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Massachusetts Mechanics Lien FAQs

In Massachusetts, a mechanics lien protection can be sought after by a general contractor, sub-contractor, sub-subcontractor or professional service provider that provides either materials or labor to the construction, repair, renovation or removal of a structure on land.

When it comes to understanding a mechanics lien in Massachusetts, the law can get very confusing, simply because the area of mechanics lien is complex That said, there are many instances when an individual might have to ask themselves the question of whether they can file for a mechanics lien. Keeping that in mind, the following lines are going to attempt to answer some of the most common questions asked by individuals looking to file a mechanics lien in Massachusetts.

What’s the Ideal Time to File a Mechanics Lien?

According to the law in Massachusetts, when a mechanic’s lien must be filed depends on whether you have directly contracted with the owner of the property. Generally, a Notice of Contract must be recorded no later than 90 days after you have supplied materials and/or labor to the job site. Despite the fact that you have the 90-day period, when you have not contracted directly with the owner, you risk having the owner pay the full contract sum to the general contractor or the general contractor abandoning the job site before you give the owner notice of your lien. In either event, you could be within your statutory rights but still be out of luck when it comes to perfecting your lien rights.

Am I Required to Send the Property Owner a Copy of the Notice of Contract, the Initial Recording Necessary to Perfect a Mechanic’s Lien in Massachusetts?

It depends. How is that for a lawyerly response!!

It depends on your situation. An experienced mechanic’s lien attorney such as Alan M. Cohen can provide you with the advice and representation you need in such situations. Generally, general contractors do not have to give the property owner a copy of the Notice of Contract, although as a practical matter it is a good idea. Anyone other than a general contractor is required by the Massachusetts Mechanic’s lien statute to provide the owner of the property with actual notice of the mechanic’s lien document that you have recorded at the Registry of Deeds with proper marginal referencing. To do that, you can send a copy of the lien to the owner of the property via certified mail and request for a return receipt (this could come in handy as evidence later on).

For How Long is the Massachusetts Mechanic’s Lien Effective Without Filing Suit?

In Massachusetts, if you have not filed suit within ninety days after you have recorded the Statement of Account, the document that tells the world the exact principal amount that you are owed for the labor and materials that you provided to the property, as a matter of law, your mechanic lien rights go poof!! Following the filing of the complaint, the claimant must record an attested copy of the Complaint for Enforcement of the Lien in the Registry of Deeds within thirty (30) 30 days from the commencement of the action—filing suit.

Priority of a Lien Over Construction Loans or Pre-Existing Mortgages?

Normally, a mechanics lien when it comes to personal labor will not hold priority over a mortgage, that is, unless the work that was done began prior to the recording of the mortgage. That said, a lien by a general contractor in Massachusetts will only have priority over a mortgage if the Notice of Contract was recorded sometime before the mortgage funds being advanced. Apart from this, there could be a few other minor conditions that could impact the priority of a mechanics lien in Massachusetts.

In the case of competing mechanics liens, if there’s not sufficient funds to cover the claims during a foreclosure action, all proceeds shall be distributed on a pro-rata basis.

What About the Lawyer’s Fees and Other Expenses?

According to the Massachusetts mechanic’s lien law, interest, costs, and the collections attorney’s fees are not to be included in the total of the mechanics lien amount. The reason for this is that the Massachusetts Mechanic’s Lien statute provides you with the extraordinary ability to file a lien against property owned by a person or entity with which you have no contractual relationship (unless you are the general contractor). The Massachusetts Mechanic’s lien statute as interpreted by Massachusetts courts only allows liens to the extent that the supplies or labor improved the property. Obviously, interest accruing on the unpaid bill and the cost of your collection attorney do not usually improve a property

What is a ‘Legal Property Description’?

Under Massachusetts mechanics lien law, the lien is required to contain a brief description of the property. In other words, it must be a description that’s been provided in the appropriate title documents located at the registry of deeds.

Does the Lien need to be Notarized in Massachusetts?

The Massachusetts law on mechanics lien was amended back in 1996. So, the part which stated that the Statement of Account had to be signed and sworn to has been removed. However, Massachusetts law does require that a ‘just and true’ statement be filed by the claimant in the registry of deeds, either in the county or the district where the land is located. Attorney Alan M. Cohen recommends that Notices of Contract and Statement of Account be signed before a notary public.

What if I’m Not Licensed?

There’s no specific law in Massachusetts that requires the mechanics lien claimant to be licensed for them to be eligible to file a mechanics lien. That being said, someone who is required to be licensed to carry out their work by the state might be penalized for not meeting this particular requirement.

Lien Cancellation After Being Paid?

Under Massachusetts mechanics lien law, once payment is made, the creditor’s rights counsel can prepare a Notice of Dissolution of lien. Unlike discharges of real estate attachment which the experienced collection attorney can directly sign, the creditor must sign the Notice of Dissolution of Lien.

Are there any Waiver Rules on Liens in Massachusetts?

The mechanics liens law in Massachusetts statutorily mandates all parties on the construction project to use legislatively designed construction lien waver forms or forms similar thereto. Massachusetts is only one of a few States that require this under law. It is extremely important to note that if the using a mechanic’s lien form which does not comply with the hyper technical statutory requirements of the Massachusetts Mechanic’s lien law risks creating a defective lien which could nullify and/or impair your mechanic’s liens rights under Massachusetts mechanics lien law. Not only that, a contractor and/or supplier may end up getting in a lot of legal trouble due to this simple mistake. This is the reason why it is always advised to hire experienced Massachusetts Mechanic’s Lien attorney Alan M. Cohen who is experienced in handling cases of mechanics liens in Massachusetts and collecting delinquent construction debts

What is a Preliminary Notice?

Under Massachusetts mechanics lien law there are certain notice requirements that are considered as a prerequisite to filing a mechanics lien. That said, the notice requirements are going to vary according to whether you have contracted with the owner, contracted with the general contractor and/or with the sub-contractor.

A ‘Notice of Contract’ form needs to be recorded as the first “public” notification of your lien rights. If your contract is not directly with the property owner (check registry of deeds), you must give actual notice of the ‘Notice of Contract’ to the property owner.

Another form of a preliminary notice is called a ‘Notice of Identification.’ This needs to be provided to the general contractor and owner by any party who has got a contract with a subcontractor or another party, and who doesn’t have a contract with the general contractor. The ‘Notice of Identification’ is required to be given within at least 30 days of the first furnishing of materials or labor. This is a very important requirement, since failure to provide the notice significantly limits the lien claimant to the amount due to the 1st tier subcontractor during the time the Notice of Contract is being filed by the claimant.

When’s Right Time to Send a Preliminary Notice?

For the parties that are required to provide the Notice of Identification, it should be provided to the general within at least 30 days of the initial furnishing of materials or labor on the project. The Notice of Contract (subcontract) is required to be filed after the execution of the contract. Further requirements include the subcontract being filed no later than the earliest by — 1) 60 days after the filing of the Notice of Substantial Completion, 2) At least 90 days after the filling of the Notice of Termination, or 3) 90 days after the last furnishing or materials or labor to the project. For the protection of their rights, claimants or liens are required to file the Notice as quickly as possible soon after entering into a contract, since the lien might be limited to the amount due to the general or the sub contractor at the time the notice is received.

What if the Preliminary Notice is Sent Late?

If the lien claimant fails to provide the Notice of Identification within the proper time period, they will be limited to the amount due to the 1st tier subcontractor at the time the lien claimant files the Notice of Contract. Failure to file the Notice of Contract within the specified time can be fatal to the lien claim in Massachusetts. Besides that, even when filed in a timely manner, the lien claimant may be limited in the amount of their lien claim if the payments are made by the owner or if the general contractor abandons the project before the Notice of Contract is filed.

How to Send a Preliminary Notice?

A Notice of Contract needs to be recorded in the registry of deeds in the county where the property is located. The lien claimant that does not have a contract with the property owner is required to send the notice to the property owner via certified mail. The Notice of Identification should be provided to the general contractor as well as the owner also via certified mail. Both mails should be return receipt requested. The Notice of Contract needs to be filed in the Registry of Deeds, while the Notice of Identification needs to be provided to the general contractor. In the State of Massachusetts, notices that are sent are considered to be received and recorded if recorded.

What About Filing a Bond Claim in Massachusetts?

In Massachusetts, bond claims can only be filed whenever the contractor, owner or the subcontractor have obtained and recorded a payment bond that ensures that every contractor is going to receive payment for their work that’s performed on a project. The payment bonds that are issued by sureties for a construction project also has specific timing requirements. That being said, most require the claimant to submit their claim against the bond at least within 90 days from the claimant’s last date of work at the site. A bond claim is far more effective than a lien claim in certain cases simply because the payment bond acts as a guarantee that the payment will be made for the work that’s completed on the site. When a lien bond is filed to protect the property from mechanic’s liens, you must follow the requirements of the Massachusetts Mechanic’s Lien statute in order to protect your rights under the lien bond.

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Ending Note

A lien on a property might just be the most important legal document your company ever files. Since different states have different laws regarding mechanics liens in the US, the aforementioned information should help you get a better understanding on mechanics lien in Massachusetts so you are able to make a more informed decision before you file a mechanics lien. To find out more about the different ways in which we help our clients by preparing, filing, perfecting and enforcing Massachusetts Mechanic’s Liens in Massachusetts, please feel free to contact Law Offices of Alan M. Cohen LLC,  at 508-620 6900. You can also email us at alanmcohen@collections-law.com.

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