Protection and Enforcement of Lien Rights

{"version":"0.3.0","atoms":[],"cards":[],"markups":[["b"],["a",["href","https:\/\/acdoperations.zendesk.com\/hc\/en-us\/articles\/1500009278362-Important-Considerations-for-Sworn-Construction-Statements-and-Lien-Waiver-and-Release-Forms"]],["a",["href","https:\/\/www.youtube.com\/watch?v=wbKju8nsSxw"]],["strong"],["i"]],"sections":[[1,"p",[[0,[],0,"August 31, 2022"]]],[1,"p",[[0,[],0,"Below is an outline of the steps you should follow for\nfiling a lien. These steps are presented generally, however, as each state has\ntheir own framework for filing and enforcing lien rights. You should consult\nyour state\u2019s specific statute to understand the mechanics of how to do so. Typically,\nthe failure to satisfy the technical requirements of a state\u2019s lien statutes will\njeopardize the validity of your lien and may result in the loss of lien rights.\nIf at any point in the process you are unsure of how to proceed, you should\nretain an attorney to guide you through the process."]]],[1,"p",[[0,[],0,"From the outset, you should always be careful to avoid\ninadvertently waiving your lien rights. First, you should not make enter into\nany agreement, to the extent that such agreements are permitted by the law and\npublic policy of your state, that you will not lien or otherwise encumber the\nproperty; only agree that you will waive your lien rights to the extent that\nyou have been paid monies due and owing for work performed in accordance with\nthe Agreement. Additionally, do not sign overly broad releases and waivers of\nall liens and claims in conjunction with your applications for payment; be sure\nto carve out exceptions for monies that have not been paid (e.g., pending\nchange orders, outstanding retention, etc.). "]]],[1,"p",[[0,[0],1,"Step 1: Locate and identify your state\u2019s notice\nrequirements"]]],[1,"p",[[0,[],0,"The first step you should take is to look up your state\u2019s\nnotice requirements for filing a lien. State law varies regarding whether you\nare obligated to provide notice and, if so, who you are required to notify and\nthe time constraints of when the notification is required. It is important that\nyou identify and follow your state\u2019s requirements. The failure to do so can\nresult in the loss of your lien rights. "]]],[1,"p",[[0,[0],1,"Step 2: Locate and confirm your state\u2019s deadlines"]]],[1,"p",[[0,[],0,"Each state\u2019s statutory scheme contains specific deadlines\nwhich must be followed in order to maintain your lien rights. For example, in\nTexas, you must file a lien affidavit not later than the 15th day of the fourth\nmonth after the month in which your work was completed, terminated, or\nabandoned. On the other hand, in Louisiana, your lien must be filed within 60\ndays after the date the work was completed. You should make sure to locate\nthese deadlines and confirm that you are in compliance with them."]]],[1,"p",[[0,[0],1,"Step 3: Research information related to the property "]]],[1,"p",[[0,[],0,"A mechanic\u2019s lien is an encumbrance on the real property\nwhere the work was performed. Because the lien attaches to real property,\ntypically, you will need to obtain the legal description of the property from\nthe deed and verify the legal owner of the property. Note that if the property\nis the subject of a lease, the legal owner may be the tenant who contracts for\nthe improvements and the lien may be on the tenancy interest only. This\ninformation can be obtained by performing a title search. At this point, it is\noften best to retain an attorney or title abstractor to perform the title\nsearch, as that individual will be able to identify other judgments or liens on\nthe property which could take priority over your lien. "]]],[1,"p",[[0,[0],1,"Step 4: Prepare the lien "]]],[1,"p",[[0,[],0,"Once you have the property information, either you or your\nattorney will prepare a lien to be filed. The required contents of the lien\nvary from state to state so you should confirm the precise information required\nby your state. Typically, however, the lien will need to state the following:"]]],[1,"p",[[0,[],0,"\u00b7 \nAmount of the claim"]]],[1,"p",[[0,[],0,"\u00b7 \nName and address of the owner"]]],[1,"p",[[0,[],0,"\u00b7 \nA general statement of the work you performed\nand the materials you furnished"]]],[1,"p",[[0,[],0,"\u00b7 \nThe identity of the party who hired you"]]],[1,"p",[[0,[],0,"\u00b7 \nThe legal description of the property"]]],[1,"p",[[0,[],0,"You can usually find forms prepared by the state that can\neasily be filled out with the required information. "]]],[1,"p",[[0,[0],1,"Step 5: File the lien"]]],[1,"p",[[0,[],0,"You will need to identify the proper county to file the lien\nand the office in that county where the lien should be filed. Typically, the\nlien must be filed in the county\u2019s property recorder\u2019s office or with the clerk\nof the court in the county in which the property is located. However, unique\nsituations can arise in the case of property that sits on the line between two\ncounties. Some states also require that the lien be filed by an attorney.\nFinally, you should be aware that some states require you to file additional\ndocuments like affidavits and material papers bearing on the lien with the lien\nand\/or take additional steps to perfect the lien."]]],[1,"p",[[0,[0],1,"Step 6: Notify parties as required by your state"]]],[1,"p",[[0,[],0,"After filing the lien, most states require you to notify all\nparties affected by the lien (such as the property owner and any other lien\nholders). "]]],[1,"p",[[0,[],0,"The AIA Contract Documents program has developed a limited number of Sworn Construction Statements, and Lien Waiver and Release forms that might be used in specific states. In addition, they have also developed generic versions of those documents that might be used in the remaining states. To learn more, visit "],[0,[1],1,"Important Considerations for Sworn Construction Statements and Lien Waiver and Release Forms "],[0,[],0,"or watch a short video "],[0,[2],1,"AIA Contract Documents New Sworn Construction Statement and Lien Waiver and Release Forms."]]],[1,"p",[[0,[3,4],2,"AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors. "]]]]}