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Ask the Lawyer – About Mechanic’s Liens

Q. I am a residential home builder who recently finished a custom home construction project. The project has been complete for two months now, but the home owner has not made the final payment even though I have made several written requests for payment. Can I file a mechanic’s lien against the property, and what do I need to do to make sure it is filed correctly?

A. Mechanic’s liens are created by statute and are available in all 50 states and the District of Columbia. It is a type of security for payment of a debt that has not been paid. A mechanic’s lien provides security in the form of a lien against the real estate where the work has been performed or the materials are used. It is recorded with the real property records in the county where the job site is located and serves as notice to prospective purchasers, lenders and other creditors that there is a lien on the property for money owed.

Generally, mechanic’s liens are available when a person contributes services or materials to a construction project but has not been paid. Such coverage may extend to contractors, subcontractors, suppliers, architects and laborers. The requirements and deadlines for mechanics liens vary from state to state, but there are some common characteristics:

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• First, each state usually requires that written notice be given to the owner of the real estate, or any mortgage lender, before filing can occur. There are usually time limits imposed for these notices.
• Next, after notices have been properly served, the mechanic’s lien may be filed with the clerk of the court where deeds are filed and land records kept. The courts will usually provide the forms, and a mechanic’s lien must be filed within a certain time after completion of the work or the furnishing of labor and/or materials.
• Third, after the mechanic’s lien is filed, a lawsuit must be filed in order to perfect the mechanic’s lien. Some states refer to this procedure as foreclosure; other states refer to this as a suit to enforce a mechanic’s lien.

Because the specific provisions for mechanic’s liens vary greatly by state, you should become familiar with the law in your particular state before beginning a construction project. Specifically, you will need to know time limit, notice and filing requirements.

If you are doing work in another state, do not assume that the mechanic’s lien law is the same or similar to your own state’s. Take the time to learn that state’s mechanic’s lien law before you start the job.

You will need to examine the specific mechanic’s lien statute for your state and strictly follow the procedures in the statutes. Most states have their statutes available online. For more information and links to states, click here.

If you have any questions on mechanic’s liens in your particular state, you should consult with your local attorney.

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If you have questions for Ask the Lawyer, click here.

There is no guarantee that your question will be answered in this format, so if you have a particular legal concern that requires immediate attention, contact the NAHB Legal Research Service at 800-368-5242 x8491.

This information is provided as a service of the NAHB Legal Action Committee and NAHB Building Products Issues Committee. The information is intended to familiarize you with the law in this area. It is not intended to be an exhaustive presentation of legal information on this particular subject, and in no way constitutes an opinion of law. Your own attorney must review this information to determine how it may apply to your particular situation.
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