Certain states allow lien claimants to include more than the amount owed in a mechanics lien claim. This might include associated costs (such as filing fees or interest) or, most commonly, attorneys fees. Other states don’t permit you to include additional costs in the claim of lien itself, but will award attorneys fees to the lien claimant upon foreclosure. These protections can make a huge difference to the lien claimant because attorneys fees and other costs associated with filing a lien and potentially a lawsuit can add up quickly! It’s not uncommon for these fees to equal more than the amount the claimant is owed – eek.
However, including costs that are not permitted in your state might invalidate your mechanics lien, so complete your claim with care! To determine what costs are permitted by your state’s lien statute, find your state below.
What Exactly Are These “Costs” and “Fees”?
Costs is generally meant to be “court costs” incurred in an enforcement action and “professional fees” or “attorneys fees” refers to the cost of an attorney. This means that – in most cases – the cost of filing a mechanics lien through a software platform or other lien service provider (like zlien) may not be included in the lien claim amount.
States Where You Can Include More Than the Unpaid Balance
In the following states, certain amounts other than the unpaid portion of the contract may be included in a claim of lien. If attorneys fees are permitted, the statute is referring to the cost of having an attorney file the lien for you. These amounts vary from one state to the next so be sure to read carefully.
Note: In addition to allowing the inclusion of certain costs, some of these states award attorneys fees to the claimant upon foreclosure. See the next section for more information.
- Arkansas – Allows for the recovery of debt, interest, costs, and attorneys fees to be included in a claim of lien. However, these are awarded by the court upon successful enforcement regardless of whether they were included in the lien amount, so it may be advisable not to include them in the claim of lien.
- Colorado – Interest is the only extraneous amount that may be included in the lien, however the court may award the claimant attorneys fees and certain costs upon successful enforcement (more here)
- Delaware – If there is an agreement between the parties that the attorneys fees can be recovered, they may be allowed.
- Florida – Expressly permits the inclusion of “unpaid finance charges,” but not “extraneous amounts” or attorneys fees. However, the court may award the claimant attorneys fees and certain costs upon successful enforcement (more here).
- Georgia – Explicitly allows the inclusion of “interest on the principal amount due in accordance with Code Section 7-4-2 or 7-4-16” and the inclusion of “the amount due and owing…under the terms of its express or implied contract, subcontractor, or purchase order…” Attorneys fees may be recovered upon successful enforcement of the lien (more here).
- Illinois – Professional fees, interest, and attorney’s fees are sometimes allowable (more here).
- Indiana – The lien amount is not restricted to labor and materials. Upon successful enforcement, interest is generally awarded and attorneys fees are mandatorily awarded.
States Where You Cannot Include Additional Costs BUT They May Be Awarded Upon Foreclosure
Sometimes filing a mechanics lien is not enough to get you paid, and you have to take the next step in the mechanics lien process: file a lawsuit and go to court. In the following states, attorneys fees and/or other costs cannot be included in the claim of lien but may be awarded to the prevailing party upon foreclosure.
This makes sense because hiring an attorney to take your lien claim to court results in attorneys fees, but since your claim of lien was filed before the lawsuit began and likely before the attorney was hired, it is impossible to include those fees in the claim.
A majority of states fall into this category.
- New York
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
States in Which The Statute Is Unclear
The following states’ statutes do not explicitly mention attorneys fees in the context of lien enforcement, but in some cases they still may be recoverable. It is best to consult with an attorney familiar with lien law in your state to determine the best course of action.
- Alabama – (more here)
- West Virginia
For more details on whether or not you can include attorneys fees in a mechanics lien, follow this link and select your state from the drop-down menu. View the question “Can I Include attorneys Fees, Collection Costs, or Other Amounts in the Lien Total?” under Mechanics Lien FAQs or visit your state’s Lien Statute.