Contractor Does Lousy Work, Files Mechanics' Lien for Nonpayment: Now What?

You say the contractor doesn't deserve payment, but now the contractor has put a lien on your house: What's next?

Your home remodeling project started well, but now you and your contractor are no longer on the same page. Perhaps the doors to the new cabinets won’t close and stay closed, or the old paint wasn’t completely scraped off before the new paint went on. You refuse to make the last payment due until the contractor gets it right; the contractor, in turn, slaps a mechanics’ lien on your home. Now what?

What Is a Mechanics' (Construction) Lien?

When a contractor files a mechanics’ (construction) lien on your home, the lien makes your home into what’s called “security” for an outstanding debt, which the contractor claims is due and unpaid for services or materials. The practical result is that, after a period of time, the contractor can attempt to collect that debt by forcing a sale of your home.

Mechanics’ liens are creatures of statute. Although the idea behind them is straightforward – a contractor or a builder needs protection against the wrongful refusal to pay for work done – how, exactly, that is legally achieved varies state by state. Each state has its own mechanics’ lien system on the law books. The details can vary significantly: For example, in California, mechanics’ liens expire within 90 days if not perfected (sued on), whereas in most other states, the laws provide longer expiration dates. Check with a lawyer familiar with how mechanics' liens work in your state.

Did Your Contractor File a Valid Mechanics' Lien?

To establish a valid lien, the contractor typically must comply with a number of statutory requirements:

  • the builder must give the homeowner a preliminary lien notice within a specified number of days of beginning work or delivering materials
  • the mechanics’ lien must provide a minimum amount of detail about the debt (the amount, the scope of the services for which payment is due, the homeowner's name and address, and so forth)
  • the lien must be filed with the local county court or registrar of deeds within a certain number of days of the completion of work, when the homeowner accepted the work, or when the homeowner began to use it, and
  • the contractor must begin a lawsuit to collect the debt (perfect the lien) within a certain number of days of filing the lien.

If any of the above conditions are not met, the lien is invalid. You can easily check this for yourself; but if you conclude that you’ll need to go to court, you may wish to have an attorney review your work.

In most states, the law applicable to mechanics’ liens on residential property afford more protection against involuntary sale than liens filed against commercial property. Even so, if the lien is valid, if the contractor’s lawsuit is successful and no alternative to foreclosure is available, the contractor may force a sale of your home to collect the debt.

How Do You Get Rid of a Mechanics’ Lien?

A mechanics’ lien, once recorded, creates a title problem that must be dealt with before you can sell or refinance your home (as described in Nolo’s article, “Selling a House? How to Clear Your Home Title of a Mechanics' Lien.”)

If, after investigation, you are persuaded that the lien is invalid, you will have to go to the county courthouse or registrar of deeds to remove the lien.

If the lien appears to be valid, try resolving the underlying conflict with the contractor. Once the lien is filed, both you and the contractor have an even stronger financial incentive to reach agreement before you get to the courthouse. The contractor has already borne some expense in filing the lien, and will incur much more if he or she needs to file a lawsuit to collect the debt.

For you, the resulting lawsuit and the additional title issues make it worthwhile to resolve the issue quickly. Consider mediation or, if the amounts involved are substantial, binding arbitration.

Prior to negotiations with the contractor or before mediation, you will want to marshal all of the documentation you have in your defense (invoices, letters, photographs, logs of telephone calls, witnesses to the shoddiness or absence of the work or materials, and anything else that supports your position).

Once the underlying issue is resolved, the contractor can voluntarily file a withdrawal of the lien.

If the contractor refuses to settle, or to engage in mediation or arbitration, you can either contest the filing of the lien immediately after it happens or you can wait until the contractor brings a suit for unpaid materials or uncompensated time. In either case, you’ll want your documentation at hand, even if your claim is a statutory one (for instance, the contractor didn't provide you with a preliminary notice of lien) and be prepared and dissolve the lien.

If you intend to sell or refinance your house in the near future, time is an issue: you may want to see the lien dissolved quickly, even if you could negotiate a better financial solution with more time.

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