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I received a letter from an Attorneys Office thats dated that they are going to file a lien on my dads house...Is he still able to do that?

North CarolinaMechanics LienRight to Lien

We hired a friend of one of our family members to remodel my dads house after he passed away (No contract signed) they tore up more than they fixed.. they were suppose to complete the project within 3 weeks that was back in January 2019 which did not happen it kept being pushed and pushed and Finally after continuing no one showing up for days and days I had to contact the Sherriffs department to have them get their stuff out and that was on March 18th ... We had to fix and finish the home ourselves and put up on the market we are also fighting against a foreclosure process which this contractor knew at the beginning. We have not heard from them and have not paid anything because the damage they did,, I was going to file a small claims for the damage they caused and us refixing but was told by my family to wait and we were fine with just letting it all wash out and then if he filed within his 120 days I would go file a Small claim in court. They destroyed my dads kitchen cabinets we had to tear them out and replace costing more money (I do have pictures) as well as his bathroom counter top (pics also and much more.. What my question is Today 7/24 I received a letter from an Attorneys Office thats dated that they are going to file a lien on my dads house for $7500 Hes claiming the last date of furnished material work etc was on March 28th and that is a lie. I am in process of getting sherriffs report showing it was on March 18th in that being His 120 days to file would have been on July 17th... Is he still able to do that? Thank

1 reply

Jul 25, 2019
I'm so sorry to hear about that. Let's take a look at two pertinent factors: (1) the timeline for lien claims, and (2) what amounts can be liened.

North Carolina mechanics lien deadline
As you mention above, a North Carolina mechanics lien must be filed within 120 days of the last furnishing of labor or materials to the project. Now, this doesn't refer to the last date when materials or tools were present. Rather, this refers to the last date when work was done on the project pursuant to the agreement for work. So, in a situation where work hasn't been performed in far more than 120 days, but where tools and materials may have just been lying around, those tools and materials lying around won't extend the lien deadline just by themselves. Rather, the deadline would run from the last time work or materials were actually provided to the job site in pursuit of completing the contract. Meaning, the lien deadline may be much sooner in situations like the one you described above.

What's more, a lien claim may only be filed after payment is owed for work performed. As in, if payment isn't yet owed for the work that was performed (or supposed to be performed), a lien claim couldn't be filed. Generally, if a claimant has done work and not been paid for the work, then they may be entitled to file a lien - even if payment was supposed to come later. But, where a claimant hasn't done the work giving rise to their lien claim, they're probably not owed for the work that was supposed to be taking place. Further, when the work actually damaged the property rather than improved it, that might open up a whole host of other issues for the claimant.

Plus, as mentioned in your question - if there's obvious proof that the claimant is lying about their last furnishing date and that the deadline to lien has come and gone, it's extremely unlikely that a valid and enforceable lien could be filed. While the claimant might actually be able to get their lien filed, that lien would be easily challenged, and it should be hard to show that it was fraudulently filed. In terms of preventing the lien filing - producing an official police report that shows the last furnishing date is inaccurate should help to show that a valid lien cannot be filed, and if it's obvious a lien claim would be fraudulent, an attorney should back off from filing that lien.

Amounts that can be liened
As hinted at near the end of the last section above: Mechanics lien rights are generally available for work done but not paid for. So, a lien claimant is not entitled to amounts that would be owed under contract if the work was never actually done. i.e. A claimant can't file a lien for the full price of their contract if they didn't actually perform the work that was set out in the contract.

Further, when it's easy to prove that the work done actually damaged the property and required funding and work to repair that damage, it should be relatively easy to show that there's no basis for the lien.

I hope this information was helpful! If you have any further questions about North Carolina mechanics liens, this is a great resource: North Carolina Mechanics Lien Guide and FAQs. Plus, you can always come back and post another question here at the Expert Center.
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