Procedural Errors Can Cost You Your Mechanic’s Lien Rights

PROCEDURAL ERRORS CAN COST YOU YOUR MECHANIC’S LIEN RIGHTS

DON’T TRY TO SAVE A BUCK AND LOSE THE BANK

I am often requested to either enforce or dissolve a mechanic’s lien. Unlike basement bargain on-line mills that prepare mechanic’s liens without close attention to statutory detail, I carefully examine my client’s paperwork to make sure that when I file a mechanic’s lien, it does not fail for procedural reasons. The detailed nature of Massachusetts mechanic’s liens cannot be over emphasized.

“A mechanic’s lien is a creation of statute and can be enforced only by strict compliance with the statute.” Trace Construction, Inc. v. Dana Barros Sports Complex, LLC, 459 Mass. 346, 352 (2011). Section 15A of Massachusetts General Laws sets forth the consequence of failing to strictly follow the detailed procedure to prepare record and enforce a mechanic’s lien. It states:

If any person in interest, including but not limited to an owner, contractor, or mortgage holder, claims (a) that any person who has provided labor or materials or has agreed to provide funding, financing or payment for labor or materials, refuses to continue to provide such funding, financing or payments of labor or materials solely because of the filing or recording of a notice of contract pursuant to section two or a statement of claim referencing a lien under section one, or (b) it appears from the notice of contract or a statement of account that the claimant has no valid lien by reason of the character of, or the contract for, the labor or materials or professional services or rental equipment, appliances or tools furnished and for which a lien is claimed, or (c) that a notice or other instrument has not been filed or recorded in accordance with the applicable provisions of this chapter, or (d) that for any other reason a claimed lien is invalid by reason of failure to comply with any provision of this chapter, or (e) that any party’s rights are foreclosed by a judgment or release, or (f) that any party wrongfully refuses to execute a notice of completion as required by section two A or improperly files or records a notice of termination under section two B, such person may apply to the superior court for the county where such land lies or in the district court in the judicial district where such land lies, for an order (i) ruling on the matter involved or (ii) summarily discharging of record the alleged lien or notice as the case may be. The holder of any recorded mortgage upon the affected property shall receive notice of and be entitled to appear and be heard in any proceeding brought under this section. An order of notice to appear and show cause why the relief demanded in the complaint should not be granted shall be served upon the necessary parties no later than seven days prior to the date of the scheduled hearing. If the necessary parties cannot be found, such service may be made as the court shall direct. The application shall be made upon a verified complaint accompanied by other written proof of the facts upon which the application is made. Upon granting or denying the application, the court shall enter a final judgment on the matter involved or expeditiously order such further proceedings as are just.

Reliance on anyone not a Massachusetts attorney to prepare a mechanic’s lienin Massachusetts could impair your mechanic’s lien. An attorney familiar with Massachusetts Construction Law, such as Alan M. Cohen, is your best bet to properly prepare your mechanic’s lien.

Not only is it essential to properly prepare your mechanic’s lien, it is essential to hire an experienced attorney who knows how to perfect the lien once filed. Non-construction law attorneys often miss the final requirement necessary to perfect the lien after suit has been filed.

Section §5(2) of the Massachusetts Mechanic’s Lien statute requires in relevant part that:

A lien upon land for the erection, alteration, repair or removal of a building or other structure or other improvement of real property or for professional services relating thereto or a lien established under section seventy-six of chapter sixty-three, or section 6 of chapter 183A shall be enforced by a civil action brought in the superior court for the county where such land lies or in the district court in the judicial district where such land lies. The plaintiff shall bring his action in his own behalf and in behalf of all other persons in interest who shall become parties. An attested copy of the complaint, which shall contain a brief description of the property sufficient to identify it, and a statement of the amount due, shall be filed in the registry of deeds and recorded as provided in section nine within thirty days of the commencement of the action, or such lien shall be dissolved. . . . (Emphasis added).

The statutory requirement of recording an attested true copy of the complaint is mandatory. The statute is clear about the consequence of the failure to file in a timely fashion: the “lien shall be dissolved.” Botany Bay Constr. Co. v. Pullman Modular Indus. (2011) 29 Mass L Rep 398, 2011 Mass Super LEXIS 329. A Court has no discretion but to dissolve a mechanic’s lien when the attested to copy of the complaint is not timely recorded.. Botany Bay, supra.

When the lien is dissolved, you lose!!

Don’t try to save a buck and lose the bank. Rely on an attorney experienced with filing, perfecting and enforcing mechanic’s liens, contact Alan M. Cohen at 508-620-6900 or email alanmcohen@collections-law.com.