Mechanic liens is an area of law practiced by few attorneys. It is a complicated area with numerous technicalities, which the failure to follow can render a lien void. With that in mind, the blog that follows should be read as an overview to provide subcontractors with some of the basics. It is strongly suggested that you contact an attorney who does mechanic lien litigation any time you have a lien issue.
A subcontractor is someone who contracts with the general contractor (also known as the original contractor) or with a subcontractor to do a portion of the work. Thus, someone who contracts with a subcontractor is also a subcontractor.
A general contractor contracts with the owner or the owner’s agent.
It is important to note that whether a contractor is a subcontractor or a general contractor depends on whom the contractor contracts with, it does not depend on the work or materials supplied.
In order for a subcontractor to have a lien, there are four requirements.
The first requirement is a valid contract between the owner and the general contractor. If there is no contract between the owner and the general, then a subcontractor has no lien rights.
The second requirement is a contract between the subcontractor and the general contractor. The contract between the subcontractor and general may be in writing but it does not have to be, it may be oral.
The third requirement is that the subcontractor provide lienable material or services. Lienable material or services are broadly interpreted and include almost all material or services provided in connection with the construction project.
The fourth requirement is that the subcontractor fulfill its contractual duties or have a valid excuse for non-performance.
If a subcontractor meets each of the four requirements, it then has a right to acquire a lien. However, the subcontractor must then preserve its lien before it can enforce its lien.
Next blog – preserving the lien.