want to fully inspect a document for other inaccuracies once they find the first mistake. When this happens (and believe us, it happens!), a lien claimant may be forced to record their document multiple times over many weeks, finding out each mistake one-at-a-time instead of all at once. So annoying, and I’m sure anyone reading this will surely agree!
Summary Of Why County Recorders Reject Lien Filings
County’s can be frustrating to deal with, but it’s critical to get your document through their bureaucracy and filed! One best practice to help with this is to use Levelset to file your mechanics lien.
Levelset’s documents are compliant with every state’s lien statutes, and we’ve done all the research for every town/parish/county clerk’s filing procedures (although we even still cannot predict every single time a county will reject a document. Sometimes clerks record anything that comes before them, and other times, well, they can be picky!). Nevertheless, the best way to get your lien recorded, and the easiest way to deal with all county recording issues, is to file your lien with Levelset.
Good luck out there!