If you provided labor, materials, equipment, professional services or just about anything else to a construction project, you may be entitled to file a mechanics lien against the property to secure payment for your services.
On private construction projects, the mechanics lien attaches to the land itself, and restricts the owner from selling, refinancing or transferring the property without accommodating the lien. On public construction projects (projects on state or federal lands), the lien typically attaches to the project’s bond.
So, how do you actually file a mechanics lien? The devil is always in the details, and if you’re a reader of this blog you likely know that mechanics lien laws in the United States require an extraordinary amount of detail. To make matters more complex, the requirements for filing a lien differ depending on the project’s location. Below, we’ll provide you with an overview of how to file a mechanics lien, and we’ll direct you to resources that explain the different requirements that apply in each state.
Learn Your State’s Lien Requirements
This blog post is not going to exhaust the legal requirements associated with mechanics liens (i.e. when they must be filed, when notices are required, etc.). However, the web is full of resources on mechanics liens that answer these questions.
In fact, we publish one of these resources. zlien has a collection of mechanics lien frequently asked questions and laws for each state. Visit that page, select your state, and you’ll see a chart explaining the lien and notice requirements for private projects. Browse the menus on the left side of each state’s page to find information about public projects, lien waiver rules, prompt payment laws, retainage, and more.
Tip: Consult information related to the state in which the property was located.
Step 1: Do You Have the Right to File a Lien?
The first step to filing a mechanics lien is to determine whether you have the right to file the lien. This typically involves asking yourself these three questions:
1. Does state law allow you to file a lien? Each state allows some types of construction participants to file liens, and prohibits others from doing the same. For example, many states prohibit suppliers to suppliers from filing mechanics liens. Typically, prime contractors, subcontractors, and material suppliers are given lien rights.
2. Was preliminary notice required, and if so, did you give notice? If you were required to send preliminary notice, and you didn’t, you may have forfeited your lien rights.
3. Are you within your lien deadline? Every state sets forth a deadline to file a lien. This deadline is usually tied to the completion of the project, or the last day you provide labor or materials.
Visit zlien Resources and select your state to see if you have the right to file a lien.
Step 2: Draft the Lien With Care
If you have the right to file a lien, the next step is to produce the lien document. Lien laws are quirky. You must be careful, and include every piece of information required by the statute.
One of the most frequent mistakes lien claimants make in preparing a lien is failing to properly identify the property. Most states require a legal property description, as opposed to a simple address. Many counties also have strict font, margin and paper size requirements. Failure to follow these standards may cost you additional filing fees, or result in having your lien rejected. It’s a good idea to consult the county recorder’s office ahead of time to learn any special filing requirements they may have.
Tip: to locate the proper recording office, search the following in Google: “[county name] + recorder’s office.” For example:
Dallas county recorder’s office
Dallas county clerk’s office
Most states’ lien statutes describe what you should include in the mechanics lien and how you should format it. (View a state’s lien statute by selecting the state in zlien’s lien resources and clicking “Lien Statute” in the left menu.)
You can also download free mechanics lien templates from zlien.
Step 3: File your Lien with the Recording Office
Always consult the recording office before filing your lien. Each office has unique requirements and procedures. It’s not uncommon for a lien to be rejected several times before the claimant gets it right, for any of the following reasons and more:
- The document is formatted improperly
- Payment for the filing fee is insufficient
- Minor typos
- Specific content is missing
It’s very important to file your mechanics lien with the correct recording office. (See step 2 above to locate the proper recording office.) Typically, each county has its own recording office, and you’ll need to record the lien in the same county where the property that you worked on is located.
Mailing your lien to the recording office:
Note that some recording offices require you to file and/or serve the lien in person. Usually, if you are unable to do this yourself (because you are out of state, for example), you can send the lien to a courier who will record the lien for you.
If you are mailing your lien, to a courier or to the recording office, be aware of mailing delays (due to weather, for example), that might cause you to miss your lien deadline. Also take note of warnings from counties that liens they receive in the mail can take days or weeks to process. (We reported a 6 week backlog in Los Angeles County in 2008!)
Step 4: Notify Parties
After you file the lien, make sure you notify (or serve) the appropriate parties. In most states, the lien claimant must send immediate notice to the property owner. Other states require that you also serve the prime contractor and construction lender (if there is a lender involved with the project).
Note also that some states require claimant’s to sign an affidavit of service, which swears that you did in fact give notice to the required parties.
Step 5: Enforce, Extend, or Release Your Lien
Don’t let your lien expire. Your mechanics lien is only enforceable for a finite period of time, which differs state-to-state. A handful of states allow lien claimant’s to extend this period of time, though sometimes this requires permission from the property owner.
If your deadline to enforce your lien is approaching, you’ll want to take measures to extend the deadline, or to file suit to enforce the lien, which usually requires help from an attorney. If you’ve been paid, you will likely need to release (or cancel) the lien. (Not all states require claimant’s to cancel the lien, but property owner’s will usually ask for this after the lien claimant has been paid). To cancel the lien, file a Lien Release (or Lien Cancellation) with the same office that recorded the lien.
- Consult lien law resources to learn your specific lien and notice requirements. Make sure that you are eligible to file a lien.
- Consult the county recorder’s office in the county where the property is located. Ask about special that dictate the procedure for filing a lien, or what must be included with/on the lien.
- Draft the lien according to state laws and county requirements.
- File the lien with the recorder’s office.
- Monitor your deadline to enforce the lien. If you’re paid, file a lien release with the recording office to cancel the lien. If your deadline is approaching and you haven’t been paid, either extend the lien (if this is allowed) or meet with an attorney to file an action to enforce the lien.