we didn't prelien the contractor because he owned the house at the time and after we did the work for him, he sold the house and he never paid us. Can we lien the homeowner? Is it possible their title insurance would cover payment to us?
1 reply
Apr 23, 2020
Most Wisconsin claimants will need to send preliminary notice in order to preserve lien rights. But, regardless of what's required - it's a good idea to send prelims on every job, regardless of what's required. Saving prelims for problem jobs will lead to more problems than solutions.
Exceptions to Wisconsin's preliminary notice requirements
With that being said, Wisconsin does have various exceptions to preliminary notice requirements. Looking to § 779.02(e) of Wisconsin's mechanics lien statute - contractors, subs, suppliers, etc. won't need to send notice on a project where the prime contractor doesn't have to send notice, themselves.
And, to be sure, if the prime contractor owns the project property, then that time contractor won't need to send notice (as laid out by § 779.02(d)).
Filing a mechanics lien after the property is sold
Making sure that a lien is filed before the property is actually sold is a good idea. That way, the lien can create urgency for making payment so that the lien will be released before the sale. Further, it takes a lot of variables out of the equation.
Generally, though - as long as the claimant has followed the necessary steps, a lien filed after a sale will still be valid. After all, mechanics lien claims tie to the project property, not to any particular individual. So, if a Notice of Intent to Lien is properly sent and if the lien deadline hasn't come and gone, then it's possible that a valid and enforceable lien could be filed. It appears that Wisconsin follows this general rules, as laid out in this article from von Briesen: Owner Roulette: Avoid Construction Lien Headaches.
But, for ultimate clarity on that point, it'd be wise to consult with a Wisconsin construction attorney who's got experience battling over Wisconsin mechanics liens. They'll be able to review your circumstances and documentation, then advise on how to recover payment.