Note: We also have a more recent article on frivolous liens published in May, 2017, “Frivolous Mechanics Liens: Intentionally Fraudulent vs. Honest Mistakes“
This blog traditionally focuses on how to file mechanics lien claims, largely analyzing the mechanics lien process from the lien claimant’s perspective. However, we’re going to take a brief break to turn the tables and look at the opposite perspective. Mostly because two great resources has been published in the past few weeks which guide property owners (or prime contractors, or others) in understanding how to identify a frivolous lien, and what to do about it.
What is a Frivolous Mechanics Lien?
Let’s address what constitutes a frivolous mechanics lien before getting into the resources available to help you have the lien removed. While every state has its own definition, a frivolous mechanics lien is typically defined as a lien filed without any reasonable cause, or one which has no reasonable argument for its validity.
An example of a clear-cut frivolous lien in any jurisdiction is one that is filed late. If your state requires all mechanics lien be recorded within 90 days of last furnishing labor or materials to the project, and you file your lien 95 days after this date, you’re lien is invalid per se, and there’s no reasonable basis for its filing.
This can get a bit complex if there is some debate as to what exactly constitutes the last furnishing date, and that’s because most states do not consider a mechanics lien frivolous if there is something in dispute. If the last furnishing date is in dispute, if the workmanship is in dispute, if the agency relationship between the property owner and a tenant is in dispute, etc. etc. Courts are reluctant to remove mechanics liens in the presence of such arguments, because the laws allow the claimant its day in court to prove its case, and prove that its lien was reasonable.
Resource To Remove Mechanics Lien in Louisiana
The first resource I’ll write about was published by our good friend Seth Smiley (@sethsmiley) at the Construction Law Monitor. Seth’s “Construction Lien Removal Suit in Louisiana” discusses the statute within the state’s Private Works Act which allows interested parties to file a mandamus action to demand the removal of a mechanics lien.
Seth even links to a Petition for Mandamus example that his law firm filed to have a mechanics lien removed in the state, which is hosted on JDSupra. This is a very good resource not only for property owners and interested parties, but for attorneys confronted with a potential frivolous lien claim.
In addition to this Construction Law Monitor blog post, I also published a Legal Guide on this topic in the past on Avvo.com, which may be useful to someone interested in removing a mechanics lien in Louisiana. The Legal Guide is titled: Disputing a Construction / Mechanics Lien in Louisiana.
Resource to Remove Mechanics Lien in California
Last month, we published an article about the mechanics lien resources made available by the Sacramento Public Law Library in “Five Star Resource for Filing A California Mechanics Lien from Sacramento Public Law Library.” The librarian over there tweeted me about the post, highlighting that they just published a new owners guide on removing liens. At first, I didn’t think to publish this on the blog because we so often focus on the mechanics lien claimant. However, it’s such a good resource, and it’s in line with the other lien removal resources recently published, that I changed my mind.
Plus, even though this resource is great for someone who wants to remove a mechanics lien, it’s also good information for the mechanics lien claimant. Especially so in California, because unlike other states, California liens expire very quickly (90 days), and lien claimants must file a cancellation to remove the lien after they expire. If they don’t, they may be confronted with one of these lien removal actions.
In any event, the “Lien Removal” resources published by the SAC Law Library not only give readers an understanding of the applicable rules, but they also have downloadable templates available. It’s extremely easy for someone to read this, put together their documentation, and file for an uncontested lien release. Contested lien releases may turn into a more complex situation that requires a lawyer (see: Wolfe Law Group), but a lot of these expired liens can be removed by petition without much opposition. The resource on SAC’s website is available here: Petitioning For Release of Mechanics’ Lien.