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mechanics lean legal?

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YOI180

Guest
hired a contractor to do some work at my home.Exactly 20 days after some material he ordered and used arrived, I recieved a registard letter(apparently the contractor did not pay his bill).The letter "accidentaly" got opened and after reading it I declined to sign for it(postmans a buddy).The company he used was asking me for 4 times the amount the contractor says he paid for the material.But because I did'nt "accept the registard letter" can they file a lean on my property? and can they ask for so much more material than was really used? Should I contact the company and question them about this? I have spoke to the contractor who says hell take care of it but its now going on 2 months,how long does it take to pay a bill....
 


T

Tracey

Guest
The supplier is asserting a materialman's lien, in the amount it should have been paid for the materials it supplied for your remodel/repairs.

Have you paid the contractor yet? You should not pay a contractor in full until the contractor gives you signed releases from all its suppliers. This way, a supplier can't assert a lien against your house because the contractor hasn't paid it yet. Without the release, you may end up having to pay for the materials twice, and suing contractor for reimbursement. Since the supplier has give you notice of its lien, don't take the contractor's word that he paid them. If contractor can't pay the supplier, s/he won't be able to reimburse you either....

The materialman's lien is limited to the value of the materials actually used in your home. Refusing delivery of the notice letter is no defense to a lien. You should go to your library and read the CA statutes on liens (should be an entire section). Check whether the supplier has to give you notice within a certain time, how much they can charge, how long you have to dispute the amount of the lien, how to dispute the amount, how long they have to perfect the lien, etc.

In the meantime, withhold the entire amount of the asserted lien from your final payment until you receive the release. (A copy of the bill and the contractor's cancelled payment check is insufficient; you need an actual release.) It sounds like your contractor is having financial difficulties.


Good luck,
Tracey



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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.
 

I AM ALWAYS LIABLE

Senior Member
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by YOI180:
hired a contractor to do some work at my home.Exactly 20 days after some material he ordered and used arrived, I recieved a registard letter(apparently the contractor did not pay his bill).The letter "accidentaly" got opened and after reading it I declined to sign for it(postmans a buddy).The company he used was asking me for 4 times the amount the contractor says he paid for the material.But because I did'nt "accept the registard letter" can they file a lean on my property? and can they ask for so much more material than was really used? Should I contact the company and question them about this? I have spoke to the contractor who says hell take care of it but its now going on 2 months,how long does it take to pay a bill....<HR></BLOCKQUOTE>

My response:

Claims by mechanics, materialmen, contractors and others entitled to a lien upon property for creating or contributing to a "work of improvement." [See Ca Civil § 3152]

Mechanic's liens: The holder of a mechanic's lien may also obtain a writ of attachment. [See Ca Civil § 3152; Bettingen Lumber Co. v. Kerrin (1929) 99 Cal.App. 686, 689, 279 P 163, 164; San Diego Wholesale Credit Men's Ass'n v. Super.Ct. (1973) 35 Cal.App.3d 458, 462, 110 Cal.Rptr. 657, 659] An action to enforce a security interest in real property (e.g., a mechanic's lien) must be brought in the "judicial district or similar legal entity" where the property is located. [15 USCA § 1692i(a)(1); and see Shapiro & Meinhold v. Zartman (Col. Sup.Ct. 1992) 823 P.2d 120.

Preliminary Notice:

Notice must be sent within 20 days of first labor and material. If notice is not done, lien rights are lost.

Mechanics Lien:

Lien must be recorded within 90 days after last labor and material, or within 30 days after filing Notice of Completion. This is a direct lien state. (Owner can be held to pay even if payment has been made to general contractor. Suit to enforce must be filed within 90 days of recording lien.

In most situations promptly paying someone after they perform a contract is not only logical but appeals to our sense of honor and justice. In California, it may, however, be disastrous. Under the California's Mechanic's Lien Law, persons who help to improve real property and are not paid have a right to enforce their claim against the property. This "claim" is known as a mechanic's lien. Basically, when someone files a mechanic's lien, they are making a claim on the property as security against the payment of a just debt.
In other words, the mechanic lien law allows contractors, subcontractors, laborers, materialmen, or certain others who have provided goods or services to place a lien on your home or other structure they build, improve or provide materials for if they are not paid for any portion of the goods and services they furnish. For example, if you pay your roofing contractor and he fails to pay his subcontractors or material suppliers, then those people can look to the improved property to payment, even if the owner has paid the contractor in full.
There are some important time requirements that you should be aware of regarding mechanic lien laws. A claimant such as a supplier is entitled to enforce a lien only if he gives the owner or reputed owner a preliminary twenty-days notice. All claimants other than the original contractor [the person the owner contracted with], or a laborer performing actual labor for wages, must give this notice. Therefore, people who you may not even know, such as a subcontractor or a material supplier, must notify the owner or reputed owner that they are providing supplies or services to your property which may later create a lien. This Preliminary Notice must be given no later than twenty days after the claimant has first furnished labor, services, equipment or materials to the job site. In an example hypothetical, however, a job may be completed in five days and a material supplier may choose not to send out the preliminary notice for an additional fifteen days. If you pay the roofer during this time gap and he does not pay for the materials, the result may be a lien against the property which will require the owner to pay for the materials again even though the price of the tile was included in the amount paid to the roofing contractor. This hypothetical illustrated the potential problem that can result from an early payment to the roofing contractor. The owner may take certain steps to protect himself from a mechanic's lien. The owner may request the roofing contractor to furnish a payment and performance bond. (This is a different bond than the one currently required by the Contractor's License Law.) The additional cost is usually minimal and is a guarantee by the bonding company that the project will be completed and the bills paid. However, on small projects it is often impractical to obtain a payment and performance bond. Small contractors often have not established a relationship with an insurance or bonding company which allows them to obtain a payment and performance bond.
An owner may also require that the original contractor provide the owner with an unconditional lien release signed by each and every person who has performed any work or labor, as well as every person who has delivered any materials to the job. Conditional lien releases along with joint checks should be considered. An owner should get releases from each person who gave the owner a preliminary notice. In our hypothetical, the owner should not pay the roofer until the lien time period has expired or releases are obtained from those who could file a lien.
The owner of the property or his agent can record a notice of completion within ten days following the actual completion of the work of improvement. The effect of the notice of completion is to shorten the time period within which the contractors or subcontractors may file their mechanic liens. Usually claimants must record their lien within ninety days of actual completion of the work. If a notice of completion has been validly recorded, a lien must be recorded within sixty days of the recordation of the notice of completion by the original contractor and within thirty days by all other claimants, such as subcontractors and materialmen. The mechanic's lien will attach to the property as an encumbrance like a mortgage or deed of trust. The claimant must file suit within ninety days after recordation of his mechanic's lien or the lien right is lost. The complaint to foreclose the lien must be filed in the county where the real property is located.

Good luck.

IAAL



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