Home Improvement (Mechanic’s Lien) Litigation
Westchester, Rockland, and Dutchess County consumers hire “home improvement contractors” daily to perform all sorts of jobs. But did you know that there is a vast network of other individuals and entities who are, by New York Lien Law, granted the right to file a “lien” against real property?
Specifically, the New York State Lien Law provides,
A contractor, subcontractor, laborer, materialman, landscape gardener, nurseryman or person or corporation selling fruit or ornamental trees, roses, shrubbery, vines and small fruits, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or subcontractor, and any trust fund to which benefits and wage supplements are due or payable for the benefit of such laborers. . .
The common scenario involves a homeowner who is dissatisfied with the work being performed by the contractor, and the contractor or laborer senses that he or she will not be paid for the work or item being delivered to the property under the contract. Rather than commence a law suit for breach of contract, the contractor will often file a mechanic’s lien to slow or stop financing on the construction project. Compared to a lawsuit, mechanic’s liens are relatively easy to file, but there are many traps for the unwary homeowner and contractor alike.
At Klose & Associates, our Westchester County consumer attorneys have experience dealing with these mechanic’s lien issues from both sides of the fence, representing contractors, property owners and consumers, all trying to avoid litigating the dispute, either by filing a mechanic’s lien or by getting the lien discharged.
The statutory term of art, the “mechanic’s lien,” is a mechanism by which contractors and other entities “shall have a lien for the principal and interest, of the value, or the agreed price, of such labor, including benefits and wage supplements due or payable for the benefit of any laborer, or materials upon the real property improved or to be improved.” [See Lien Law generally.]
If filing a mechanic’s lien does not bring the owner of the property to the negotiating table, then the person looking to recover the value of the contract must commence an action to foreclose the lien – basically a lawsuit. If the lien is big enough, the court could force the sale of the property to satisfy the lien from the proceeds of the sale.
In New York, filing a mechanic’s liens on residential and commercial projects involves complex procedural steps that are difficult to navigate, with various traps for the greedy or unwary contractor. In fact, under Lien Law, Section 39-a, for any lien proven to be “willfully exaggerated” a court could award damages which include,
The amount of any premium for a bond given to obtain the discharge of the lien or the interest on any money deposited for the purpose of discharging the lien, reasonable attorney's fees for services in securing the discharge of the lien, and an amount equal to the difference by which the amount claimed to be due or to become due as stated in the notice of lien exceeded the amount actually due or to become due thereon.
Mechanic’s liens are complicated matters that require step-by-step assistance from New York consumer attorneys experienced navigating the murky waters of a construction claim.
For example, if the claim involves a construction project on a residential home, New York permits a contractor to file a mechanic’s lien only within four (4) months of the last day the work ceased. In Rockland, Westchester, New York and Nassau Counties, the contractor has no right to recovery of the claimed contract price if he or she is not a duly licensed “home improvement contractor.”
Even after filing the lien on a home, the contractor must commence suit on that lien within one year of filing, or lose the right to the mechanic’s lien. That is not to say that the contractor couldn’t prosecute a breach of contract action seeking recovery for the contract price. Whether you are a contractor, or a homeowner, when serious amounts of money are involved, you should contact a consumer attorney experienced with these types of issues. Better practice, however, would be to hire an attorney to help you negotiate and draft the construction contract before the dispute ends in a mechanic’s lien.
The bottom line, rather than worrying about the intricacies of mechanic’s lien law, we suggest that you allow the New York consumer attorneys at Klose & Associates to guide you through the process of enforcing or avoiding the lien. We work hard to avoid litigation so that we can resolve the dispute in the most economically efficient manner. Should the payment dispute not be resolved with the advice of a seasoned attorney, then we will enforce or defend the lien in the New York Supreme Court.
Klose & Associates can aid you with all matters involved in mechanic’s liens, including preparing and filing a Mechanic’s Lien, foreclosure and enforcement actions. We have successfully removed and defended various claims for a mechanic’s lien over the years, whether it is through investigation, negotiation or prosecution of counter-claims to remove defective liens or for damages and attorney’s fees for “willfully exaggerated liens. “
Contact us today. If your construction contract has fallen apart, Klose & Associates can help you to resolve the construction dispute through negotiation, or litigation. Put our business litigation experience to work for you.