The act of signing a mechanics lien is more complex than it would seem. The danger of getting it wrong was illustrated in this recent case, and that inspired this post about what goes into making sure you get your signature right.
Who Can Sign Your Mechanics Lien?
The first thing you need to think about is who is authorized to sign your mechanics lien in the first place.
Some state statutes could absolutely care less who signs the mechanics lien, simply requiring that the “claimant or its agent” sign the lien statement. A requirement like this makes a lot of sense because mechanic liens are frequently filed by companies, and companies by their very composition must have some sort of “agent” sign the document. Even if the company’s president signs the lien, that person is still just an agent of the company.
When states have this “claimant or its agent” language, it is largely okay for anyone with authority to sign the lien. The company can authorize a lawyer, a 3-rd party service, a secretary, or just about anyone to sign their lien statement.
There are a number of states, however, that are very restrictive in who is allowed to sign a mechanics lien. In large part, these restrictions arise because the statute requires the person signing the lien to be the claimant or have some type of personal and direct knowledge about the debt.
A great example of a strict state is Connecticut, where the mechanics lien must be filed by the claimant, without any leeway for absolutely anyone else. Courts have dismissed mechanics lien claims even when they were signed by a claimant’s attorney, as was the case in Jay Alpert Architects, AIA, PC v. Trellevik. The court declared:
The requirement of § 49-34 that the mechanic’s lien certificate be sworn and subscribed to by the claimant clearly contemplates that the claimant is the person maintaining the claim. There is no ambiguity in the statutory language of § 49-34(1)(C). The claimant is the person “performing the services or furnishing the materials.” The seriousness of the requirement that there be a performance or execution of an oath by the claimant swearing that the facts contained in a mechanic’s lien certificate are true…
Does Your Mechanics Lien Need To Be Notarized?
To notarize, or not to notarize?
Contrary to popular belief, every mechanics lien or bond claim need not be notarized. While most states require these claim statements be notarized, it is not required everywhere, and there is a solid number of states that allow these claims to be filed and delivered without notarization.
The states of Louisiana and California are examples of states that do not require private mechanics lien statement to be notarized.
If you’re unsure about the notarization requirement, however, you ought to err on the side of caution and just have the statement notarized. But, of course, beware of messing that up, as is explored in the next section.
The Differences Between Signing, Acknowledging, Swearing and Testifying Under Oath
Geeesh! Must there be more wrinkles and complications?
The case in GSM Industrial v Grinnell Fire Protection Systems Co is a good illustration of the different ways you can sign a document. In that case, a lien statement was signed by the right person and it was notarized. But, the notarization was an “acknowledgement only” and not “under oath.”
Many people think getting a document notarized is a simple affair; a one-size-fits-all event. That is not the case.
Notarizing a document in its simplest form is simply getting a certification by an independent third party that the person who signed the document actually signed the document. It is not a signature under oath or even an acknowledgment. It is just proof that the person who signed the document actually put his or her hand to the paper.
Most mechanics lien notarization requirements are more robust than this, requiring that the claimant “swear to” the contents or sign “under oath.” This means the notary block must be more sophisticated and must declare that the claimant swore that the statement was true and that he or she was signing under oath, and in many cases, the notary must actually perform a “ceremony” where the signing party raises their hand and makes the oath out loud.