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Mechanic's Lien (Construction Lien)

The statutory lien a contractor, subcontractor, supplier or labourer may record against a property for unpaid work or materials - the preliminary notices and filing deadlines that make or break it, why an owner who paid the general contractor can still face a subcontractor's lien, and how the lien is enforced or released.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

Every state gives those who improve real property a security interest in it for the value of their work. A contractor, subcontractor, material supplier, equipment lessor, design professional or labourer who is not paid may record a mechanic's lien (called a construction lien or materialman's lien in some states) against the property, and may then foreclose it - sell the property through the court and be paid from the proceeds - in the same way a mortgage lender forecloses. The lien attaches to the land and building, not to the owner personally, and it follows the property to a buyer, which is why a title search shortly after construction is the moment liens surface.

The lien exists only if the statute is followed exactly. Most states require a subcontractor or supplier who has no contract with the owner to serve a preliminary notice on the owner (and often the lender and general contractor) within a short period after first furnishing work, so the owner knows who is on the job and can withhold payment or demand lien waivers; without it the lien is lost. The lien itself must be recorded within a period that runs from the last work or from completion of the project, must be served on the owner, and must be foreclosed by suit within a further period or it expires. The statute also sets whether the lien is limited to what the owner still owes the general contractor or extends to the full unpaid amount, which decides whether an owner who paid the contractor in full can nonetheless be liened by an unpaid subcontractor. In many states the answer is yes.

Owners manage the risk with lien waivers - signed releases from each contractor, subcontractor and supplier exchanged for each progress payment, in statutory forms in the states that prescribe them - and with joint checks and a notice of completion that shortens the filing window. A lien recorded without a valid claim can be challenged in a summary proceeding, and an owner may release the property by posting a bond in the lien's amount. Public property cannot be liened; on public projects the same protection is provided by a payment bond instead.

Where this comes from

Mechanic's liens are wholly statutory and vary by state in every particular - who may lien, the notice and recording deadlines, the lien's amount, waiver forms and the enforcement period; California Civil Code §§ 8000-9566 (including the statutory waiver forms at §§ 8132-8138) and Texas Property Code ch. 53 are two comprehensive models. On federal public works the substitute is the payment bond under the Miller Act, 40 U.S.C. §§ 3131-3134, and on state and local public works the state's "Little Miller Act". The constitutional requirement of some pre-recording procedure recognised in Connecticut v. Doehr, 501 U.S. 1 (1991), has been applied to lien statutes by some state courts. No notice, recording or enforcement period is stated here.

When people hire a lawyer for this

For a contractor or supplier the value of a lawyer is in the calendar: a preliminary notice a day late or a lien recorded in the wrong form is worth nothing, and a claimant should get advice as soon as an invoice goes unpaid rather than when the project ends. For an owner, a recorded lien from a subcontractor never heard of is the moment to see a lawyer, because the responses - demanding proof, tendering a bond, forcing the claimant to sue or release, or pursuing the general contractor - each have their own deadline, and paying twice is the outcome the statute allows if nothing is done.

Find a lawyer for this in your state

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

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