Anyone working in the construction industry should be familiar with mechanics liens. They are a powerful tool to ensure you get paid what you’ve earned on a project. Not only do lien rights protect traditional construction work, but it also covers design professionals such as architects, engineers, and land surveyors. But what about the people who test soil and rock conditions on the property? Can geotechnical engineers file a mechanics lien for observational services in Delaware?
Mechanics lien rights in Delaware
To see what types of work are protected under Delaware mechanics lien laws, the first place to look is Delaware Code §2702. Subsection (a) mirrors most mechanics lien laws, stating that lien rights are available for the “erection, alteration, or repair of any structure.” The statute then continues to subsection (b) which outlines additional services that are protected by lien rights:
“…labor performed and materials furnished in plumbing, gas fitting, paper hanging, paving, placing iron works and machinery of every kind in mills and factories, bridge building, the erection, construction and filling in of wharves, piers and docks and all improvements to land by drainage, dredging, filling in, irrigating and erecting banks and services rendered and labor performed and materials furnished by architects.”
That’s a lot to unpack! And, in fact, this is not a completely exhaustive list. So what about services that test and observe the actual land, soil, and rocks where the project is being constructed? Are those types of geotechnical services covered by the mechanics lien statutes in Delaware? A recent Superior Court case says no.
Geotechnical services firm files lien for non-payment
The case in question is Geo-Technology Associated, Inc. v. Capital Station Dover, LLC
- Owner: Capital Station Dover, LLC (Capital)
- Claimant: Geo-Technology Associates, Inc. (GTA)
Capital had hired GTA to perform geotechnical and construction observation services for three separate structures owned by capital. GTA was hired to perform a wide array of services. This included soil testing and evaluating the ground and soil for the excavation and placement of buildings, parking lots, concrete slabs and foundations, and observing the foundation and steel reinforcement work.
When Capital failed to pay GTA in full, they filed a lawsuit to enforce a mechanics lien, along with a breach of contract and a claim under Delaware’s prompt payment laws. In response, Capital filed a Motion to Dismiss. For purposes of this article, we’ll focus on the lien claim.
Strict reading of the statute bars lien claims for observational & testing services
GTA argued that the geotechnical services they provided were covered under Delaware’s mechanics lien laws. They believed that geotechnical and observation services were provided in furtherance of the construction or repair of the buildings on Capital’s property. The Court disagreed.
The judge stated that they did not fall under the general rule of protected, lienable work in Delaware. Nor did they fall under the list of additional services that may be protected.
Subsection (b) of the lien statute isn’t meant to be an exclusive list of services, but rather an explanation and expansion of the general rule. They cited a previous case where the installation of a new driveway entrance and landscape work was protected. However, in the current case, the geotechnical services performed were observations and testing, which wasn’t covered by Delaware’s mechanics lien statute. There was no “erection, alteration, or repair of any structure.”
The court granted the motions to dismiss, and the lien claim was discharged.
Be sure you are protected before filing a lien claim
A majority of states will interpret their mechanics lien laws in the same fashion. Mechanics liens are statutory rights, and they will be strictly construed. If you are ever in doubt whether your work will be covered by mechanics lien rights be sure to check your state statutes, or you can head over to our state mechanics lien FAQ pages for some guidance. F
ailing to do so and filing a claim can leave you paying attorney fees and court costs of the other party. Not to mention opening yourself up to potential liability for filing a wrongful or fraudulent lien claim.