Every homeowner who’s considering hiring a contractor to do some work in or around their house should make sure they’re familiar with their state’s mechanics lien laws before making a decision. Never heard of a mechanics lien? You’re not alone. Let’s uncover what it is and why you should protect yourself from it.
Think Twice About Not Paying
If you wind up having a beef with the contractor you employ for builds or repairs – poor workmanship, perhaps, or maybe they walked off the job before it was completed or failed to finish the work in a timely manner as promised – and you decide not to pay, that contractor can respond by attaching your house to a legal claim for unpaid work until some kind of settlement is reached.
That could turn into a waiting game if you are not considering selling your home. But, if you intend to put your home on the market in the near future, that lien could stop you in your tracks.
What EXACTLY is a Mechanics Lien?
Sometimes known as a materialmans lien, every state has a a mechanics lien law granting tradespeople a way to protect themselves from those who fail to pay them for services and time rendered.
Here’s how Rusty Adams, a research attorney for the Texas Real Estate Research Center at Texas A&M University, described it in a recent edition of Terra Grande, the Center’s monthly magazine:
“It is an equitable interest that gives its holder the right to have satisfaction out of the property to secure payment on a debt. It is not title to the property, and a lien holder does not have ownership rights. Rather, it is an equitable interest that gives the lien holder the right to have satisfaction out of the property to secure the payment of a debt.”
In other words, it is an encumbrance the property owner must deal with, one way or another. Otherwise, it could result in a foreclosure and forced sale of your house.
How Mechanics Liens Work
None of what follows should be considered legal advice. Rather, it is intended only as a brief, mile-high overview.
A mechanics lien can be filed by anyone with a claim against the property. This concept isn’t new; for example, Uncle Sam can place a lien if you fail to pay your taxes, as can your state. Your homeowners association can do the same if you don’t pay your dues or a special assessment.
In the case of work done to your house, the contractor can file if you fail to pay, even if you feel you’re justified in withholding. The company from which he or she gets their supplies – roof shingles, for instance – can also file against your house if the contractor doesn’t pay them. And if the contractor uses subcontractors, they, too, can go against the house if the contractor doesn’t pay them.
The “very broad” law in Maryland “covers almost everything,” attorney Harvey Jacobs says. For example, if the developer doesn’t pay the paving company hired to cover your cul-de-sac, the company can file a mechanics lien against every house that touches that street. Ditto for the outfit hired to landscape, sod and plant shrubs.
How to Protect Against Mechanics Liens
Fortunately, lien laws afford owners some protections. In some places, the amount owed must be of at least a certain amount. They also must be filed within a certain number of days from when the work was completed, and may require the property owner to be notified within a specified time that a lien has been filed.
The rules, which also apply to subs and suppliers, can be somewhat tricky for an owner to decipher. But the absolute best way to protect yourself is to require the contractor to provide lien releases before you pay anything more than your down payment. In other words, no draws or final payment until he or she certifies that everyone in the chain has been paid.
Often, says Texas attorney Adams, a notice of intent to file or the actual filing is enough to resolve the debt attached to the property without going through the process itself.
Once payment has been received, a contractor has a duty to remove the notice or the lien itself from public records. Failure to do so allows the property owner to file a lawsuit against the contractor to compel the lien’s removal. But to avoid that, Adams suggests making sure the release has been recorded.
Some Important Distinctions
A lien release is not the same as a lien waiver. Nor is it the same as a lis pendens. While a release removes an existing lien, a waiver is an agreement that prohibits a contractor or supplier from placing a lien on the property. But some states don’t permit waivers at all.
A lis pendens, which is Latin for “suit pending,” is a written notice that a lawsuit has been filed in the county land records office involving either the title to the property or a claimed ownership interest in it. The notice alerts a potential purchaser or lender that the property’s title is in question, making it less attractive, if only because the buyer or lender is subject to the suit’s ultimate outcome.
Beyond this, it is crucial for a homeowner to ensure the contractor, subcontractor or supplier has followed the rules of the road. In Texas, said Adams, the claimant must give the appropriate preliminary notices, make the proper filing and give filing notice to the property owner.
In Maryland, the unpaid amount must be at least 15% of the property’s assessed value. So if the house is assessed at $100,000, the lien must be for $15,000 or more. “Small jobs don’t count,” Jacobs said. Contractors must also file a lien within 180 days of performing the work in Maryland, but subs must file within 120 days.
In neighboring D.C., though, there is no minimum to file, and the contractor, supplier or sub has only 90 days to file.
(Note: In the case of mechanics liens, property value is an evidentiary question. Courts often use assessed value in deciding whether a lien can be brought.)
In Texas, though, contractors aren’t required to provide a preliminary notice, but they are required to present a list of all subs and suppliers before starting work. But subs and suppliers who have a contract with the original contractor must send notices to both the contractor and the homeowner by the 15th day of the second month.
As you can see, once you get into the tall grass with mechanics liens, it becomes fairly complicated. It’s at this point that it may be time to consult legal counsel.