How Do You Remove A Frivolous Mechanics Lien?

How Do You Remove A Frivolous Mechanics Lien?This blog traditionally focuses on how to file mechanics lien claims, largely analyzing the mechanics lien process from the lien claimant’s perspective. However, we’re going to take a brief break to turn the tables and look at the opposite perspective.  Mostly because two great resources has been published in the past few weeks which guide property owners (or prime contractors, or others) in understanding how to identify a frivolous lien, and what to do about it.

What is a Frivolous Mechanics Lien?

Let’s address what constitutes a frivolous mechanics lien before getting into the resources available to help you have the lien removed. While every state has its own definition, a frivolous mechanics lien is typically defined as a lien filed without any reasonable cause, or one which has no reasonable argument for its validity.

An example of a clear-cut frivolous lien in any jurisdiction is one that is filed late.  If your state requires all mechanics lien be recorded within 90 days of last furnishing labor or materials to the project, and you file your lien 95 days after this date, you’re lien is invalid per se, and there’s no reasonable basis for its filing.

This can get a bit complex if there is some debate as to what exactly constitutes the last furnishing date, and that’s because most states do not consider a mechanics lien frivolous if there is something in dispute.  If the last furnishing date is in dispute, if the workmanship is in dispute, if the agency relationship between the property owner and a tenant is in dispute, etc. etc.  Courts are reluctant to remove mechanics liens in the presence of such arguments, because the laws allow the claimant its day in court to prove its case, and prove that its lien was reasonable.

Resource To Remove Mechanics Lien in Louisiana

The first resource I’ll write about was published by our good friend Seth Smiley (@sethsmiley) at the Construction Law Monitor. Seth’s “Construction Lien Removal Suit in Louisiana” discusses the statute within the state’s Private Works Act which allows interested parties to file a mandamus action to demand the removal of a mechanics lien.

Seth even links to a Petition for Mandamus example that his law firm filed to have a mechanics lien removed in the state, which is hosted on JDSupra.  This is a very good resource not only for property owners and interested parties, but for attorneys confronted with a potential frivolous lien claim.

In addition to this Construction Law Monitor blog post, I also published a Legal Guide on this topic in the past on Avvo.com, which may be useful to someone interested in removing a mechanics lien in Louisiana.  The Legal Guide is titled:  Disputing a Construction / Mechanics Lien in Louisiana.

Resource to Remove Mechanics Lien in California

Last month, we published an article about the mechanics lien resources made available by the Sacramento Public Law Library in “Five Star Resource for Filing A California Mechanics Lien from Sacramento Public Law Library.”  The librarian over there tweeted me about the post, highlighting that they just published a new owners guide on removing liens.  At first, I didn’t think to publish this on the blog because we so often focus on the mechanics lien claimant. However, it’s such a good resource, and it’s in line with the other lien removal resources recently published, that I changed my mind.

Plus, even though this resource is great for someone who wants to remove a mechanics lien, it’s also good information for the mechanics lien claimant.  Especially so in California, because unlike other states, California liens expire very quickly (90 days), and lien claimants must file a cancellation to remove the lien after they expire.  If they don’t, they may be confronted with one of these lien removal actions.

In any event, the “Lien Removal” resources published by the SAC Law Library not only give readers an understanding of the applicable rules, but they also have downloadable templates available.  It’s extremely easy for someone to read this, put together their documentation, and file for an uncontested lien release.  Contested lien releases may turn into a more complex situation that requires a lawyer (see: Wolfe Law Group), but a lot of these expired liens can be removed by petition without much opposition.  The resource on SAC’s website is available here: Petitioning For Release of Mechanics’ Lien.

 

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  • http://constructionlawva.com Christopher G. Hill

    Thanks for the post Scott. This is always a difficult process and decision. File to get rid of the lien or wait to see if its enforced?

    • http://www.zlien.com Scott Wolfe Jr

      Yes, that’s a take on the issue not really addressed in this article. Even when you’re 100% right about getting a lien removed, it may not be worth it.

      It’s an interesting issue though when liens expire. There are a lot of jurisdictions when this causes a problem. If the lien expires but is not formerly removed, it may still cause title problems and hold up re-fis, sales, etc. As such, people sometimes need to file a removal action just to get a formal removal of the expired lien….

  • Tawny

    If the lien has not been processed and is just an intent to lien, can the Contractor still move forward with frivolous charges?

    • http://www.zlien.com/ Scott Wolfe Jr

      Hi Tawny – Thank you for your comment and question here. Unfortunately, I don’t think I understand what you are saying. You ask if a contractor can move forward with “frivolous charges,” what do you mean? Criminal charges?

  • rtimmons1

    Hi a mechanic filed a lien against my leased vehicle in NY for storage charges while it was there for repairs what should I do? It still has not been repaired.

  • http://www.zlien.com/ Scott Wolfe Jr

    If a lien was filed against your property frivolously, I am happy to hear that it was removed. Nevertheless, the lien was not “filed by” zlien or a representative of zlien (i.e. Cassie). Our company is merely a technology product that is used by contractors, suppliers, and construction participants to file liens. We do not have any say in whether a lien is recorded or not. It is as if the subject contractor or supplier went to the courthouse and recorded the lien themselves.