Procedural Steps for Enforcing Mechanic's Liens on Private Works of Improvement
I. PRELIMINARY NOTICE (Civ. Code §§ 8034, 8200)
(A.) WHEN GIVEN:
Must be given within 20 days after the claimant first furnishes labor, services, equipment or material to the job site. (Civ. Code § 8204(a).) Claimant may also give notice at any time during the job, in which case the claimant will be entitled to file a lien or stop notice for labor, services, equipment or materials furnished 20 days prior to the notice and at any time after the notice. (Civ. Code § 8204(a).)
(B.) BY WHOM GIVEN:
All persons claiming a lien or stop notice except the Direct Contractor and wage claimants (persons performing labor for wages) must give the notice. (Civ. Code § 8200(a) and (e).)
(C.) TO WHOM GIVEN:
Everyone, except a contractor dealing directly with the Owner or Reputed Owner, must give the notice to:
(1) Owner or Reputed Owner;
(2) Direct Contractor or Reputed Direct Contractor; and
(3) Construction Lender or Reputed Construction Lender (Civ. Code § 8200(a).)
A claimant with a direct contractual relationship with the Owner or Reputed Owner must give the notice to the construction lender or reputed construction lender, if any. (CC § 8200(e).)
(D.) WHERE GIVEN:
The notice may be served at one of the following locations of the person to be served if that person resides in California:
(2) Place of Business;
(3) Address shown on Direct Contract;
(4) Address shown on Building Permit; or
(5) Address shown on Construction Deed of Trust. (Civ. Code § 8108(a).)
NOTE: Statute provides that the contract between the Owner and Direct Contractor shall provide space for the name and address of the Owner and Construction Lender and that the Direct Contractor shall make that information available to any person seeking to serve a preliminary notice. (Civ. Code §§ 8170, 8208.)
(E.) HOW GIVEN:
(1) Personal Service;
(2) Registered Mail; or
(3) Certified Mail.
NOTE: When the notice is sent by registered or certified mail, service is complete when mailed. Therefore, this method of service is recommended. (Civ. Code § 8116.)
(F.) Contents of Preliminary Notice:
(1) The name and address of the Owner or Reputed Owner;
(2) The name and address of the Direct Contractor;
(3) The name and address of the construction lender, if any;
(4) A description of the site sufficient for identification, including the street address of the site, if any. If a sufficient legal description of the site is given, the effectiveness of the notice is not affected by the fact that the street address is erroneous or is omitted;
(5) The name, address, and relationship to the parties of the person giving the notice;
(6) A general description of the labor, services, equipment or materials furnished;
(7) the name of the person to or for whom the work is provided;
(8) An estimate of the total price of the labor, services, equipment or materials provided and to be provided;
(9) The following notice in boldface type:
NOTICE TO PROPERTY OWNER
EVEN THOUGH YOU HAVE PAID YOUR CONTRACTOR IN FULL, if the person or firm that has given you this notice is not paid in full for labor, service, equipment, or material provided or to be provided to your construction project, a lien may be placed on your property. Foreclosure of the lien may lead to loss of all or part of your property. You may wish to protect yourself against this by (1) requiring your contractor to provide a signed release by the person or firm that has given you this notice before making payment to your contractor, or (2) any other method that is appropriate under the circumstances.
This notice is required by law to be served by the undersigned as a statement of your legal rights. This notice is not intended to reflect upon the financial condition of the contractor or the person employed by you on the construction project.
If you record a notice of cessation or completion of your construction project, you must within 10 days after recording, send a copy of the notice of completion to your contractor and the person or firm that has given you this notice. The notice must be sent by registered or certified mail. Failure to send the notice will extend the deadline to record a claim of lien. You are not required to send the notice if you are a residential homeowner of a dwelling containing four or fewer units.
(10) If the notice is given by a subcontractor who, under a collective bargaining agreement is required to pay supplemental fringe benefits into an express trust fund, then the notice must identify and give the address of the trust fund. (Civ. Code §§ 8202(b), 8024.)
NOTE: The statute provides that, if an invoice contains the required information, it may be sent as a notice under the statute. (Civ. Code §§ 8102, 8202.) The author has never seen an invoice that contained all of the above information.
NOTE: An architect, registered engineer or licensed land surveyor who has furnished design services for the work of improvement may give his notice within 20 days after the work of improvement has commenced. (Civ. Code §§ 8102, 8202, 8204.)
(G.) HOW MANY GIVEN:
Only one notice need be given for each job on which the claimant has furnished labor, services, equipment or materials, unless he contracts with more than one subcontractor. In that case he must give a notice for each subcontractor. (Civ. Code § 8206.)
(H.) PROOF OF SERVICE OF PRELIMINARY NOTICE (Civ. Code § 8118):
(1) If served by mail, then by proof of service declaration accompanied by the return receipt of certified or registered mail or a photocopy of the record of delivery and receipt maintained by the post office showing, the date of delivery and to whom delivered or, in the event of non¬delivery, the return envelope itself. (Civ. Code § 8118(b).)
(2) If served personally, then by proof of service declaration.
(3) The "proof of service declaration" is an affidavit of the person making service showing:
(a) Type or description of the notice given;
(b) Date, place and manner of notice, and facts showing that notice was given in the manner required by statute;
(c) The name and address of the person to which notice was given, and, if appropriate, the title or capacity in which the person was given notice. (Civ. Code § 8118(a).)
(I.) DISCIPLINARY ACTION:
If the contract of any subcontractor on a particular work of improvement provides for payment to the subcontractor of more than four hundred dollars ($400), the failure of that subcontractor to give Preliminary Notice constitutes grounds for disciplinary action. (Civ. Code § 8216.) Failure of the subcontractor to include the name and address of trust funds he contributes to that, results in the filing of a lien or stop notice also constitutes grounds for disciplinary action if the amount due the trust fund is not paid. (Civ. Code § 8216.) Finally, if a contractor or subcontractor is delinquent in paying fringe benefits, be must so notify the construction lender or reputed construction lender, setting forth the name of the Owner and contractor. a description of the job site sufficient for identification. The identity and address of the trust fund the total straight time and overtime hours that are delinquent on each job and the amount then past due and owing. If the construction lender is not so notified within five days of the date payment was due, this will also constitute grounds for disciplinary action. (Civ. Code § 8104.)
(J.) Recording Preliminary Notice:
A copy of the Preliminary Notice may be filed with the county recorder. There is a fee for filing that varies from county to county. If the Preliminary Notice is filed with the county recorder, then the county recorder will mail to the claimant a notification that a notice of completion or a notice of cessation has been recorded. Failure of the recorder to comply with this requirement shall not affect the time for filing a lien.
II. RECORDING THE MECHANIC'S LIEN
(A.) A Direct Contractor cannot record a lien until he completes his contract. (Civ. Code § 8412.) All others cannot record their liens until they have ceased furnishing labor, services, equipment or materials. (Civ. Code § 8414.)
(B.) Notice of Completion:
Where a valid notice of completion has been recorded, the Direct Contractor then has 60 days to record. All others have 30 days. (Civ. Code §§ 8412, 8414.)
(C.) No Notice of Completion, But Actual Completion:
All persons have 90 days from actual completion to record. (Civ. Code §§ 8412, 8414.)
(D.) If there is no notice of completion and no actual completion of the job, the following are deemed equivalents of completion and all persons have 90 days from the following events to record their liens:
(1) Occupation and use of the work of improvement by the Owner or his agent accompanied by a cessation of labor. (Civ. Code §§ 8180(a)(2); 9200.)
(2) Acceptance of the work of improvement by the Owner or his agent. (Civ. Code §§ 8180(a)(2); 9200.)
(3) A cessation of labor for a continuous period of 60 days. (Civ. Code §§ 8180(a)(3); 9200.)
(E.) Notice of Cessation of Labor:
If the Owner records a notice of cessation of labor (after a 30-day cessation) then this is the same as a notice of completion and the prime contractor has 60 days, and all others have 30 days, to record their liens. (Civ. Code §§ 8180, 8188, 8412, 8414, 9200, 9202.)
(F.) Where Recorded:
In the office of the county recorder where the real property is located.
(G.) If the work of improvement is made pursuant to two or more original contracts, each covering a particular portion of the work of improvement, then the Owner may record a separate notice of completion within 10 days after the completion of each separate contract. The lien period is then the same as set forth above. (Civ. Code § 8186.)
(H.) Contents of Mechanic's Lien (Civ. Code § 8416):
(1) A statement of claimant's demand, after deducting, all just credits and offsets;
(2) Name of Owner or Reputed Owner, if known;
(3) A general statement of the kind of labor, services, equipment or materials furnished;
(4) The name of the person by whom the claimant was employed or to whom the claimant furnished the labor, services, equipment, or materials;
(5) A description of the job site sufficient for identification;
(6) A proof of service affidavit completed and signed by the person serving a copy of the claim of mechanics lien pursuant to subdivision (c). The affidavit shall show the date, place, and manner of service, and facts showing that the service was made in accordance with this section. The affidavit shall show the name and address of the owner or reputed owner upon whom the copy of the claim of mechanics lien was served pursuant to paragraphs (1) or (2) of subdivision (c), and the title or capacity in which the person or entity was served;
(7) The following statement, printed in at least 10-point boldface type. The letters of the last sentence shall be printed in uppercase type, excepting the Internet Web site address of the Contractors' State License Board, which shall be printed in lowercase type:
NOTICE OF MECHANIC'S LIEN ATTENTION!
Upon the recording of the enclosed MECHANICS LIEN with the county recorder's office of the county where the property is located, your property is subject to the filing of a legal action seeking a court-ordered foreclosure sale of the real property on which the lien has been recorded. That legal action must be filed with the court no later than 90 days after the date the mechanics lien is recorded.
The party identified in the enclosed mechanics lien may have provided labor or materials for improvements to your property and may not have been paid for these items. You are receiving this notice because it is a required step in filing a mechanics lien foreclosure action against your property. The foreclosure action will seek a sale of your property in order to pay for unpaid labor, materials, or improvements provided to your property. This may affect your ability to borrow against, refinance, or sell the property until the mechanics lien is released.
BECAUSE THE LIEN AFFECTS YOUR PROPERTY, YOU MAY WISH TO SPEAK WITH YOUR CONTRACTOR IMMEDIATELY, OR CONTACT AN ATTORNEY, OR FOR MORE INFORMATION ON MECHANICS LIENS GO TO THE CONTRACTORS' STATE LICENSE BOARD WEB SITE AT www.cslb.ca.gov.”
NOTE: The lien must be signed and verified by the claimant or his agent. It need not be acknowledged.
III. FILE SUIT
(A.) Must be commenced within 90 days after the lien is recorded in the county where the real property is located. (Civ. Code § 8460.) The time to sue may be extended for up to one year from completion, provided a proper extension of time to foreclose is recorded within 90 days of recording the lien. (Civ. Code § 8460.)
(B.) The suit should name as defendants all parties who have any interest in the property. Suggested sources of names: lot book report, mechanic's lien guaranty or preliminary title report.
(C.) The court may exercise discretionary dismissal if the suit is not brought to trial within two years. (Civ. Code § 8462.)
(D.) After the filing of the complaint in the proper court to foreclose on the mechanic's lien, the plaintiff shall record in the office of the county recorder of the county, or of the several counties in which the property is situated, a notice of the pendency of the proceedings, on or before 20 days after the filing of the mechanic's lien foreclosure action. (Civ. Code § 8461.)
Note: Only from the time of recording that notice shall a purchaser or encumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of the action, and in that event only of its pendency against parties designated by their real names. (Civ. Code § 8461.)
(E.) Plaintiff can get an attachment in a lien foreclosure action. (Civ. Code § 8468.)