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How to proceed to collect for plant material delivered to a job site.

North CarolinaMechanics Lien Payment Disputes

delivered plant material to job site as requested by landscaper. Landscaper's check returned NSF and he does not answer phones, return calls, texts or messages. Certified mail undeliverable--no one available to accept it. The plants are on a subdivision entrance owned by DR Horton Homes. What recourse do I have?

1 reply

Mar 7, 2018

Typically, determining whether landscaping (or in this case - supplying materials for landscaping) is lienable work can be a pain. Luckily, North Carolina makes things more clear. Generally, liens are available to parties who provide labor or materials for the improvement of real property. Under the North Carolina lien statute, to "improve" property includes "to furnish materials, including trees and shrubbery." While the type of work provided may be lienable, other factors - such as notice requirements (which can be found here) or what "tier" a party is from the owner - will determine whether mechanics lien rights are available. First-tier, second-tier, and third-tier subs and suppliers are all entitled to lien rights. However, unlike other states, parties not in privity with the owner file what's called a "Notice of Claim of Lien Upon Funds." Delivery of this notice "freezes" the funds in the hands of the party holding said funds. If those parties distribute the funds in spite of the notice, the distributing party may be personally liable to the notifying party. If the wrongful payment is made by the property owner, this allows the sub or supplier to file a lien against the property. Regarding deadlines, a Notice of Claim of Lien Upon Funds may be sent at any time - but the earlier the better since project funds may not be present if a claimant waits. For a lien on the property, a mechanics lien must be filed after the debt becomes due, but within 120 days from the date of last furnishing labor or materials to the project.

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