PETITION TO RELEASE PROPERTY FROM MECHANIC’S LIEN
This guides will help explain how to remove a contractor's mechanic's lien against your property.
Time for the PetitionIn most situations, a contractor must sue on a mechanic’s lien within 90 days after recording it with the county recorder’s office, or the lien expires and is unenforceable. (Civ. Code, § 8460(a).) If the lien expires, the property owner may petition the court for a decree releasing the property from the lien. (Civ. Code, § 8480(a).) This requires three steps: (1) a notice to the contractor; (2) a petition at court; and (3) recording the judgment with the county recorder. Let me outline each of these steps.
The NoticeAt least ten days before filing the petition with the court, the property owner must give notice to the contractor demanding that the contractor execute and record a release of the lien. The lien must state the grounds for the demand and include the following information (Civ. Code, § 8102):
(1) the property owner’s name and address; (2) the direct contractor’s name and address; (3) any construction lender’s name and address; (4) a description of the site sufficient for identification, including the street address; and (5) The name, address, and relationship to the parties of the person giving the notice.
This notice must be delivered to the contractor in one of the following ways (Civ. Code, § 8106): (1) by personal delivery; (2) by registered or certified mail, express mail, or overnight delivery by an express service carrier; (3) by leaving a copy of the notice with a person “apparently in charge” at the contractor’s usual mailing address, or with a “competent member” of the contractor’s household at the contractor’s residence, and by mailing a copy to the contractor at the same address by first-class mail, postage prepaid. Service is deemed complete ten days after mailing.
The PetitionThe petition must include the following information (Civ. Code, § 8484): (1) the date the lien was recorded; (2) a certified copy of the claim of lien must be attached to the petition; (3) the county where the lien is recorded; (4) the book and page or series number of the place in the official records where the lien is recorded; (5) the legal description of the real property; (6) that the owner properly gave the notice demanding that the claimant execute and record a release of the lien and that the claimant is unable or unwilling to do so or cannot with reasonable diligence be found; (7) whether an action to enforce the lien is pending; (8) whether the owner of the property or interest in the property has filed for relief in bankruptcy or there is another restraint that prevents the claimant from commencing an action to enforce the lien.
The petition must be verified, that is, the property owner must sign it under penalty of perjury. (Civ. Code, § 8484.)
A hearing date must be obtained from the court. This should be no more than 30 days after the petition is filed unless good cause exists to set it further out. (Civ. Code, § 8486(a).)
The petition and the order setting the hearing date must be served on the contractor at least 15 days before the hearing. (Civ. Code, § 8486(b).) Service must be made in the same manner as a summons, or by certified or registered mail, postage prepaid, return receipt requested, addressed to the contractor at the contractor’s shown on the contract, preliminary notice, lien, or the Contractors State License Board. (Civ. Code, §§ 8486(b), 8108.) If served by mail, service is not complete until five days after the date of mailing. (Civ. Code, § 8486(c).)
The JudgmentIf the court grants judgment to the property owner, it must include the following (Civ. Code, § 8490(a).): (1) the date the lien was recorded; (2) the county where the lien was recorded; (3) the book and page or series number of the place in the official records where the claim of lien is recorded; and (4) the legal description of the real property.
After entry of judgment, a certified copy of the judgment must be recorded with the county recorder. This releases the property from the lien. (Civ. Code, § 8490(c).)