Face Facts: A Lien Valid On Its Face Will Not Quickly Be Dismissed
We have often noted the power of a mechanic’s lien. It can derail closings, encumber titles, and otherwise irritate landlords and coop boards. Considering its power, there are precious few ways to make it go away quickly.
A recent decision drives home the point, holding that even where the lien is based upon demonstrably false facts, or seeks unjustified sums, the courts will not discharge it summarily where the lien is valid on its face.
A general contractor in upstate New York did work on a homeowner’s house. When a disagreement arose, the homeowner terminated the contractor, which then filed a mechanic’s lien for $74,424. A lien on a single-family house must be filed within 4 months of the contractor’s last day of work. The notice of lien stated that the last day of work was July 31, 2016 – which was within 4 months of when the lien was filed—November 29, 2016. But the homeowner knew that he had terminated the contractor before that—more than 4 months before November 29, 2016—and had documents to prove it. He moved to dismiss the lien as untimely.
Court Denies the Motion
The court denied the motion to dismiss the lien. It reiterated the long-settled rule that “because the lien was timely on its face, the court was not permitted to summarily discharge it on the basis of untimeliness.” The appellate panel went on: “Although petitioners … submitted evidence … that respondent last worked on the property more than four-month prior to filing the notice of lien, respondent disputed that contention in his affidavit, as well as in the notice of lien itself. A trial is an appropriate way to resolve this conflict regarding the actual last date on which work was performed.”
Thus, the homeowner was forced to endure the entirety of the litigation, through to trial, to demonstrate that the lien was untimely and should have been dismissed.
A Powerful Weapon
A mechanic’s lien can be a powerful weapon that is easily misused. But there are some strategies for getting relief. The most common strategy is to “bond” it off. But not everyone has access to a bonding company or the cash to make it happen.
Another strategy is to deposit money into court, sort of like an escrow account, to have the lien lifted. But that too requires money that the homeowner may not have and does not wish to pay to the contractor.
More sophisticated strategies involve demanding that the lienor commence a foreclosure action, as a means to getting to trial more quickly, or even to have the lien stricken if the lienor does not quickly start the litigation.
Finally, the are other ways for the homeowner to go on the offensive, and gain the upper hand against the contractor in the action—including taking advantage of statutes that subject the principals of the contractor to personal liability for misconduct, or damages for willful exaggeration of the lien.
Anyone with a printer and a dream can file a mechanic’s lien. Fighting back takes an attorney with a deep understanding of all available strategies for getting it discharged.
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Further information on mechanic's liens can be found on our blog:
Filing Proof of Service - No Wiggle Room
Advice on Consent: Holding a Landlord Liable on a Lien Filed for Tenant Work
Owner's Payment to GC is Absolute Defense to Sub's Mechanic's Lien Claim
Liening for Pre-Construction Services? Yes and No.
Another Mechanic's Lien Bites the Dust
Better Early Than Never: Can You File a Mechanic's Lien too Soon?
What Can You Lien For? And What Not?
You Must Renew a Bonded Lien, Or Else
Willful Exaggeration of a Mechanic's Lien - Only Established at Trial
Filing a Mechanic's Lien. Again. And Again.