Home>Levelset Community>Legal Help>We live in Kansas and filed a mechanics lien on the property in which we resided at for 5 yrs. The owners evicted us after we repaired the foundation and they now are not able to get the title released to purchasers. How do we go about the intent to foreclose? And does there have to be an auction to sell the property to get paid or can the owners make a decision to give us the home as payment for the lien?
We live in Kansas and filed a mechanics lien on the property in which we resided at for 5 yrs. The owners evicted us after we repaired the foundation and they now are not able to get the title released to purchasers. How do we go about the intent to foreclose? And does there have to be an auction to sell the property to get paid or can the owners make a decision to give us the home as payment for the lien?
That's an interesting question. First, we can look at how a Notice of Intent to Lien can be utilized. Then, we'll look at how payment is made after a lien is filed. And finally, I'll briefly touch on Kansas lien rights and who has the right to lien.
Regarding a Notice of Intent to Foreclose - this is not a required notice in Kansas, so it can really be sent however a lien claimant likes. Often, claimants will send this document as a certified letter so that it seems more "official", but it can really be given however the claimant deems necessary. But, essentially, a Notice of Intent to Foreclose is just an official letter that states the filed lien claim will be enforced if payment isn't quickly made. Regardless - considering the potential fallout from a mechanics lien foreclosure, a Notice of Intent to Foreclose is typically taken pretty seriously.
Regarding payment on a filed lien... Mechanics liens can force payment in a number of different ways (we found 17). But, most commonly, mechanics liens are resolved without actually needing to proceed with a lien foreclosure suit. If a mechanics lien claim isn't being taken seriously, sending a document like a Notice of Intent to Foreclose can help convince them to make payment before a suit is brought. But, even in a situation where a lawsuit is brought to enforce a filed mechanics lien claim, generally, a successful claimant can obtain payment before the foreclosure of the property is actually initiated. Typically, an owner would rather pay the claim than let their property be foreclosed upon, and they'll have the opportunity to do that.
A quick note about mechanics lien rights
It's also worth touching on exactly who is entitled to lien rights. Generally, mechanics lien rights are available to those who permanently improve the property, with authorization from the owner, and go unpaid for their work. When payment isn't expected for the work performed, and when a lien claimant didn't actually perform work giving rise to the claim, there's always a chance that a filed lien claim could be successfully challenged. In Kansas, under § 60-1101 of the state's lien statute, lien rights are available as follows: "Any person furnishing labor, equipment, material, or supplies used or consumed for the improvement of real property, under a contract with the owner or with the trustee, agent or spouse of the owner, shall have a lien upon the property for the labor, equipment, material or supplies furnished at the site of the property subject to the lien" So, before deciding to enforce a filed lien claim, it's likely worth determining whether a lien enforcement will be possible, given the circumstances giving rise to the claim. Consulting with a local construction attorney so that they can review the circumstances as well as any relevant documentation would likely be a good first step in determining how to recover on a filed lien.
For more information on who is entitled to Kansas mechanics lien rights, as well as other pertinent information, this is a great resource: Kansas Mechanics Lien Overview.