How To Remove A Recorded Mechanics Lien Upon Your Home
UPDATED: August 9, 2013
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In every state, the licensed contractor and supplier of materials for home improvement work on your property, which includes land and building, is entitled to "pre-lien" the property to assure payment.The term “pre-lien” is a requirement that a licensed contractor or material supplier must follow to make sure that a lien is enforceable. It starts with a “preliminary notice” of work or materials supplied to the homeowner.
Problems sometimes arise when the owner of the property is unable to pay his contractor for the improvement work in a timely manner. And, sometimes the general contractor hired to do the work of improvement is unable to pay his own subcontractors on the job for services and/or materials provided. However, the lien claim is often invalid because the contractor, subcontractor, or materials supplier has failed to meet the required timelines for filing the claim. Each state has different timelines required for the contractor, subcontractor, or materials supplier.
Homeowner Should Check if the Lien is Invalid
The terms "mechanic's lien" and "contractor's lien" are used interchangeably throughout the building industry. Check if the required preliminary notice has been given to you within the required time of your state’s laws. The general contractor and his laborers are not required to file the preliminary notice. A subcontractor or a materials supplier has a certain amount of time, usually twenty (20) days after beginning work or delivering materials to serve a preliminary lien notice. If late, the claimant loses all lien rights for work performed or materials delivered. The claim against the property is not valid if this time period has not been followed.
Check if the lien claimant, that is, the licensed contractor or the material supplier who is claiming a lien upon your property, has recorded the mechanic’s lien within the required time period. If the claimant has failed to record the mechanic’s lien, the lien is invalid. Usually the lien claimant must record a mechanic’s lien within a certain time frame of the first of the following events: completion of the work, when the property owner began using the property having the improvement, or when the property owner accepted the work of improvement.
Check with the clerk of the county court where the property is located, to see if the subcontractor or the materials supplier filed a lawsuit to foreclose upon the mechanic’s lien. A lien foreclosure action is a lawsuit filed by the subcontractor or the materials supplier to foreclose upon the mechanic’s lien. The lawsuit must be filed within a certain time period of the date the mechanic’s lien has been recorded. Many times the claimant simply fails to file a lawsuit within the required time period which invalidates the lien.
Effect of an Invalid Recorded Lien
A recorded lien upon a property owner’s home is a cloud upon its title until removed. An invalid lien creates problems for the refinance or sale of the home. If the contractor, subcontractor, or materials supplier fails to timely file for pre-lien or lien procedures, the homeowner usually files a petition to remove the lien.
How to Remove An Invalid Lien
If it appears a recorded lien is invalid due to improper “pre-lien” notice requirements, failure to timely record the lien, or failure to file suit to foreclose upon the lien, a demand letter to the person who recorded the lien should be sent via certified mail, return receipt requested, for its recorded release and removal by a specified date. If the person who recorded the invalid lien fails to remove it and the time period to file suit to foreclose has expired, the property owner files an action in the county where the property is located.
Most property owners retain an attorney to assist in this process. The services of a lawyer are worthwhile and prudent in this case since the statutory language for placement of liens by a contractor or materials supplier is very technical and somewhat difficult to understand. In many instances the person recording the mechanic’s lien fails to file a lawsuit to perfect the lien. In such a situation, an experienced attorney is needed to file a lawsuit to eliminate the recorded lien of the contractor.