Answer This Obvious Question: Is the Lien Improper? Part I: Technical Defects
Part I of this inquiry considers whether a lien is improper because of technical defects with the instrument. Here are some common technical mistakes: (i) Failing to adequately describe the property in the lien (i.e. filing without a legal property description); (ii) Failure to provide the proper required notices. Notice is required from the claimant in some circumstances, but not all; (iii) Failure to meet all of the statutory content requirements (does it describe the work? does it identify the owner?); and (iv) Failure to file the lien on time. In Louisiana, liens must be filed within 60 or 30 days from the project's substantial completion, depending on whether a notice of contract was filed prior to the start of work.
Answer This Obvious Question: Is the Lien Improper? Part II: Merit-Based Defects
The second category of improper liens is more complex because it is only marginally subjective. Merit-based defects refer to arguments against a mechanic's lien based on one party's position that the lien amount is not owed for any number of reasons (i.e. the other party breached the contract, there is a pay when paid clause and payment isn't due, etc.). Unlike the former category of defects, merit-based defects require a judge to make decisions regarding the merits of a claim. A judge will likely be reluctant to do this unless the claim is clearly excessive.
Demand Cancellation of Lien
If the lien is improper, La. R.S. 9:4833 requires that a written demand be sent requesting cancellation of the lien within 10 days from receipt of the demand. The demand must be sent by registered or certified mail, or hand-delivered. The written demand is a very important step in the challenge of a construction lien, as it is require prior to commencing litigation against the lien, and qualifies the challenging party to recover attorneys fees and costs in the event the claimant refuses to cancel the lien and the challenge wins in court.
File Suit to Demand Removal of the Lien
If 10 days after demand to the claimant the lien is not canceled, La. R.S. 9:4833 directs a challenging party to file suit against the lien claimant and the recorder of mortgages. The type of action allowed by A?9:4833 is a Mandamus Action pursuant to La. R.S. 44:119, which is a summary proceeding. This provides challenging parties a speedy resolution to property record abuses. A mandamus action can be heard on its merits just two days after service, and La. C.C.P. art 3782 mandates that it be heard no "more than 10 days after service."
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