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How do I challenge an improper lien in WI

A shoddy contractor improperly poured a concrete floor in my basement. He will not supply me with the delivery ticket although it is obviously to wet a pour. Concrete splashed up the wall and onto the ceiling and cracked like shattered glass. This $4000 job will cost me $17000 to repair. I have paid for two inspection (home and engineer) reports saying poor planning and poor execution. I've shown pictures to forty contractors, all say not acceptable. ACI and Portland Concrete will not get involved in residential but agree not acceptable (off the record). His insurance company is refusing to pay without inspecting. Concrete supplier has instructed staff not to talk to me and will not allow quality control person to inspect. This shoddy contractor has filed a mechanics lien on me with false dates to meet deadline requirement. I have had three lawyer consults, all say good case but economics are bad. Will cost another $500 to peruse. Contractor has a right to appeal if I win judgement. Someone please help me!!

1 reply

Feb 27, 2020

If a contractor's insurance company won't pay without first inspecting - then it might be wise to let the insurer inspect the issue. That way, they'll see the flawed work and you might be able to proceed with the insurance claim. And, if the work is as bad as it sounds, then there should be little question as to whether the work will be deemed unacceptable. If the insurer is reluctant to send someone out, then something as simple as regularly pestering them until someone is sent out could be enough to do the trick. Regarding an appeal - that's true of every legal action. The losing party in a trial will always have the opportunity to appeal the decision to a higher court (to the extent that there is one). i.e. A loss in trial court can be appealed to an appellate court, a loser of an appeal can appeal to the supreme court, etc. So, the potential for a claimant appealing the decision shouldn't factor into a decision on whether or not to pursue a legal claim. Plus, appealing a decision is expensive and time-consuming - and, if a contractor knows they have a losing case, there'd be little reason to appeal a trial court's decision.

How to challenge an improperly filed lien

Let's look at a few options for dealing with a lien claim filed against your property. But, before diving in, this article should have some helpful info: A Mechanics Lien Was Filed on My Property – What Do I Do Now?

Threatening to bring legal claims

The easiest way to have a mechanics lien removed is to have the claimant remove the lien themselves. So, if an owner can convince the lien claimant that their lien is improper or could even give rise to legal liability, then it might be possible to have the claimant remove their lien. On that front, note that any time the amount on a lien is exaggerated, or any time the dates on a given lien claim have been falsified, then the lien claim would be at serious risk of creating a world of problems for the lien claimant. In fact, an issue (seemingly) less serious than lying about the dates on a mechanics lien landed a Wisconsin contractor in jail a few years ago. So, if a claimant could clearly show that the lien is flawed, sending an official demand for the release of the lien - along with the help documentation proving project dates, written statements about the alleged flaws in the work, photographs showing obviously inadequate work, etc. - could help to convince a contractor to drop their lien. And, including specific legal threats, like invoking Wisconsin's criminal penalties for slander of title, will help to move the needle even further.

Officially challenging the filed lien

Hiring a lawyer to challenge a mechanics lien filing is certainly a good step. And, showing the attorney the relevant project documentation (photographs, evidence of false information included on the lien, reports from engineers/inspectors, other contractors' opinions, etc.) should help to show them it's a cut and dry, winnable case. And, if an attorney can get a quick win, and if you're willing to pay - potentially above their market rate - it should be possible to locate an attorney who will take it on. If you're struggling to find an attorney to represent you, it may also be helpful to reach out to a legal aid group, or to the state bar association. While it's rarely a good idea to appear pro se in court, challenging the lien yourself may be an option. Individuals are entitled to appear before a court to represent themselves - and, if you're confident about your chances, that may be an option. But again - appearing pro se is a dangerous game and could end up backfiring.

Pursuing a different claim in small claims court

It might not directly help with a lien claim, but taking a contractor to task in small claims court could be helpful. An owner will generally be able to pursue damages in small claims court for things like breach of contract or even construction defect claims. And, to be sure, individuals are able to pursue claims in small claims court a bit more easily than traditional courts when operating without a lawyer. If the owner can prove the contractor acted improperly and obtain a decision at small claims court, that would undermine the contractor's argument that payment is owed and put another hurdle (albeit a small one) between the contractor and their ability to recover on their lien. Additionally, it might make the case look more favorable to an attorney if you still want to challenge the validity of the lien claim.

Waiting out the mechanics lien

Finally, waiting out a lien claimant is always a potential option. In Wisconsin, a mechanics lien claim will only be effective for 2 years after the lien is filed. After that, the lien is no longer enforceable. If a contractor knows their lien claim is bogus, then they'll probably be less inclined to bring a mechanics lien enforcement suit. And, if the property isn't being sold or refinanced, or if there isn't some other reason that's putting pressure on the property owner, then a lien filing might not practically affect the owner all that much. While hiding from a problem rarely makes it go away, mechanics liens have a shelf life. So, if a claimant isn't making efforts to collect on their lien claim, waiting for the lien to expire might be an option for an owner who's relatively confident the claimant won't enforce their lien.

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