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If you performed construction work or furnished materials or equipment to a construction project commissioned by a tenant in New York, you may have the right to file a mechanics lien, but it depends greatly on just how involved the property owner was in the work.

The right to file a mechanics lien in New York arises out of Lien Law § 3, which provides:

A contractor, subcontractor, laborer, materialman, landscape gardener…who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent…

When the work was commissioned by a tenant, the key phrase here in the statute is “with the consent” of the property owner. If the work was performed with the owner’s consent, the mechanics Lien right is available. If it wasn’t, the right is not available.

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But, what exactly does the “owner’s consent” mean?  This is tricky.  The New York Supreme Court commented on this in a 2006 case, Elliott-Williams Co. Inc. v. Impromptu Gourmet Inc., reasoning as follows:

A contractor who performs work for, or provides equipment to, a tenant may nonetheless impose a mechanic’s lien against the premises where the owner of the premises affirmatively gave consent for the work or equipment directly to the contractor, but not where the owner has merely approved or acquiesced in the undertaking of such work or the provision of such equipment…To sustain the lien, “the owner must either be an affirmative factor in procuring the improvement to be made, or having possession and control of the premises assent to the improvement in the expectation that he [or she] will reap the benefit of it”…

Unfortunately, whenever the owner’s involvement in a construction project is a close call, these issues find themselves in litigation, with both parties arguing over whether the owner did or did not in fact “consent” to the work.