Note: This article was originally published in 2013 and was updated with new information in July 2017.
Mechanics lien requirements are different all over the country, and can vary drastically from state to state. Some of these requirements, however, are uniform in presence but completely different in formality, interpretation, and content. A clear example of this type of requirement is the universal mandate in mechanics lien law that the property to be charged with the lien be identified in the lien document. This clearly makes sense. A mechanics lien is a security interest that gives the lien claimant a right to that property. If the lien claimant isn’t paid, the property may be seized and sold to satisfy the debt. It is reasonable that the lien must identify the property for the lien to be valid. What actually constitutes a valid identification of the property, however, can sometimes be difficult to determine.
Different States’ Statutes Require Different Property Descriptions
As mentioned, the specificity required in the property description is variable by state. Some state statutes specifically require a legal property description while others only require a “description reasonably sufficient to identify” property (see table, right).
In the best scenario, a lien claimant would include the full legal description of the property on the lien claim, along with the municipal address. This describes the property sufficiently for any legal transaction, liens included.
Many states, however, do not require such a technically precise description of the property. While this may seem to place a lesser burden on the lien claimant, it can invite confusion. Tax lot and blocks, parcel numbers, municipal addresses, and written prose descriptions are all descriptions of the property – so what constitutes a sufficient amount of detail? This question is harder to determine. Unfortunately, the level of description required varies, even when the statutory language is the same.
Very restrictive jurisdictions may forced a lien claimant to provide the full metes and bounds legal description in order to have a valid mechanic’s lien, while a very permissive jurisdiction may allow the lien claimant to provide much, much less.
Courts in Different States Interpret the Statutory Requirement of a Sufficient Property Description Differently, Even If the Language is Identical
Oftentimes, the statutory language will read something like “a description of the property to be charged with the lien”, or “a description sufficient to identify the property”. This type of wording gives the court broad discretion to interpret what constitutes a proper description. Some court decisions have interpreted a description sufficient only if the property is identified by the tax lot and block along with the municipal address. Courts in other states have taken a potentially more intuitive approach and determined that a municipal address by itself is probably sufficient to identify the property being charged with the lien (especially when the property is to be reasonably identifiable by a person familiar with the location).
What this creates, however, is potential confusion for the lien claimant. Not only is the lien claimant required to research the mechanics lien statutes to find out what the statutory language requires, he must also potentially perform legal research to determine how the courts have interpreted those provisions. And, unfortunately, even this is not the end of the story.
County Recorders/Clerks Arbitrarily Reject Liens For Indexing Reasons, Despite the Liens Being Legally Sufficient
This is a huge pet peeve of mine, and from a legal standpoint, it is utterly inexcusable. Some articles have been posted on this blog regarding the seemingly arbitrary decisions of recorders (specifically, and in general), and the ramifications of those decisions. I understand that being a document concerning a piece of real property, it is best to have a mechanics lien indexed in a certain manner, and with the other documents related to that piece of property; and, often this is done by the lot and block of the particular property (or through some other similar system).The clerks office is not in the position to make legal decisions regarding the validity of the lien itself
This is merely a clerical system decision. A lien may be perfectly valid with the description given, but the recorder will refuse to record because it is not in the form they want to see for their indexing. The practical reasons for wanting information correlating to the indexing system are clear. And, indeed, it would be much easier to locate the lien in the property records if indexed in that manner. Unfortunately, though, the county recorder is not allowed to make those decisions. If the recorder has to put the lien in a big box saying “unindexed” that is what should happen. The clerks office is not in the position to make legal decisions regarding the validity of the lien itself, and that is exactly what they are doing by rejecting it.
In my opinion, it seems like recorders are setting themselves up to be sued for this type of behavior. If a lien claimant loses lien rights because of an untimely lien, and the reason that the lien was untimely was due to the recorder’s refusal to record, it it likely that the lien claimant would have a strong case against the recorder if the property description on the original lien was legally sufficient. Additionally, one could imagine a situation (albeit less likely), where a lien claimant originally had a legally sufficient property description, but for indexing purposes was forced to change it by a recorder. This, as well, would likely open the recorder’s office to the possibility of legal action.
New Technology Should Have Ended These Arguments – But It Hasn’t
Now that GPS systems are standard to the majority of online maps, these property description disputes should be a thing of the past. It is relatively simple to use an electronic web-based mapping system, like Google Maps to find the exact coordinates of basically any spot on earth. This should make the property description for a mechanics lien simple. By using the location coordinates to identify the property, the lien claimant would be identifying the property to be charged with the lien specifically and to the exclusion of all other properties. This is exactly what is contemplated by even the most restrictive lien law statute. Unfortunately for the lien claimant, however, I see no application of this technology being used. And furthermore, any attempt to do so would likely be rejected by the recorder for indexing purposes, despite the fact that using the coordinates to identify the property is as exacting as possible.
In all, the lien claimant must successfully navigate 3 hurdles regarding the description of the property he is attempting to lien in order for the lien to be valid and successfully recorded.
How levelset Finds Missing or Incorrect Project Information
An entire division of levelset –JobSight – is dedicated to supplying project information for our subscribers. Find out more about how JobSight from levelset works by downloading our free, 3-page guide: