General Contractors are Enforcing Statutory Right to Inspect Subcontractor Payroll Records

Christopher Ng, esq.By Christopher Ng, Esq.
Yes, California’s Assembly Bill 1701 was a doozy. For those of you not yet familiar with the new law, to make a long story short, AB 1701 makes a direct contractor (California speak for “general contractor”) jointly liable for the unpaid wages, fringe benefits, or other benefit payments or contributions of a subcontractor — at any tier! The new law governs private projects only and applies even if the direct contractor has paid its subcontractor.

Labor Code section 218.7(f) does give the direct contractor the right to inspect each of its subcontractor’s employees’ wage statements and payroll records maintained under Labor Code section 1174. Significantly, such “records must contain information sufficient to apprise the requesting party of the subcontractor’s payment status in making fringe or other benefit payments or contributions to a third party on the employee’s behalf.” Importantly, the direct contractor may withhold as “disputed” all sums owed if a subcontractor fails to timely provide the payroll or project information referenced below, until that information is provided. Without a doubt, judges, arbitrators, and juries will be soon called upon to determine factual disputes as to whether a subcontractor timely, properly and/or sufficiently complied with AB 1701 and the subcontract agreement’s requirement to provide such payroll or project information.

Subcontractors are reporting that direct contractors have updated their standard subcontract agreements to address AB 1701’s impacts — and in some cases, complain that direct contractors are now overreacting and overreaching.

Here are some of the common (and uncommon) newly created subcontract provisions proposed by direct contractors for California private projects going forward:

  • Subcontractor’s strict compliance with all wage and hour regulations, including specific defense, indemnity and hold harmless provisions to protect the direct contractor against claims for unpaid wages or benefits brought on behalf of the subcontractor’s employees;
  • Requirement for subcontractors to include a similar contractual provision in their own subcontracts that would require lower-tier subcontractors to also defend and indemnify the direct contractor for claims arising from their respective employees’ work;
  • Direct Contractor’s right to inspect payroll records (at a minimum, information set forth in Labor Code section 226) and project award information (that includes the project name, name and address of the subcontractor, contractor with whom the subcontractor is under contract, anticipated start date, duration, and estimated journeymen and apprentice hours, and contact information for its subcontractors on the project); specifically, subcontractors are being contractually compelled to provide payroll records and project award information at specific periodic intervals to ensure compliance with the law, and sometimes within 24 hours upon the Direct Contractor’s request (the records requested are similar to certified payroll reports required on prevailing wage projects);
  • A backcharge/withholding provision that confirms the Direct Contractor’s right to backcharge or withhold payments from the subcontractor pursuant to Labor Code section 218.7;
  • A provision giving the Direct Contractor the power to approve or reject the hiring of subcontractors of all tiers;
  • Requirement for subcontractors at every tier to provide security in the form of a properly worded payment bond or letter of credit to satisfy claims that are made against the Direct Contractor under the new law;
  • Personal guarantees from owners, officers, and other key subcontractor personnel.

In addition, many Direct Contractors have already implemented a cumbersome “belts and suspenders” type system to confirm evidence of proper payments to downstream employees and other third parties (e.g., securing signed payment acknowledgments by each subcontractor and sub-subcontractor employee and by those third parties entitled to recover fringe benefits or other contributions), as well as a system to prevent fraudulent claims (e.g., identification check-in software or other registration and security methods to confirm the presence and identification of all employees on a job site.

Of course, subcontractors should, at a minimum, flow down all appropriate subcontract provisions to their sub-tier subcontractors. Subcontractors will also want to limit and clearly define the documentation it must provide to the Direct Contractor to comply with AB 1701 and their contractual responsibilities.

 

The content contained herein is published online by Gibbs Giden Locher Turner Senet & Wittbrodt LLP for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel.

Copyright 2018 Gibbs Giden Locher Turner Senet & Wittbrodt LLP

Avoiding Traps for the Unwary: What Nevada Claimants Must Know about Mechanic’s Liens in Bankruptcy

By: Tracy M. O’Steen and James Patrick Shea

This article assumes that the debtor is the owner of the real property where the services and/or materials were provided. Different issues may arise if the debtor is not the owner, but rather the general contractor with respect to the construction project. This article does not address such issues.

Nevada state law provides a fairly straightforward process for perfecting mechanic’s liens. Under Chapter 108 of the Nevada Revised Statutes (“NRS”), there are specific steps to follow. In its most simplified version, in Nevada a claimant must (1) record its notice of lien[1], (2) properly serve the notice of lien[2], and (3) foreclose on the mechanic’s lien through court action[3]. However, when a bankruptcy comes into play, there are some traps that may befall the unwary. Understanding how the perfection and foreclosure of a mechanic’s lien is altered by the Bankruptcy Code requires a basic understanding of both Nevada construction law and bankruptcy law. Certain provisions of the Bankruptcy Code modify some of the basic concepts generally understood to be true in the area of mechanic’s lien law.

Perfecting a Mechanic’s Lien Post-Petition:

What happens when a claimant has provided goods and/ or services for a construction project, but before the claimant has either been paid or perfected its mechanic’s lien, the owner of the project files for protection under the Bankruptcy Code? Typically, once a bankruptcy petition has been filed, the “automatic stay” under 11 U.S.C. § 362(a)(4)[4] prohibits “any act to create, perfect or enforce a lien against the property of the estate.” This would seem to be a straightforward prohibition against taking any action to file and perfect a mechanic’s lien covering pre-petition goods and/or services. An unwary claimant may then stop all efforts to perfect and enforce its mechanic’s lien once a bankruptcy has been filed, and then lose those lien rights as a result. However, Bankruptcy Code Section 362(b)(3) specifically carves out an exception for perfecting a mechanic’s lien post-petition. This section states that the automatic stay does not apply to “any act to perfect, or to maintain or continue the perfection of, an interest in property to the extent that the trustee’s rights and powers are subject to perfection under § 546(b) of [the Bankruptcy Code].[5]

Section 546(b)(1), in turn, limits the Trustee’s powers to avoid liens by providing that those powers are subject to any “generally applicable law” that would permit “perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of perfection.” In other words, most bankruptcy courts agree that state mechanic’s lien statutes that allow a supplier of labor and materials to assert a lien relating back to the time such labor or materials were first provided fall within the scope of § 546(b)(1). Under Nevada law, a mechanic’s lien may relate back to a pre-petition date if that date is when the labor and materials were originally supplied[6]; therefore, the act of recording and perfecting a mechanic’s lien under such circumstances is not subject to the automatic stay. That being said, the claimant may still want to seek a comfort order from the bankruptcy court prior to taking such an action and is encouraged to file a proof of claim regarding its lien as well.

Impact of the Automatic Stay on Actions to Foreclose a Mechanic’s Lien:

Even if a mechanic’s lien is perfected, whether that perfection occurred pre-bankruptcy or post-bankruptcy, the automatic stay will impact a claimant’s ability to either initiate or continue a suit to foreclose on the mechanic’s lien. The Bankruptcy Appellate Panel for the Ninth Circuit Court of Appeals has specifically concluded that the commencement of a foreclosure suit by the claimant post-petition violates the automatic stay.[7] This creates a major problem in Nevada since the procedure to enforce a properly perfected mechanic’s lien is the commencement of a foreclosure lawsuit within six months from the date the lien is recorded. Of course, a claimant may always seek relief from the automatic stay to commence or continue an action to enforce its lien. However, as an alternative, the Bankruptcy Code allows a claimant to preserve its rights by taking the substitute action of giving notice of its right to enforce the mechanic’s lien. It is recommended that this notice be filed in the bankruptcy case within the same time frame the claimant would be required to commence its action to foreclose the mechanic’s lien under Nevada state law. In Nevada, that time frame is six months from the date the Mechanic’s Lien is originally recorded.[8]

The Notice Required by § 546(b)(2):

Unfortunately, although the Bankruptcy Code requires the claimant to file a notice in the bankruptcy court to preserve its state law lien rights, the Bankruptcy Code fails to provide specific guidance as to what constitutes the requisite notice. The notice requirements under § 546(b)(2) differ from jurisdiction to jurisdiction, and unfortunately, there are no reported cases in Nevada dealing with the sufficiency of the § 546(b)(2) notice. However, the Ninth Circuit has concluded that the filing of a secured Proof of Claim is not sufficient to satisfy the § 546(b)(2) notice to maintain the mechanic’s lien nor is the recording of the lien itself.[9] Something more must be done to maintain the perfection of the mechanic’s lien or it will expire within the statutory six month period.[10] The guiding principle seems to be that the notice should inform the court and debtor that the creditor would have commenced the foreclosure action had bankruptcy not intervened. Despite some courts holding that oral notice or out-of-court action evidencing an intent to assert and enforce a lien can be sufficient, most courts conclude that § 546(b)(2) requires that something in writing be filed in the bankruptcy case.[11] A claimant should, at a minimum, file a pleading in the bankruptcy case that expressly provides that (1) the claimant has a right to assert a mechanic’s lien under applicable state law; (2) it intends to assert and enforce such a lien; and (3) it is authorized to do so under Bankruptcy Code provisions. The filing of this notice should preserve the claimant’s lien rights through the duration of the bankruptcy case.

Tolling of the Foreclosure Deadline:

Assuming the claimant has taken all the proper steps to preserve the lien, a majority of courts, including the Ninth Circuit Court of Appeals, agree that § 108(c) of the Bankruptcy Code tolls the deadline for commencing a foreclosure action to enforce a mechanic’s lien.[12] A claimant who timely records a mechanic’s lien under Nevada law and files the required notice under § 546(b)(2) in lieu of commencing a foreclosure action, has at least 30 days after the termination of the automatic stay (which may occur upon dismissal of the case or abandonment or surrender of property) to commence or continue its foreclosure action.[13] It is important to note that § 108(c) of the Bankruptcy Code only operates to toll the time period for commencing or continuing a civil action to foreclose the mechanic’s lien, and cannot be used to extend the time period for filing the original lien or the § 546(b)(2) notice discussed above.

Conclusion:

Claimants are cautioned to seek counsel if they have provided labor and materials with respect to a construction project and the property owner files for bankruptcy protection. In order to assert, perfect and maintain their lien during the bankruptcy case and avoid traps for the unwary, careful attention should be paid to the requirements of Nevada’s mechanic’s lien statute and the Bankruptcy Code. Otherwise, claimants risk waiving their mechanic’s lien rights.

Tracy O’Steen is an attorney in Armstrong Teasdale’s Financial and Real Estate Services practice group. She counsels clients on bankruptcy matters, distressed loans, commercial loan transactions, receiverships, landlord tenant disputes and other related commercial litigation. Mr. O’Steen can be reached by phone at 702.678.5070 or by email to tosteen@armstrongteasdale.com.

James Patrick Shea is a partner in Armstrong Teasdale’s Financial and Real Estate Services practice group and the immediate past president of the American Bankruptcy Institute. He has more than 30 years of experience advising financial institutions, landlords, vendors and other creditors in business bankruptcy proceedings. Currently, he serves as Special Counsel to the Chapter 7 Trustee in the Fountainebleau mechanic’s lien litigation. Mr. Shea can be reached by phone at 702.678.5070 or by email to jshea@armstrongteasdale.com.

====

Footnotes:

1 NRS 108.226.
2 NRS 108.227.
3 NRS 108.223; NRS 108.239.
4 Unless otherwise stated, all section references in this article refer to sections of the United States Bankruptcy Code.
5 In re Orndorff Construction, Inc., 394 B.R. 372 (Bankr. Ct. M.D.N.C. 2008) (“An action to perfect a materialman’s lien is excepted from the automatic stay by Section 362(b)(3)”). See also In re Richardson Builders, Inc., 123 B.R. 736, 738 (Bankr. W.D. Va. 1990); In re Victoria Grain Co. of Minneapolis, 45 B.R. 2, 6 (Bankr. Minn. 1984).
6 NRS 108.222 (amount of lien); NRS 108.225 (a lien under this chapter is preferred to any lien recorded after the commencement of construction of a work of improvement).
7 In re Baldwin Builders, 232 B.R. 406 (9th Cir. B.A.P. 1999).
8 NRS 108.223.
9 In re Baldwin Builders, 232 B.R. at 413-14 (9th Cir. B.A.P. 1999).
10 NRS 108.223; In re In re Baldwin Builders, 232 B.R. at 413-14.
11 See In re Baldwin Builders, 232 B.R. at 413-14 (collecting cases).

 

Buy Once, Pay Twice? No! The Purpose of Lien Waivers

Homeowners sometimes get blindsided when it turns out the GC they hired hasn’t paid his subs or materials suppliers. The lien waiver in your contract protects homeowners against this.

BY JIM CORY

If you live in Tampa and own a house, count your blessings that you never hired John Iacovino and Ike’s Roofing to replace your roof. If you had, you may have ended up like John Pfaff who paid Iacovino $8,800 to re-roof his home. The roof got replaced, only Iacovino, owner of Ike’s Roofing, never paid for the roofing materials he obtained on credit from Suncoast Roofing Supply. And because, after first sending a Notice to Owner, Suncoast Roofing Supply filed for a mechanic’s lien on the property, Pfaff is now obligated to pay for the $3,700 worth of materials the supplier furnished to do the job. According to the local sheriff’s office, Suncoast Roofing Supply is out about $150,000 and there are now 70 properties with liens on them, thanks to Iacovino, who has a history of drug and DUI arrests.

Secure the Receivable

What that lien could potentially mean for Pfaff is that Suncoast Roofing Supply can force the sale of his home at auction—foreclose on it—to satisfy the $3,700 it is owed.

More likely, however, is that when he goes to sell his property, or if he attempts to refinance it, the amount owed to Suncoast Roofing Supply will be paid from the proceeds of the transaction. A mechanics lien, in legalese, is designed to “secure the receivable.” Goods or services were rendered in good faith, and the lien, to ensure payment, becomes an encumbrance to the sale or transfer of the property.

The mechanics’ lien (standard usage is now ‘Mechanics Lien’) has been around since 1791 and was first conceived in modern form by Thomas Jefferson as a way to encourage construction on the nation’s capital. The concept owes its existence to the economics of the construction business. Mechanics liens were created as a unique legal remedy to protect contractors and those who supply them with labor (subcontractors), materials (supply yards), or specialized services, such as design (architects, etc.), from being stiffed. Wikipedia.com defines the mechanics lien as “a security interest in the title to property for the benefit of those who have supplied labor or materials that improve the property.”

On one level, a mechanics lien entitles a contractor to come after a homeowner who refuses to pay. But it also entitles subcontractors or suppliers to come after that homeowner, and specifically the property, should the general contractor fail to pay either party as agreed. Under the law—every state has one and every state’s will differ—the improved property becomes collateral for payment. “A mechanic’s lien has nothing to do with mechanics in the usual sense,” notes legal website Nolo.com. “It’s a legal claim against property being improved, and it can be filed by anyone who provides materials or does work on the project and doesn’t get paid. The property itself becomes responsible for the debt, and the people who are owed money can force its sale at auction if something isn’t worked out.” That is, the lien holder (say Suncoast Roofing Supply, in the example above) could sue for foreclosure to satisfy the debt. Even if sale of the house at auction is not in the picture, “you cannot sell or refinance your home without dealing with the mechanics lien,” notes Colorado law firm Robinson & Henry, P.C.

“Thus when a creditor is owed a few thousand dollars he may record a Mechanics’ Lien against real property which may have a value of hundreds of thousands of dollars. You can see the leverage he has in collecting this debt! This is a great tool for mechanics, tradesmen, subcontractors, labor providers, and material providers. But it must be used properly or the Mechanics’ Lien may be found invalid and thus unenforceable.”

Not That Complicated

If you’re a contractor who’s been stiffed, or a supplier left holding the bag, the idea of taking legal action around the concept of a mechanics lien might sound complicated and expensive. Actually, it isn’t at all hard to file a mechanics lien. In Pennsylvania, for instance, you could simply go to anscers.com, fill out the online forms, submit them, and allow the lien service to file for you. The cost: $290, though the price goes to $850 for a New Jersey residential lien. Generally, counties charge a filing fee of less than $50, but the cost of preparing a lien, which would require a lien service or a lawyer, would be anywhere from $250 to $500.

The key is to move quickly and not let the situation drag on. You snooze, you lose. In New York, for instance, “you must file your mechanic’s lien within four months of the time that you last provided labor or materials to the project,” according to the website for New York Mechanic’s Lien. The time frame will differ in every state. So, similarly, is the requirement that preliminary notice—Notice of Intent to File a Lien—must be given, or, in some states, you as a subcontractor or supplier forfeit your right to file a lien. (Click here for a state-by-state breakdown of requirements for preliminary notice.) So, for example, in Florida, to collect for the materials it supplied to John Iacovino and Ike’s Roofing, Suncoast Roofing Supply would have to have served John Pfaff with a Notice to Owner (NTO)—preferably by registered, Global Express Guaranteed, or certified mail— “within 45 days from first furnishing services or materials.” That’s not a huge amount of time. Note that, according to the site: “Failure to
provide the notice within the statutorily mandated time frame is fatal to the lien claim in Florida.” The lien itself would need to be filed with 90 days of the date the materials were supplied and must be notarized to be valid.

In the state of California, mechanic’s liens are a constitutional right guaranteed to contractors by the California Constitution. This right has been implemented in detail by statutes enacted by the California State Legislature.

Lien Waivers

What Pfaff could have done to save himself the aggravation and expense of the mechanics lien filed by Suncoast Roofing Supply was to demand a waiver of liens, or a subcontractor lien waiver, in the contract he signed with Ike’s Roofing, if in fact he signed one. “With a lien waiver, when the project is successfully completed, both parties sign off and state that the contract obligations have been met, including the general contractor [in this case, Iacovino] making all necessary payments to materials suppliers, subcontractors or vendors,” advises the Angie’s List review site. “If the general contractor doesn’t agree to sign off on the subcontractor lien waiver, you can withhold payment until he or she has proved they’ve paid their suppliers or subcontractors.”

As for Pfaff, he can take some small amount of comfort in knowing that mechanics lien claims … very rarely result in a piece of property getting put up for auction and sold. As in, almost never. According to the source, and based on a survey of mechanics lien filings from 2011, 64 percent of lien claims were paid within three months, “without any additional legal or collection efforts whatsoever.” Which means that the mechanics lien functioned as Jefferson intended. So Pfaff will almost certainly keep his house. But unfortunately for him, he paid 50 percent more for that home’s roof than he ever thought he would have to.

 

ABOUT THE AUTHOR

Philadelphia-based freelance writer Jim Cory is a senior contributing editor to Professional Remodeler who specializes in covering the remodeling and home improvement industry. Reach him at coryjim@earthlink.net.

 

This article originally appeared on Professional Remodeler’s website. To read the original story, click here.

 

What’s a Defective (or Improper) Mechanic’s Lien, and How Does it Impact the Construction Project, by Sergey Garanyants

In certain instances, a mechanic’s lien filed by a contractor, subcontractor or material supplier can become either “improper” or “invalid” under relevant lien statutes, or “defective” on its face. In such cases, the owner is entitled to remove and/or discharge the mechanic’s lien so that the property is no longer burdened by it.

Many states provide for a different process to properly record a lien against a residential property, as compared to a commercial property. Nevertheless, the process of discharging an improper or invalid lien is largely the same.

Some of the most common situations that give rise to a defective lien occur when: 1) the lien claim is without basis, 2) the amount of lien claim is excessive or misstated, 3) filing of the lien claim was not performed in accordance with the relevant lien law statute, or 4) filing of the lien claim was not performed in time prescribed by the relevant lien law statute. In such situations, lien claimants generally forfeit their lien rights, and, in some instances may forfeit additional or subsequent remedies.

Moreover, many states mechanic’s/construction lien statutes punish contractors, subcontractors and suppliers who willfully fail to remove or release such improper lien claims, especially, if the notice of invalid lien was given by a party challenging its validity.

If it has been determined that your lien claim is invalid or improper, you must first provide the appropriate notice to the property owner challenging the validity of your lien and, in some situations, to the general contractor. Once such notice is given, lien claimants generally are allowed some period of time to discharge or release their lien claims by making appropriate filing with the state’s real estate records. The period of time to release an improper lien varies depending on the state. If the improper lien was not released, a property owner may file a complaint with the court in the state where the lien was recorded. Many state statutes will allow property owners, who were forced to pursue court action to remove or release an improper lien, to recover court costs and legal fees incurred in pursuing such action.

Source: “Removing Invalid Construction Lien”, the National Lien law Review, September 15, 2016, http://www.natlawreview.com/article/removing-invalid-construction-lien, Copyright © 2016, Stark & Stark.

Sergey Garanyants runs CMA’s Construction Forms Filing Services, helping CMA members in the construction industry protect their lien rights in all 50 U.S. states. For information about CMA’s construction forms filing services, visit http://creditmanagementassociation.org/services/construction-forms-filing/

Why Are Lien Waivers Important?, by Sergey Garanyants

Lien waivers and releases, which were once just a way for owners and general contractors to make sure they wouldn’t have to pay for the same work or material twice, are now became something much more broader affecting much more than just a mere mechanic’s lien rights.

Mechanic’s liens (a.k.a. construction liens) are designed to provide additional protection and way to ensure payment for contractors, subcontractors or suppliers for the work provided or material supplied. A mechanic’s lien essentially gives the person or company an interest in the property equal to the unpaid amount, affecting the owner’s ability to convey or transfer the property free and clear without paying the amount owed. While such laws aim to protect contractors and subcontractors, it also creates a risk for property owners and real estate developers of paying for the same work or material twice. In an attempt to protect themselves, developers, property owners and contractors are now increasingly insistent on the practice of obtaining a signed waiver or release of lien rights to the extent actually paid, as condition to furnish any payments to contractors and subcontractors working on the project. However, signing such waivers may directly or indirectly cause for contractors and subcontractors to “sign away” many of their rights to dispute contractual and related project issues.

Modern-day construction lien waivers and releases became much broader than simply addressing mechanic’s liens. In some instances, signing a release not only waives the right to file a mechanic’s lien, but also waives the ability to file claims for any other related issues, such as breach of obligations by a party to a contract, delays caused by mismanagement of the project, or additional expenses incurred. Contractors, subcontractors and suppliers should remember to preserve their own rights when executing any construction waivers or releases. For example, if a subcontractor is concerned about underpayment, it could refuse to accept payment until the general contractor has been paid in full, or the subcontractor could accept payment, but note on the release that it was reserving the right to make certain additional claims.

Many projects usually only have one general contractor, and each general contractor knows all of its subcontractors or suppliers, each of whom may be eligible to file a mechanic’s lien. However, many state construction lien laws are now allowing tier 2 and tier 3 subcontractors, including suppliers and others with whom the general contractor has no direct relationship, to file mechanic’s liens, thus creating a much larger and potentially unknown number of parties that are able to create liability on the project. That is why many general contractors require their subcontractors to acquire signed lien releases from all other subcontractors and suppliers on a periodic basis before issuing any payments. One of most common issues challenging the ability to secure signed lien releases on a monthly basis is the struggle of many companies to maintain enough cash flow to make all of their payment obligations in time. It can be easy for companies to find themselves in a difficult situation in which they can’t afford to pay their subcontractors or suppliers right away, and, in the same time, they can’t obtain payment from the general contractor or the owner without first providing a signed release stating in turn that they have already paid everyone.

It is vital that general contractors and subcontractors review the proposed contractual language carefully in order to ensure the appropriate cash flow and lines of credit, so they are able to fulfill their payment obligation when required. Carefully review the exact terms of any release or waiver you are expected to sign. Exercise care before accepting any payment, particularly if the payment is not for the full amount owed. Most importantly, always remember that lien waivers are separate obligations, and no matter how unfair the underlying result may be, courts are very likely to uphold provisions of signed waiver or release.

Source: Joshua R. Lorenz: “Mechanic’s Lien Waivers Place Burden on Contractors and Subcontractors; Construction Law”, the Legal Intelligencer (Online), September 6, 2016; Copyright 2016 ALM Media Properties, LLC.

Sergey Garanyants runs CMA’s Construction Forms Filing Services, helping CMA members in the construction industry protect their lien rights in all 50 U.S. states. For information about CMA’s construction forms filing services, visit http://creditmanagementassociation.org/services/construction-forms-filing/ 

Construction News: Mechanic’s lien on Tenant Improvement and Commercial Leasing Projects, by Sergey Garanyants

A mechanic’s lien (also known as construction lien, laborer’s lien, artisan’s lien, supplier’s lien, materialman’s lien, and professional’s lien) is a special security interest that may be acquired in property by someone who expends material, resources or labor working on that property, and is, generally, effective until the lien holder gets paid for services provided. (Definition from Cornell University Law School, Legal Information Institute as published at https://www.law.cornell.edu/wex/mechanics_lien).

In some instances, tenant improvement work may lead to a mechanic’s lien on the owner’s property. Due to the fact that mechanic’s lien laws are not uniform in each state, there are many factors to consider when your company is getting involved with tenant improvement projects.

In Missouri, a contractor performing work for a tenant may acquire mechanic’s lien rights on a landlord’s property interest if certain factors surrounding the landlord-tenant agreement are present, including (but not limited to) the “mandated nature to perform a complete build-out” of the premises by tenant, and whether such “improvements are required and completed under the control of the owner with the view of improving the property.” See Crafton Contracting Co. v. Swenson Construction Co., No. ED102910 (Mo. App. E.D. April 12, 2016); see also Missouri Revised Statute § 429.010.

In Minnesota, a property owner is not subject to a mechanic’s lien for improvements contracted by another if the owner gives “adequate notice of the owner’s intent not to be bound” by such contract. See Marksman Const. Co., Inc. v. Mall of Am. Co., C0-97-1030, 1997 WL 757392 (Minn. Ct. App. 1997); see also M.S.A. § 514.06. This practice is also known in some states as the “Notice of Non-responsibility” and may require to be properly recorded by the owner with the county land records in order to be enforceable.

In Virginia, generally, a mechanic’s lien in tenant improvement projects extends only to that portion of property on which the laborer or materialman has worked, precluding the lien from extending to the entire building or property. See Elder-Jones, Inc. v. Byers, Inc., 23 Va. Cir. 40 (Va. Cir. Ct. 1990); see also VA Code Ann. § 43-20.

Similarly, Texas laws support the proposition that a lien on real property cannot be established simply by nature of a construction contract between a tenant of the property and the laborer or materialman, and the mechanic’s lien should attach only to the leasehold interest of the tenant, and not to the entire land interest of the owner. See 2811 Associates, Ltd. v. Metroplex Lighting and Elec., 65 S.W.2d 851, 852 (Tex. Ct. App. 1989).

In Maryland, a mathematical formula, estimating the value of improvements made to leased premises as compared to the value of entire building, will be used to determine if a mechanic’s lien is “substantial enough” to be placed on the entire building or property. See MD. Real Prop. Code Ann. § 9-103; see also Hurst v. V & M of Virginia, Inc., 293 Md. 575 (Md. App. 1982).

Given the complexities of the mechanic’s lien laws, it important to obtain all the relevant information on the tenant improvement project in order to better protect your lien rights and avoid becoming subject to various limitations. Please contact CMA’s Forms Filing team if you have questions.

Source: Krista C. McCormack, “Tenant Improvements Lead to Mechanic’s Lien on Owner’s Property”, Commercial Leasing Law and Strategy: Pg. 3, Vol. 29, No. 3, September 1, 2016, Copyright 2016 ALM Media Properties, LLC.

Sergey Garanyants runs CMA’s Construction Forms Filing Services, helping CMA members in the construction industry protect their lien rights in all 50 U.S. states. For information about CMA’s construction forms filing services, visit http://creditmanagementassociation.org/services/construction-forms-filing/

A Contractor Will Serve 45 Days in Jail for Wrongful Lien Against Residential Property, by Sergey Garanyants

If you supply materials or labor to construction projects, make sure that you protect your company’s lien rights under the law. In doing so, remember that it is crucial to file liens properly and in a timely fashion.

A Wisconsin contractor will serve 45 days in jail and will pay a $3,505.46 fine for wrongfully filing the lien against residential property in Winnebago County, Wisconsin. According to the Oshkosh Northwestern, a 51-year-old owner of the local construction company illegally filed a construction lien on the residential home without giving proper notice to the homeowners as required by Wisconsin Construction Lien Laws. The homeowners discovered the wrongfully recorded lien when they contacted a financial institution in the attempt to refinance their property.

The contractor has been convicted with criminal slander of title after a jury determined he illegally filed a lien against the owners without properly notifying them. Moreover, the Winnebago County Circuit Court ordered the contractor to pay a $3,505.46 fine, and imposed additional restrictions on the contractor’s personal and business affairs, which included such obligations as – to inform potential customers about the conviction; to not have or use alcohol, drugs or paraphernalia; to submit a DNA sample; to not control any bank accounts; and to undergo any additional necessary counseling as may be required.

According to the contractor, he did notify the property owners but later lost the paperwork that would prove the fact that proper notice was given, and subsequently released the lien. “It’s amazing that, as a contractor, I can go to somebody’s house … and they decide they’re not going to pay for 50 percent of it, and then all of a sudden they can be suing me.” – the contractor told USA TODAY NETWORK-Wisconsin.

Source: Nathaniel Shuda – The Oshkosh Northwestern, USA TODAY NETWORK-Wisconsin, as published on November 24, 2015, August 6, 2016 and August 12, 2016.

Sergey Garanyants runs CMA’s Construction Forms Filing Services, helping CMA members in the construction industry protect their lien rights in all 50 U.S. states. For information about CMA’s construction forms filing services, visit http://creditmanagementassociation.org/services/construction-forms-filing/

Construction Industry – Pitfalls to Avoid

For the most part, the construction industry is struggling through lean times. According to the U.S. Department of Commerce’s U.S. Census Bureau report for May, for the first five months of 2008, construction spending totaled $416.6 billion, 5.1% below the total for the same period last year. Residential construction spending continues to
topple, dipping to $378.9 billion in May, 1.6% below April and 26.9% below May 2007. Private construction spending as a whole has shed almost 10% year-over-year.
With standards remaining tight in the credit markets, the impacts are being felt the length of the value chain. There is a trickle-down effect from the creditors to developers, from the developers to the builders—who are sitting on a
large inventory of homes—and from the builders down to the subcontractors. In his CMA-sponsored teleconference “Pitfalls to Avoid in Being a Subcontractor on a Construction Site,” Byron Saintsing, partner, Smith Debnam Narron Wyche Saintsing & Myers, LLP, shared a wide range of information from lien claims and payment bonds to
bankruptcy issues to help subcontractors and other construction site partners keep their heads above water during difficult times.

“The market out there today, at least on the residential side, is in pretty bad shape and I think everyone knows that,” said Saintsing. “If you are dealing with and are selling to a subcontractor that’s on the residential side of the market, chances are that they have hit some bumps in the road and if they haven’t, they’re going to.”

First and foremost, Saintsing suggested maintaining high credit standards. There is often pressure from the sales department when sales are down to ask credit departments to cut corners, extend terms, create special terms and simply relax standards across the board, but from the credit managers’ perspective, this is the time to remain firm.

“Now is not the time to loosen your credit standards,” stated Saintsing. “If you do, I’m afraid you’ll see your bad debt write-offs continue to go up, not down.”

Saintsing recommended that credit professionals examine their documentation and make sure contracts are
being properly executed. If they are taking collateral, they want to take a look at things like proof of delivery, verification of where that collateral is and they want to make sure that their UCC-1 financing statements are properly filed. Customers need to be examined to determine what kind of ability they have to repay the credit that’s being extended to them. Due diligence needs to be practiced with credit and trade references, as well as with financial statements and credit reports.

“You want to take extra precautions in this environment to verify who your customers are and what kind of entity
they are,” explained Saintsing. “You really do need to know on the front end who you are dealing with and what their ability to pay is. The time to ask those questions is not on the back end when you have a payment problem.”

There are legal avenues available if payment problems do occur. For example, if a bankruptcy has been
filed, or imminent, credit managers are eligible for reclamation rights under the Uniform Commercial Code. Non-bankruptcy law reclamation rights state that creditors have 10 days after their customers received
goods of sale to give notice of reclamation if the customer was insolvent when they received them.

“That’s not very much time, so reclamation rights, in the real world, are hard to assert,” said Saintsing. “It’s easy for a lawyer like me to say, ‘Sure, go file a reclamation notice.’ But in the real world, not many people are paying within 10 days, so it makes it tough to use reclamation rights. But they are available.”

Of course, mechanic’s liens on private projects and payment bonds on public projects are courses of action as well. But because statutes vary from state to state, credit departments need to have resources that specify all the nuances to ensure they are eligible to recover what’s due to them. CMA has tools to give detailed information on each state’s procedures and policies.