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Mechanics lien on my property by non-party to contract without a license?

I contracted with a contractor for a construction job. Who I assumed to be his employee, "Brad", signed off on the construction contract as an officer on behalf of the contractor. Over a year later, Brad sends me a preliminary notice to lien. Apparently, he had some kind of agreement with the contractor before to work on my project that I was never aware of. Brad is not licensed and was only a consultant. Can he put a mechanics lien on my property? Can't I just tell him that he has to go to the contractor to get paid? The job is not yet finished.

1 reply

Nov 29, 2018

I'm sorry to hear about your situation. We received a question very similar to this one recently (the consultant was named "Mike" instead of "Brad"), so a lot of the information and wording will be taken from the response to that answer. If you'd like to take a look at that question, you can find it here. First, in California, if a party is performing work that requires licensure, they must be licensed in order to file a mechanics lien. In fact, if licensure is required but that license is not held, the party who has performed work may be open to pretty serious consequences. We discuss California licensure in depth here: Contractor’s License California – Understanding the Requirements. Next, it's worth noting that when someone has been hired by a general contractor, they could have a lien right against the property - regardless of whether the owner is actually aware of their presence. However, so that a lien does not pop up out of no where (in a situation such as this one), California requires that claimants who were not hired directly by the property owner send preliminary notice at the start of the job. Such a notice works to inform the owner that others are working on the job, and if payment isn't made, that the party sending notice could potentially file a lien claim. When that notice is required and not sent, a later-filed lien claim would very likely be deemed invalid (unless the lienor is merely a laborer). When a potential lien claimant has threatened a lien but has failed to follow the requirements to do so, notifying them that their lien filing may be invalid for failure to send notice could help fend off the claim in the first place. Further, it may also be worth questioning whether the consultant work performed was the type of work that could give rise to lien rights. Typically, mechanics lien rights are available to those who provide labor and/or materials for the improvement of property - work like consulting might not qualify for mechanics lien protection, depending on the work that was done. For more background on who can file a California lien, this resource should be helpful: California Lien and Notice FAQs. Informing a potential claimant that their lien would be invalid or even fraudulent can help to fend off lien claims. Another option to help try to get a contractor and their consultant to resolve their dispute could be to remind the contractor that if a lien claim is filed, the contractor will be required to defend the owner under § 8470 - so it's the contractor's problem too, and it could cost them a lot of money to fight a lien claim. Changing gears a bit, it's also worth discussing exactly what type of notice was sent here. If a preliminary 20-day notice is what was sent - that notice is pretty standard and might not actually indicate that a problem is present on the project (more on that notice here). Lastly, it's also worth noting that even where lien rights might not be present and even where a filed lien might ultimately be invalid - a lien filing could still take place. California county recorders offices typically have neither the bandwidth nor the authority to investigate each lien claim filed. Thus, potentially, even if a claim is bogus, the property owner will need to work to have a filed lien removed. When a lien claim is fraudulently made, serious penalties will come into play. At the same time, proving fraud on a lien claim can be a challenge.

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