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We were levied a lien against us, although we have a signed lien release from the gentlemans employer that filed the lie

We were working in SC, employed a sub who employed a man. He has since filed a mechanics lien for non payment. I have a signed lien release from teh sub who employed the gentleman. Is this legal for him to lien Rogue even though his employer signed a lien release? Rogue Response, LLC

1 reply

Nov 18, 2019

Generally, South Carolina employees and laborers are entitled to lien rights when they've provided work to an improvement but gone unpaid for their work - even when hired by someone other than the owner. And, one party's lien waiver will generally not be effective to waive another party's lien rights. So, with all of that in mind, it would appear that an employee may still be entitled to lien - even when their employer has submitted a mechanics lien waiver. Of course, when a subcontractor submits their lien waiver, there's a good chance that they've verified they paid all of their employees and laborers, as required. Plus, even if they haven't, it's still a subcontractor's duty to pay their employees. So, where a subcontractor's employee has filed a lien against the project due to the sub's failure to pay - the owner should be able to put pressure on the subcontractor to resolve the claim.

Considerations for sub-tier claimants filing South Carolina mechanics liens

If there's a Notice of Commencement filed on the project, a sub-tier claimant will only be entitled to lien whatever amounts are owed but unpaid between the GC and their sub. So, if a Notice of Commencement has been filed, and if full payment was made to the subcontractor, then the subcontractor's laborer should not be entitled to file a valid and enforceable lien claim. Further, if a lien claimant doesn't send a Notice of Furnishing Labor or Materials, as required, their claim will be limited. Most employees and laborers don't end up filing lien claims, themselves, so there's a chance that this notice was not sent and therefor that the lien may ultimately be improper or exceed what's allowed. Granted, when their employer has sent the proper notice, that may come into play and could potentially be deemed as sufficient, if push came to shove on the dispute.

What to do after a mechanics lien has been filed against the property

Every claim is different, and no one solution will help all owners keep mechanics liens from affecting their property. So, considering the drastic nature of mechanics lien claims, it's generally a good idea to consult with a local construction or real estate attorney in order to best understand how to resolve your unique situation. Additionally, consulting with your contractor and subcontractor should help, and demanding they resolve the lien issue is a reasonable proposition. With that in mind, here's a resource that should also be helpful: A Mechanics Lien Was Filed on My Property – What Do I Do Now?

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