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Do you need a contract to file a lien?

KentuckyBack ChargesChange OrdersConstruction ContractMechanics LienPayment Disputes

We’ve been working with a painter and agreed to pay him $6500 to paint the interior of our home. The night prior to him finishing up the project he sends over a handwritten list of “back charges” for $7,000. Keep in mind the entire project was supposed to cost $6500- so this new charge took the interior costs to $13,500. He claimed that this was for additional work he had been doing but he didn’t inform us or have us sign change orders. Previously we agreed to a change order for $2k so we assumed anything that was being done for the remainder of the project was covered under the original scope of work unless he presented a change order. We ended up giving him a check for only the remaining part of our original contract and having him escorted off of our property by the police. He’s now threatening to place a lien on our building and sue us unless we pay him $15,000. We never physically signed a contract with this guy- does that mean he can’t file a lien? Obviously there was an offer, acceptance and consideration so it was in every essence a contract, but does he need a signature on a contract in Kentucky to file a lien?

1 reply

Mar 12, 2020
Kentucky's mechanics lien statute doesn't seem to mandate a written contract. KRS § 376.010(1) states, in part, that a claimant must have agreed to perform work "by contract with, or by the written consent of" the owner, GC, a sub, etc. in order to have the right to lien. Because the statute specifically calls for a contract or for written consent - it follows that the contract might not necessarily need to be in writing in order for mechanics lien rights to be available. After all, if the legislature intended for a written contract to be required, they'd have put "written" in front of contract just like they put "written" in front of consent. So, an owner might not be able to rely on the fact that the contract wasn't in writing in order to try and upend a mechanics lien claim filed against their property.

Amount of a Kentucky mechanics lien filing

With that being said, that doesn't mean a claimant can simply file a lien for whatever amount they deem acceptable. Rather, the agreed-upon price should generally be followed. And, if the agreed-upon price is't necessarily clear, then looking at the value of the work provided - potentially compared to what others charge for similar work - might provide some insight into whether the lien has been overstated. Of course, mechanics lien rights are generally only available for work that's been authorized. So, if the claim for payment is overstated because the claimant opted to perform work that was not agreed upon, then the owner may well have an argument that the unauthorized work isn't lienable. But, without a written contract, it will be harder to identify what work was within the scope of the original contract, and it will be hard to identify a price for that work.

Responding to the threat of a mechanics lien

Mechanics lien threats must be taken seriously due to the power of lien filings. And, when a lien claim will soon be filed, it might be wise to seek out a Kentucky construction attorney for help in warding off the claim. They'll be able to review what project documentation you do have, along with communications and other relevant circumstances, then advise on how to proceed. Plus, they may be able to weigh in on the matter of how the failure to use a written contract might affect a potential lien claim. Additionally, this resource should help with determining how to respond to the threat of a lien claim: I Just Received a Notice of Intent to Lien – What Should I Do Now?
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