What are our lien rights for a geotechnical/environmental consultant working directly for the owner?

2 months ago

For a proposed residential project in Oakland, California, we provided on-site geotechnical and environmental investigation, sampling and testing services hired directly by the owner and we are not getting paid. The project is stalled and has not gone to construction yet, however, we have been on the site to provide investigation services and on-site sampling and testing for site remediation/improvements.

Senior Legal Associate Levelset

That’s an interesting question, and I’m sorry to hear that you’ve had some problems getting paid here. Mechanics lien claims are generally available for those who have performed work that improves real property. But, in order for lien rights to arise – the property must be permanently improved. So, where work has been performed but does not actually improve the property, and where no work has been undertaken to improve the property (yet), a mechanics lien might not be the most appropriate remedy.

Now, California does provide some parties the ability to file a Design Professional’s Lien when work is done prior to the improvement of property. Though, in order to be considered a “design professional“, a claimant must generally be a architect, landscape architect, professional engineer, or land surveyor, and must be licensed. So, where a claimant does not fall into one of these categories, a Design Professional’s Lien claim might not be an appropriate option, either.

If work is actually begun at some point, a claimant might be able to file a mechanics lien since mechanics lien rights are available to “A person that provides work authorized for a work of improvement…” and “work” is defined as “labor, service, equipment, or material provided to a work of improvement”. But even still, if the work was done and didn’t, itself, permanently improve the property – a lien claim might not be appropriate.

Of course, that doesn’t mean there are no tools available for recovery. For one, the mere threat of a mechanics lien or design professional’s lien might be enough to compel a property owner to make payment. Mechanics liens and design professionals liens represent a serious remedy, and owners will generally go out of their way to make sure no liens are filed on their property. So, by sending a document like a Notice of Intent to Lien, a claimant can show the owner they’re serious about payment and that could lead to payment – regardless of whether a lien can or will be filed.

For more information on other options that might be available for recovering payment, this article will be valuable: Can’t File a Lien? Here Are Some Other Options For Recovery.

For more information on California’s mechanics lien laws, this resource should be helpful: California Mechanics Lien and Notice Overview, FAQs, and Statutes.

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