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Andrea, Esq.
Andrea, Esq., Attorney
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We had a general contractor who hired a subcontractor. We

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We had a general contractor who hired a subcontractor. We paid the general contractor and had an agreement that he was going to fully pay the subcontractor. We got a call from the subcontractor stating that the wasn't fully paid from the subcontractor and that he will file a lien against us. We contacted the general contractor and he's not being responsive. How can we resolve this situation?
Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.
Hi,

Unfortunately, the law allows the subcontractor to place a lien against the property if he was not paid by the general contractor.

If the GC is being unresponsive, this is a very bad sign. If the lien is not actually holding anything up on your end (i.e., if you are not trying to sale the property), then you can simply continue writing and calling the GC to make him pay.

However, if the lien is encumbering the property in a way that injures your interests (i.e., hurts your credit report, keeps you from selling the property, etc), then the first thing to do is to make sure that the lien is valid.

If you as the homeowner didn't hire the contractor who liened your property directly, then that subcontractor or supplier must have first sent you a form called a Preliminary 20-day Notice letting you know their name and address, who hired them, and what work or materials they were furnishing. They must have either delivered it to you personally or had it delivered to you by CERTIFIED mail. Regular mail doesn't count. No preliminary 20-day notice means their lien is invalid, and you can demand that they release it.

If the Preliminary 20-day notice was sent too late, the lien is invalid. The Preliminary 20-day notice is supposed to be sent by the subcontractor or supplier within 20 days of first furnishing labor or materials on the project. The notice can be sent out late but it will then only cover labor or materials furnished 20 days immediately before the notice was sent, and the labor or materials furnished after that time. If the subcontractor's or supplier's labor or materials was fully furnished more than 20 days before the Notice was sent, then the lien is invalid and you can demand that they release it. Always ask the subcontractor or suppliers for copies of their invoices and time cards, and other information they have to prove their claim.

It's not enough for a contractor just to record the mechanic's lien. They must perfect the lien by filing a lawsuit in state court to foreclose the lien within 90 days (not 3 months but 90 days) of the recording date of the lien. If no lawsuit was timely filed, then the lien expires by operation of law and you can demand that they release it.

If the do file suit, then you have to bring in the GC (i.e., sue the GC) and request "indemnification", which means the GC is liable for any damages and for your legal fees.

If the lien is valid, but you want to avoid the suit, you can pay the sub and then make demands yourself to the GC. If the GC doesn't pay, then you have to sue the GC.

First things first, check to see that the sub followed the procedures above to perfect the lien. Then get the documentation from him to check to see if his claim is legitimate.

Please let me know if you need further information.
-ZDN
Zachary, Attorney
Category: Legal
Satisfied Customers: 3814
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 14 other Legal Specialists are ready to help you
Customer: replied 1 year ago.


I have a follow up question for you ZDN. After investigation, we found out that the lien was not valid - it was recorded too late, and that the subcontractor didn't perfect it by foreclosing the lien. I guess we could fight it out by saying it was invalid but out of goodwill, since the work was done, we decided to pay the subcontractor and get the money back from the general contractor. My question is, what do we have to do to make sure the subcontractor releases the lien in exchange of the payment? We have the Unconditional Waiver and Release on Final Payment form from the state website. Is there anything else we need to do to lift the lien? Do we have to go to the recorder's office to lift the lien? Or can we make the subcontractor do it?

Expert:  Zachary replied 1 year ago.
Hi,

Thanks for following up with me. You are on the exact right path. All that is required is that the signed release is filed with the recorder's office. The recorder will then make sure that the records reflect that there is no further lien on your property.

I would recommend filing the release with the recorder yourself to ensure it gets done, rather than relying on the subcontractor.

-ZDN
Customer: replied 1 year ago.


Thank you ZDN. Also, the first set of information you gave was very helpful - the basic rules of valid liens and etc. - do you know where it comes from? Since that's the law, I'm assuming they're written somewhere....It'd be helpful for me to know where it's coming from. And if you could let me know any resources from which I could find such info, it'd be further appreciated. thank you!

Expert:  Zachary replied 1 year ago.
Hi,

My answer was a summation of various statutory provisions. The best way to reference them is through the following website: http://www.cslb.ca.gov/GeneralInformation/Library/GuidesAndPamphlets.asp

If you scroll down, you will find a pamphlet on mechanic's liens with more information.

Best Regards,
ZDN
Zachary, Attorney
Category: Legal
Satisfied Customers: 3814
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 14 other Legal Specialists are ready to help you
Customer: replied 1 year ago.


HI ZDNLaw, according to the webiste we could get two types of releases - conditional and unconditional. Are both necessary to remove a lien or would an unconditional release suffice?

Customer: replied 1 year ago.
Relist: Answer came too late.
Expert:  Andrea, Esq. replied 1 year ago.

Hi, Welcome to JustAnswer, My name isXXXXX am a Licensed, Practicing Attorney and would be glad to help,

 

Please do not forget to rate my service to you before you leave the site

 

 

In Answer to your question, you must require the subcontractor to give you an "Unconditional Release" upon payment to him. In other words, the Release should be absolute and not be contingent on anything or any event because the subcontractor will have been paid in full.

 

 



Please be kind enough to rate my service to you as "Excellent Service", Bonus and Positive Feedback are greatly appreciated,

ANDREA

 

Customer: replied 1 year ago.


Thank you Andrea. So if I obtain an Unconditional Release, I don't have to obtain a conditional release. It's not the case where you need both to lift the lien?

Expert:  Andrea, Esq. replied 1 year ago.

You had also requested the law which embodies the California Mechanics' Lien Law. Pursuant to Senate Bill 189, California's laws regarding Mechanics' Liens, stop notices, and payment bonds were revised and took effect on July 1, 2012.

 

And, all of the Mechanics' Lien Laws and related laws were moved from Civil Code Sections 3081.1 through 3267 and replaced with new laws set forth in California Civil Code § 8000 through §8848 and §9000 to §9566, and you can .

access these sections by clicking on the link which I have provided below for your convenience of reference:

 

 

http://law.onecle.com/california/civil/8000.html



Please be kind enough to rate my service to you as "Excellent Service", Bonus and Positive Feedback are greatly appreciated,

ANDREA

 

Andrea, Esq., Attorney
Category: Legal
Satisfied Customers: 11521
Experience: 25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
Andrea, Esq. and 14 other Legal Specialists are ready to help you
Expert:  Andrea, Esq. replied 1 year ago.

I apologize for not Answering your question completely, maybe I wasn't clear enough. All you need is an "Unconditional Release", just think of it as a Release "with no strings attached",

 

Thank you so much for the "Excellent Service" rating, I appreciate it greatly. If you have additional questions, or I may be of service in the future, please feel free to ask for me by typing my name at the beginning of your question, like this,

 

 

"For Andrea only ............" And your questions will be directed to me,

 

 

 

Thank you once again for allowing me the opportunity to be of service,

 

ANDREA

 

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