Filing a mechanic’s lien is a right only provided to certain parties working on a construction project. I’m frequently asked about whether a specific party’s work qualifies them to file a mechanic’s lien, and in fact, have created a “FAQ” post on the topic.  The short answer is  it entirely depends on the state’s lien law.

But sometimes, the answer can be even more confusing than than, as the Minnesota courts have demonstrated recently as they grapple over whether site work constitutes lienable services.

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To frame the issues, in Minnesota (like many other states), a party can file a lien only for materials, services and labor that improve the land.  When site work is performed which actually demolishes property or excavates land, the question arises as to whether this work actually contributed to the improvement itself.  One line of thought is that this work is part of the entire improvement project and subject to liens, and another line of thought is that it’s work done to prepare for the improvement, and not part of the improvement itself.

Usually, an entire state will take a certain position.  As highlighted by Alden Pearson’s blog, however, there appears to be conflicting unpublished decisions on this question in Minnesota.

Back in April, Alden Pearson, PA, posted about an unpublished Minnesota Court of Appeals decision holding that “clearing and grubbing associated with excavation work was considered a visible improvement for a lien to attach.”  The case was Consolidated Lumber Company v. Northern Lakes Construction of MN.

Just this week, however, Alden Pearson notified us of another unpublished Minnesota Court of Appeals decision that appears to conflict with the Consolidated Lumber holding. In this case, “clearing, grass removal and silt retention was unrelated to demolition and erection of a house on property,” and therefore, a lien could not attach for this work.  That case is Hart Foundations, Inc. v. Christensen, et al.

What is a Minnesota contractor or supplier to do?