"Pay me or I'll slap a lien on your property!" are 10 words you
don't want to hear.
They're often words of an angry, frustrated contractor to a defensive homeowner
over a dispute about workmanship, money or both in remodeling or repair projects.
Yet these dreaded words don't always come from a contractor. They can be uttered
by a company or person who can demonstrate that labor and-or material to improve
or repair your home were supplied, and they have not received payment per the
terms of the contract.
The mechanics' lien law ensures that those who work on your home get paid
for their services. If not, they have legal recourse that ties up your home
and property until they are paid or the lien is resolved.
Any homeowner who employs outside labor and material for the improvement or
repair of his home is vulnerable to this law. Because this law is based on state
statutes and civil codes, you should consult a local attorney for specifics
in your area.
Your understanding of this law could prevent you from paying twice for any
phase of your project, and safeguard you from losing your house to a disgruntled
creditor in a nasty foreclosure sale because a material bill or service bill
was not paid.
Though general contractors are most widely associated with the threat of a
lien, the list of prospective lien claimants can include any material suppliers,
such as those furnishing concrete, lumber, roofing; subcontractors such as electricians
and plumbers; and even laborers that your contractor employs to clean up your
job.
Even if you pay your contractor as agreed, you can still be hit with a mechanics'
lien if your contractor fails to pay a material supplier, subcontractor or an
individual who furnished labor for your project. The same holds true if a subcontractor
doesn't pay his material supplier. For example, you hire Acme Construction Co.
to build an addition onto your home. Acme hires ABC Roofing to roof the addition.
ABC buys the roofing material from XYZ Roofing Supply. You pay Acme, Acme pays
ABC, but if ABC doesn't pay XYZ, you could end up paying for the roofing material
twice.
Though there are means to prevent a mechanics' lien, your best protection
has more to do with your contractor's ability, business experience and integrity—and
your ability to get along with him—than any other aspect. Your focus should
be on finding a good contractor.
Since a mechanics' lien can happen even with the best of contractors, consider
the following options for protection.
- Make a list: It helps to know who is working your job so that you can ensure
that they get paid. Subcontractors and material suppliers are required by
law to supply the property owner with a preliminary 20-day notice—within
20 days from the time that they become involved with a project. Since many
fail to do so, insist that your contractor supply you with a list of subs
and suppliers.
- Pay as you go: One of the biggest mistakes is to pay huge sums of money
in advance of work being performed. A system that offers the consumer better
protection—more leverage and time to hear from a sub or supplier who
didn't get paid—is to make progress payments as a percentage of completion
of the work.
- Lien releases are a must: There are two types—conditional and unconditional
(or full releases). You should not make a payment to your general contractor
unless you receive a conditional lien release in exchange. The conditional
release will become unconditional when the check clears the bank. You can
insist on an unconditional release with each payment if you are willing to
provide the contractor with a certified check or a cashier's check. Before
making final payment, require your general contractor to furnish unconditional
lien releases from all subs and material suppliers.
- Issue joint checks: You can issue joint checks to the general contractor
and a subcontractor or material supplier. This option is not particularly
popular with either the homeowner or contractor due to the need for additional
management on both sides. It also can be disadvantageous to the owner and
contractor in that it diminishes the contractor's monetary control over subs
and suppliers. An alternative is to issue joint checks for services that put
you at the greatest financial risk—big-dollar items such as lumber,
kitchen cabinets, roofing (when doing the entire house) or windows (when doing
wholehouse window replacement). Keep in mind that joint checks are not issued
in lieu of obtaining lien releases.
- Third-party management: Many banks, escrow companies, construction management
firms and consulting architects are set up to provide detailed project accounting
and pay construction draws as an agent for the owner. This option generally
is reserved for larger-than-average projects and comes with a hefty fee. Be
prepared to drop an additional 5 percent to 10 percent of the total contract
value for this service.
- Payment and performance bond: You can require your contractor to supply
you with a payment and performance bond that provides that the bonding company
will either complete the project or pay damages up to the amount of the bond.
In short, it's an insurance policy that you pay for as part of the contract;
it usually tacks on about 1 percent to 5 percent of the contract sum. One
caveat: not all contractors are bondable due to longevity in business or financial
position. Or, the amount for which the contractor can be bonded is only a
fraction of the value of the job. Don't confuse a payment and performance
bond with a surety bond, which is required of most contractors—with
an average value of $5,000 to $10,000.
- Mechanics' lien release bond: After a mechanics' lien is recorded, a property
owner, general contractor or subcontractor may record a mechanics' lien release
bond, which frees the property of the mechanics' lien. Once such a bond is
recorded, the real property described in the bond is released from the mechanics'
lien and, of more importance, any action to foreclose on the lien is realeased
as well.
The bond acts as a substitute for your home as the object to which the mechanics'
lien attaches. In other words, once you have a mechanics' lien release bond,
the person chasing you for the money must now chase the bonding company.
The mechanics' lien law is complex. Honing design plans and picking appliances,
cabinets and flooring are fun and necessary parts of planning a home-improvement
project. Choosing a good contractor and understanding the mechanics' lien law
are necessary steps in protecting your piece of the Great American Dream and
avoiding home improvement chaos.