With New Orleans and the Levelset team preparing for Hurricane Isaac, some of my thoughts were drawn to the intersection of mechanic’s lien laws and hurricane preparations. Since Levelset‘s main office is located in New Orleans, LA, hurricanes are a fact of life, and have become kind of a staple topic on this blog. Previous tropical weather related posts discussed Hurricane Katrina, Hurricane Gustav, and Hurricane Irene.
There are many issues that are important to remember in the intersection of storms and mechanic’s liens, since the inevitable damage leads to construction work. I think Scott will discuss the importance of remembering that if you travel to a different state to do work after a storm, the lien laws will be different than they are wherever you are coming from. This post is more basic – it must be determined if you have mechanic’s liens rights in the first place.
I do not want to spend time on discussing construction work done after the storm, construction work likely will qualify for mechanic’s lien protection, following the same determining factors as at any other time. Instead, I want to discuss work done in preparation for the coming weather.
While the same steps must be taken to determine if a mechanic’s lien is available for preventative work as it is for remedial work, the issues may be a bit harder to grasp. Remember, while mechanic’s lien laws differ in all states the basic concept generally stays relatively the same: For a mechanic’s lien to be an available remedy, the work performed must generally be incorporated into real property for its improvement.
This presents a thorny issue. Clearly hurricane preparation like boarding up windows and the like is performed on a piece of real property, but is it incorporated into the property, and is it an improvement? As is generally the case with mechanic’s liens the answer to this question s dependent on many factors, most importantly, what exactly was the work that was done? The mere shielding of a building’s windows by putting up plywood is generally not something that would be considered to be incorporated into the building – it is a temporary solution meant to shield the windows and then be removed. Work that is by nature temporary generally does not give rise to mechanic’s lien rights. Further, it is a stretch to claim that this type of work improves the property.
Can one argue that the property is “improved” because it didn’t sustain damage, i.e. claim the the value the property didn’t lose somehow translates to an improvement? Probably not. While I have not seen any case in which this argument was made directly, that the of situation would be, at best, a tough row to hoe. It seems then that temporary, protective measures – like boarding up windows – would be difficult work for which to claim a mechanic’s lien. But, in the words of Lee Corso on College Gameday, “Not So Fast, My Friend.”
If you happen to be in Louisiana, like we are, you may have an opportunity here. Scott has previously discussed how broadly Louisiana defines work giving rise to a mechanic’s lien under the Louisiana Private Works Act in the context of whether or not a party is entitled to a mechanic’s lien for erecting Mardi Gras viewing stands. Louisiana includes in its definition of work “modification…or other physical change.” While it is still unlikely that boarding windows qualifies for a mechanic’s lien, there is a bit of light to make a case here. Louisiana is very specific in its wording or what constitutes work, and yet, no mention is made that the work must be permanent in nature. It is at least a colorable argument that boarding windows and other temporary preventative work, whatever it may be, is a modification to, or least a physical change of, the property.
For non-temporary work that may still be classified as preventative in nature the same considerations apply, but the road to a lien is easier. Work such as delivering and installing an automatic back-up generator for when the power goes out is very likely lien-able work. The item is attached to the property and clearly improves it.
It is interesting to think about whether or not certain work is lien-able in the context of the different mechanic’s lien laws throughout our country. And if you need to file a lien for work done either before, or after, a hurricane – levelset can help.