HOW TO FILE A CONNECTICUT MECHANICS LIEN Connecticut Mechanics Lien and Notice Requirement Overview
Mechanics liens are a crucial component of the construction payment ecosystem, and a powerful tool to make sure construction companies get paid what they deserve. However, the requirements surrounding mechanics liens and notices are complex and confusing. This guide sets out and simplifies the rules
Who Can File?Connecticut law requires the use of a two-part test in order to determine if a party has mechanics lien rights. The "physical enhancement test" requires that the services or materials must enhance the property physically, lay the groundwork for same, or be an essential part in the scheme of physical improvement. In addition, the labor or materials must have been provided in the construction, raising, removal, or repair of a building or its appurtenances, or in the improvement or subdivision of any plot of land. The value of rental equipment is allowed.
While you're thinking about who can file a mechanics lien...make sure you pay attention to who you put down as the actual claimant on the mechanics lien document itself. Claimants have been known to mis-identify themselves, or to not use their exact technical name, and this can cause big problems for the company's lien rights.
There is no specific requirement in Connecticut that a lien claimant must be licensed to file a valid mechanics lien in most cases. However, on residential projects, only registered contractors who comply with the Home Improvement Act or New Home Construction Contractors Act have lien rights with the exception that licensed professionals are not required to comply with the HIA or NHCCA when they are performing the work for which they are licensed.
PRELIMINARY NOTICE - NOTICE OF INTENT TO LIENConnecticut does not require any notice prior to performing work on the project. However, the general contractor is allowed to file an affidavit with the town clerk in the town in which the property is located. If the affidavit is properly filed within 15 days after commencement of work, subcontractors and suppliers are required to serve the original contractor (besides the property owner) with a copy of any notice of intent to file a lien.
All lien claimants who do not have a direct contractual relationship with the property owner must provide a Notice of Intent to Lien to the owner (and the original contractor if an affidavit was filed with the town clerk).
Original Contractor Affidavit
As mentioned above, an original contractor may file an affidavit with the town clerk In order for a general contractor's affidavit to take effect (as described in the first paragraph under Sending Notice to Owner), the original contractor's affidavit must be filed, within 15 days from the notice of commencement, with the town clerk of the town in which the subject property is located.
Such an affidavit must state the name under which such original contractor conducts business, the original contractor's business address, and describe the building, lot or plot of land.
Who Must Receive the Notice to Owner?
The Notice of Intent to Lien must be served on the owner, and if the original contractor properly filed the affidavit mentioned above, the Notice of Intent to Lien must also be served on the original contractor as well. If there is more than one owner and/or more than one original contractor, notice must be served on every owner and every original contractor.
Timing of Notice to Owner
The Notice of Intent to Lien must be filed within the 90-day period in which a Certificate of Lien may be filed (within 90 days of ceasing work) and prior to the filing of the Certificate of Lien.
Content of Notice to Owner
The notice must state that the claimant has furnished or commenced to furnish materials, or rendered or commenced to render services, and intends to claim a lien therefor on the building, lot or plot of land.
When is Notice Effective?
The preliminary notice is considered delivered when delivered in person. If sent through the mail, it is considered delivered when received. If sent through the mail and refused, the notice is considered delivered after publication in accordance with the Connecticut General Statutes 1-2.
FILING A MECHANICS LIENContents of Connecticut Mechanics Lien
The lien must describe the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials. It must also state that the amount claimed is justly due, as nearly as the same can be ascertained, and it must be subscribed and sworn to by the claimant.
Deadline to File
In order to be valid, a Connecticut mechanics lien must be recorded within 90 days of the last day on which the lien claimant performed services or furnished materials. Be careful when selecting your last furnishing date. A recent Connecticut decision in Constr. Ken-Nection Inc v. Cipriano leaves open the issue of whether work performed after a month and a half delay on the bulk of a project's work should be excluded as "substantial" work on the project.
No mechanics lien may attach to the property in an amount greater than the amount the owner agreed to pay for the building and its appurtenances. Indirect or consequential damages are not allowed in lien claims in Connecticut. Attorney fees may be awarded in a successful foreclosure action.
Deadline to Enforce Lien
An action to enforce a mechanics lien in Connecticut must be initiated no later than one year from the date on which the lien was recorded. Failure to initiate a foreclosure action by this deadline will result in the lien being extinguished.
A mechanics lien in Connecticut requires a description of the premises. A description of the property is sufficient if it describes the property to be liened such that it can be reasonably identified. A street address has been held sufficient for these descriptive purposes.
Connecticut law requires that the lien be attested to under oath and must be notarized to be valid. The "under oath" requirement is important in Connecticut, as courts have repeatedly indicated that a simple notarial acknowledgment will not do. The lien claim must actually state that the statement is "under oath" and the notary must perform an oath "ceremony" when making the acknowledgement.
In the past, a Connecticut court has invalidated a mechanics lien because it was signed by a claimant's attorney and not the claimant himself. The Connecticut mechanics lien, therefore, must be signed by the lien claimant and the lien claimant only.
A mechanics lien may be filed against an individual condominium just as against every other property. If a claim is to be filed against a condominium project as a whole such that it is to attach to each unit in a condominium development, each individual owner must be served.
Notice of RecordationConnecticut requires that, no later than 30 days after the Certificate of Lien is filed with the town clerk, a true and attested copy of the certificate must be served on the owner of the property. Service of the notice, in this case, is defined as follows: "if the owner or original contractor resides in the same town" as the property, service may be "by any indifferent person, state marshal or other proper officer, by leaving with such owner or original contractor or at such owner's or the original contractor's usual place of abode."
If the owner or original contractor does not reside in the same town as the property, the indifferent person, state marshal or other proper officer may effect service "by mailing a true and attested copy of the notice by registered or certified mail to the owner or original contractor at the place where such owner or the original contractor resides. If such copy is returned unclaimed, notice to such owner or original contractor shall be given by publication."
CONCLUSIONA mechanics lien can be a powerful tool to get paid on construction projects. But, the efficacy of the tool is dependent on the lien being valid. Following the necessary notice requirements and procedures from the beginning of the project, and following the lien filing rules in order to make sure the lien is valid greatly increase a lien's ability to result in payment.
A potential lien claimant should make sure to give careful attention to the requirements if filing themselves, utilize software products to manage lien rights as an intermediate step, or obtain assistance from attorneys if they need legal guidance or assistance.