I don’t recommend that contractors file their own mechanic’s liens without the aid of an attorney. Every client and/or potential client that has ever come to me asking that I foreclose a mechanic’s lien that they filed on their own had some fatal defect. The reason for that is the arguably conflicting laws in the statutes and in the court decisions interpreting those laws.
A prime example of something that is not readily apparent by reading the mechanic’s lien laws is the notice and service requirements. According to our courts, “[r]ead together, [Sections] 49-34 and 49-35 [of the Connecticut General Statutes] require the [contractor filing the lien] to serve a copy of the certificate upon each owner of the property within 90 days after he ceased performing services or furnishing materials.” Steeltech Bldg. Prod., Inc. v. Viola, 2000 WL 726367, at *2 (Conn. Super. Ct. May 16, 2000). Of course, one may not reach that same conclusion reading [Sections] 49-34 and 49-35 on their own. According to Connecticut General Statutes § 49-34, “[a] mechanic’s lien is not valid unless the person performing the services or furnishing the materials [records a certificate of mechanic’s lien in the land records] within ninety days after he has ceased to do so…” However, Section 49-34 also states that an owner has to be served with the certificate “not later than thirty days after” recording. Thus, one may assume that, if you have ninety (90) days to record the certificate of mechanic’s lien, and thirty (30) days after recording to serve the certificate of mechanic’s lien upon the owner, then you should have one hundred twenty (120) days to serve the mechanic’s lien, but that is incorrect based upon the case cited above.
The potential confusion regarding the notice and service requirements stems from the fact that we have one statute that requires “notice of intent” to claim a lien, and a second statute that requires notice after recording, but the courts have said that both notices may be given simultaneously. In “[b]oth notice requirements may be satisfied in one document. Although the term ‘intends’ usually implies a future act, this court has stated that ‘(i)f the basic purpose of the notice of intent to claim a lien is borne in mind, it becomes apparent that there is no occasion for reading into Section 49-35 an implied provision that as (a) matter of law the notice must be served on the owner prior to the filing for record of the certificate of lien under [Section] 49-34.’ Accordingly, a subcontractor may comply simultaneously with both notice requirements. Two separate notices are not necessary to accomplish the purpose of the statutes.” H & S Torrington Assocs. v. Lutz Eng’g Co., 185 Conn. 549, 555 (1981). Thus, you have one statute stating that you have to give “notice of intent” and another stating that you have to give notice after recording, but the court decisions say that you can give once notice after recording that somehow satisfies both requirements.
Unfortunately, there are more examples of potential mechanic’s lien pitfalls than I can put in one post. Such issues are not limited to Connecticut. As a way of explaining the less than satisfactory results, one of the reformers of the Massachusetts mechanic’s lien laws said that they did the best they could in light of the competing interests. Obviously, owners, general contractors and subcontractors all have different interests when it comes to mechanic’s liens, and all three groups have lobbyists that will promote their client’s point of view. As a result, conflicts in the laws are easy to create, and very difficult to eliminate.
In light of the foregoing, it is understandable why the average person, who isn’t trained as a lawyer, may not successfully navigate this minefield.
Nonetheless, for those that are brave enough to try, the State of Connecticut Judicial Branch Libraries have posted general information regarding Connecticut’s mechanic’s lien laws, which can be found by clicking on the following link:
Connecticut Judicial Branch Law Libraries
Notwithstanding the foregoing, if you should have any questions or require assistance with a mechanic’s lien, please give me a call at (203) 640-8825.
Scott Orenstein