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Mechanics Lien Questions
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Mechanics Lien
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I have a customer that is not answering my emails. They have an outstanding extras bill that they have not paid and the work has been performed. They also have a contract for a project that is not completed. We have materials (quartz) that need to be installed but again they won't answer emails. They have been difficult and posted bad reviews about us and said - do not contact us, correspondance should go through our attorney. Then turned around and said they have not retained an attorney and want us to move forward. Now they won't answer emails. The total remaining contract is 15,333.92 and the extra bill they owe is roughly another 4000.00. We want to install the Quartz and have them pay up to that part of the job and the extras invoice. Then we would like to part ways with them. Should I lien the property for the full contract? All subs have been paid in full. All materials purchased except trim and 3 doors. They owe 25% of the project.
ColoradoI filed a mechanic lien in colorado. The house is under contract and set to close. what is my next step do I need take him to court as well?
ColoradoI am a contractor and recently finished a basement for a customer. The project was 99% complete, literally an hour of work left, then they decided to "fire" us. They had paid all of their invoices up to this point, but are disputing the final invoice; even though it was discounted for the work they did not let us finish.
UtahA contractor i worked for filed a lien against my parents house claiming he did work there when he never had. He stated he did 100k worth of work before I even met him for a job. What do I do now? I have started with a labor lawyer for all the back pay he owes me. But what do I do about his falsified mechanics lean?
New YorkMr. Tootill:
I reviewed your attachment to your email below just now. Ferguson’s lien is invalid because it does not strictly comply with Ark. Code Ann. Section 18-44-101 et. seq. As I’m sure you know, it is very difficult to comply with all of Arkansas’ lien requirements and the slightest misstep invalidates the entire lien. Ferguson’s purported lien has a number of fatal flaws as follows:
1. The October 8 lien notice identifies “Ferguson Enterprises, Inc.” and “Ferguson Enterprises, LLC” as the entity/entities that supplied the materials in question but the “Lienor” on the actual purported lien is “Ferguson Waterworks”. Thus the lien claimant did not give the notice required by ACA 18-44-115.
2. The lien must be filed by the lien claimant. See ACA 18-44-117(a). Ferguson’s was filed by some sort of “disclosed and limited agent”. At a minimum that invalidates the lien and it also likely subjects “Levelset” to liability for the unauthorized practice of law.
3. The second pages of the purported lien references “the above-identified HIRING PARTY” but that party is not identified “above” or anywhere else within the lien.
4. ACA 18-44-117(a)(2)(A) requires the lien account to be “verified by affidavit” (by the lien claimant). Ferguson’s purported lien doesn’t contain an affidavit. Instead it contains a short “Signature of Claimant, and Verification” section, which was not completed by a Ferguson representative and instead by someone else, who did not swear that the facts were true. The wording clearly indicates that his purported verification, which is also referred to as a “certification”, is made “upon my information and belief that the foregoing is true and correct,” and “I believe them to be true”, but nowhere does it say that he has knowledge of the facts and circumstances that gave rise to the lien and that they are true and correct. Instead he only claims to “thereby have knowledge of the facts” because he read “the foregoing Notice of Claim of Lien” which he himself created. That’s circular reasoning. In short, Ferguson cannot seriously contend that its purported lien was “verified by affidavit”.
5. In addition, and as an entirely separate fatal matter, the “Signature of Claimant and Verification” section does not contain any language swearing that the legal description is correct, as required by ACA 18-44-117(a)(2)(A).
6. Although it may or may not invalidate the lien claim, I note that the fifth page of the purported lien document contains a check from Jim Butler Construction Co., Inc., made payable to “Bryan Hodge exc & Ferguson”.
7. Perhaps the most glaring deficiency is that ACA 18-44-117(a)(1)(B) requires that the “just and true account” (the lien) contain “an affidavit of notice attached to the lien account”. Ferguson’s purported lien does not contain anything that could be interpreted as an affidavit of notice. No affidavit at all.
8. ACA 18-44-117(a)(3) requires that the (missing) affidavit of notice contain there things: (i) “a sworn statement evidencing compliance with the notice provisions of 18-44-114 – 18-44-116”; (ii) “a copy of each applicable notice given …”; and (iii) “a copy of the proof of service required under 18-44-114”. Pages 6 – 11, which are the only pages that could possibly apply here, don’t comply with any of those three requirements. Although pages 8 and 9 do say “I declare under penalty of perjury that the foregoing is true and correct,” there is no verification, jurat, or other notary section anywhere. Sworn statements have to be made before a notary to be effective. See Rasmussen vs. C. J. Horner Co., Inc., 255 Ark. 1030, 505 S.W.2d 225 (1974) “The lien account is neither verified by the clerk nor does the evidence show that any oath was given. Without question, under our cases, one or the other was essential … To make a valid oath or affirmation there must be some overt act which shows that there was an intention to take an oath or affirmation on the one hand and an intention to administer it on the other; for even though such intention actually did exist, if it was not manifested by an unambiguous act, perjury could not be based thereon. If the attention of the person making the affidavit is called to the fact that it must be sworn to, and, in recognition of this, he is asked to do some corporal act, and he does it, the instrument constitutes a statement under oath, irrespective of any other formalities.”
Also, Exhibit 3 is unsigned, not notarized, and is only one notice. It indicates that it was sent by certified mail (and gives the certified mail numbers), yet “the proof of service required under 18-44-114” is nowhere to be found.
9. Finally, the actual “NOTICE TO PROPERTY OWNER” language is what is commonly referred to as the “commercial language”, which only applies under ACA 18-44-115 to “nonresidential real estate” and “residential real estate containing five (5) or more units”. I think everyone would agree that the property in question is residential real estate but it does not contain “five or more units”.
10. Many, many Arkansas cases recite something along the lines of the following, which is from Books-A-Million, Inc. v. Arkansas Painting Specialties Co., 340 Ark. 467, 10 S.W.3d 857 (2000):
The crucial issue before us is the construction to be given Arkansas lien statutes.
In particular, whether the notice provisions of Ark.Code Ann. § 18–44–115 are to be strictly construed, thus requiring strict compliance, or whether they can be satisfied by substantial compliance. We hold that strict compliance is necessary. Any statute in derogation of the common law will be strictly construed. Although the General Assembly has the power to alter the common law, a legislative act will not be construed as overruling a principle of common law unless it is made plain by the act that such a change in the established law is intended. Hartford Ins. Co. v. Mullinax, 336 Ark. 335, 984 S.W.2d 812 (1999). It has long been held that mechanic's liens are in derogation of the common law. The materialmen's lien and the construction money mortgage lien are in derogation of common law. Both are creatures of the legislature. The legislature is presumed to know the decisions of the supreme court, and it will not be presumed in construing a statute that the legislature intended to require the court to pass again upon a subject where its intent is not expressed in unmistakable language. Rhodes v. Cannon, 112 Ark. 6, 164 S.W. 752 (1914); Spickes Bros. Paint. Cont. v. Worthen Bank & Trust Co., 299 Ark. 79, 771 S.W.2d 258 (1989). In Valley Metal **860 Works, Inc. v. A.O. Smith–Inland, 264 Ark. 341, 572 S.W.2d 138 (1978), we stated, “Our lien statutes are in derogation of the common law and we construe them strictly since they provide an extraordinary remedy that is not available to every merchant or worker.” See also, Christy v. Nabholz Supply Co., 261 Ark. 127, 546 S.W.2d 425 (1977); Dews v. Halliburton Industries, Inc., 288 Ark. 532, 708 S.W.2d 67(1986); National Lumber Co. v. Advance Development Corp., 293 Ark. 1, 732 S.W.2d 840 (1987); Gray v. Nations, 1 Ark. 557 (1839). … The notice provisions contained in these statutes must be complied with strictly.
11. If this lien is litigated, the loser pays the winner’s attorneys’ fees and costs under ACA 18-44-128. Ferguson’s purported lien is a cloud on my client’s title and is causing damage. Ferguson has through the end of this month to execute and property record a lien release. Attached is one that will work. I’ve been instructed to file suit in the first week of January to declare Ferguson’s lien to be improper and invalid if the release is not filed by then.
ArkansasConcerned, we just had a general contractor do a horrible job and he obtained the certificate of occupancy July the 3rd. 2021. Upon moving in we had water enter our home from the backyard damages estimated 4,500 to correct and unknow what the correction will be to excavate and correct lay of the backyard. We discovered plumber failed to exit the vent through the roof, it was left in the attic. (We have corrected this ourselves). He failed to ensure proper framing was done as we discovered upon moving in that a complete dormer was omitted. We knew a window below the dormer was but we didnt make a big deal due to it being already framed and would have caused a slow down on our build ( had we noticed the missing dormer at that time, we would have felt very differently about this error.) He also had to tear out 30 % of the driveway because he failed to confirm location of water lines from home. He claimed that he was covering the error when they redid the section. Lots more its embarrassing that we let him roll on but we didn't get concerned until the build was 80% done and we had our old home under contract. He is askinf US for an additional $28,000! When I add his invoices up the total shows we should have a balance of approximately $21,000.00 left in our build account!
We have an attorney but havent had a one on one with him yet. Does this Builder have a right to file a lien on our home?
KentuckyWe have a customer that wants to pick up material at our shop for a job in Kentucky. Would we still be entitled to lien rights? We do have a signed contract with the customer.
KentuckyAn unlicensed contractor in TN has placed an intent to file a lien on my property for unfinished work. We had an agreement for payment when all work was completed and the contractor asked for $3000 and refused to come back. If this lien is filed, what is my recourse?
TennesseeAn unlicensed contractor in TN has placed an intent to file a lien on my property for unfinished work. We had an agreement for payment when all work was completed and the contractor asked for $300 and refused to come back. If this lien is filed, what is my recourse?
TennesseeFor example, what about the labor for the demolition and replacement of a subfloor in a mobile home? I was supposed to receive free rent for a year at the home in exchange for the work. Did the work but then have been ignored by the owner (who is from another state) No written contract but text conversations, 130 project photos and an hourly work journal are evidence. $2800 labor value (70 hours x $40/hr rate)
FloridaIn Kansas last worked on subject party mid June approx 6 months ago
Client sent partial payment with message in Memo stating if I cash them I accept as final pay …by mail in the form of Cashiers checks one for labor and one for materials furnished. Should I file lien or pursue in small claims?
Kansasi am a subcontractor and i entered into a verbal agreement with homeowner to paint house i was told no rush so a few days later i began work the same as always bring in equipment setup prep entire house then start finishing got about 2 weeks in and was told i need to clean job and get everything off site for renters ro come in and could start back the following week this was 4 weeks ago i work bymyself right now and it was understood and welcomed but there was another partner that owns the home as well and was fussing about the amount of work done and really what happened from what i was just told is that one owner threw a fit and wanted me gone so they lied to me just to get me gone thinking if they stall long enough ill go away i dont have alot of money and struggling right now to keep my family afloat and a roof over our head i get work mostly threw word of mouth right now because its only me now and i dont take work til i finish what i am doing so i end up turning down what comes my way unless they want to schedule for a later date and that hasnt happened now i have been out of work since they told meto leave thinking i would start back and they are telling me next week everyweek now its not til after new years when there is no reason not to get back on it this was going to save me from losing my home and to give my kids a c hristmas now im broke and our christmas may be in a shelter whatcan i do is a mechanics lien a good choce to have them pay
FloridaWe have filed a lien through Levelset, but my attorney has some concerns that certain specifics of the lien may render it invalid. I will list the concerns raised below:
- It seems to be the wrong form. The title says it’s a lien on a homestead. If that’s the case, the lien is no good since a lien on a homestead MUST be in writing. I looked the property up on the Llano County appraisal district and I don’t believe it is a homestead..... (Property is in fact NOT a homestead)
- The title of the form refers to you as the “original contractor”. I don’t believe you were the original contractor. (this was a remodel)
- The title of recorded document says “THIS IS NOT A LIEN”.
- The amount of your claim is listed as $45,132.80, which is the correct amount. However, the Exhibit attached is an invoice for only $22,700. I am concerned that makes the affidavit invalid. (Levelset was given two invoices to attach but only one was included in filing)
- The description of the services were “construction of improvements”. That would be consistent with the title referring to you as the “original contractor” but I don’t believe it’s accurate. You didn’t construct the improvements, but only modified them.
- Who is Claire Canulette? How is she an authorized and disclosed agent? Disclosed to whom?
- Again, the expression “installation of improvements” suggests to me that it is referring to original construction.
- The notary was in Louisiana. Is that valid for a Texas Lien Affidavit?
TexasCan the owner subdivide the property if it has a mechanical lein on it
MontanaFiled a notice and lien for a project. It turns out that the contractor who hired us was not the original contractor. Notice and lien was never sent to the original contractor, only the property owner and the contractor who hired us(sub-contractor, we never did anything for original contractor).
Texas