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Can I file the mechanics lien with only a text approval to start work

CaliforniaConstruction ContractRight to Lien

I have a customer that refuses to pay any money and we completed the work 4 wks ago. He says that since he never signed the contract we will have to wait. He did how ever respond via text for us to start the work on his home and gave us a date to start

1 reply

Sep 4, 2018
I'm sorry to hear that you've gone unpaid. Before getting too deep into details, it's worth mentioning that a Notice of Intent to Lien can be effective to compel payment regardless of whether a lien filing is an option. Because a mechanics lien is such a drastic remedy for owners and prime contractors, the mere threat of a lien is often enough to get the ball rolling on payment. We wrote about the idea in depth in this article "Notice Of Intent To Lien May Be Enough To Get You Paid", and you can download the form for free here. Further, sending a Notice of Intent to Lien can help escalate the dispute without actually having to utilize a mechanics lien, and that's usually preferable for everybody involved. Anyway, let's look at two different ideas here: (1) A California mechanics lien does not require a written contract, and (2) Text messages could constitute a contract. Under § 8008 of the California Civil Code, a "contract" is defined simply as "an agreement that provides for all or part of a work of improvement." No mention of the words "writing" or "written". Further, under § 8402 of the civil code, "A person that provides work authorized for a site improvement has a lien right under this chapter." The next section continues to say, "Work is authorized for a work of improvement or for a site improvement in any of the following circumstances: (a) It is provided at the request of or agreed to by the owner. (b) It is provided or authorized by a direct contractor, subcontractor, architect, project manager, or other person having charge of all or part of the work of improvement or site improvement." Again, no mention of a written contract. Thus, if work has been authorized by the owner or someone else working on the project, regardless of whether that authorization was provided via a written contract, the work may give rise to lien rights. Regarding text messages constituting a contract, it's possible for text messages to create a binding agreement whenever they have the necessary elements of a contract (very generally: offer, acceptance, and consideration). Thus, the argument may likely be made that the texts actually do constitute a contract. Of course, for more clarity, the text messages would likely need to be reviewed by a California attorney. They'd be able to review the communications in light of California laws and provide more insight. As a final note, if a lien claim does become necessary, this article should help: Mechanics Lien California: How to File a CA Mechanics Lien.
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