I live in San Francisco. My contractor failed to pay my subcontractor $13K for services on my house. My contractor has been paid in full for all work invoiced. The sub failed to file a 'prelim notice of lien' (at all) within the 20 day statutorily required time frame or any type of notice for completion of services. The sub filed his mechanics lien thru "Zlien" just recently. It has yet to show up in the country recorders records (4 weeks behind). My contractor simply does not have the $ to pay him now. The recorder's office has indicated they do not review the liens as to whether the process has lie been followed (ie prelim notice filed) and that the lien will likely be recorded. How do I 'nip this in the bud'? My understanding is that the sub cannot not perfect his security int
Two ways: If there is pending litigation, a property owner may file a Motion to Remove Mechanic’s Lien. Under California law, this is recognized as the proper manner in which to challenge the validity of a mechanic's lien once a contractor has filed an action to foreclose on the lien. Such motion allows a property owner to obtain speedy relief from an unjustified mechanic's lien. (Lambert v. Superior Court (1991) 228 Cal.App.3d 383.)
The grant of a motion to remove a mechanic's lien is essentially a judgment that no lien exists, which, upon recordation, removes the lien from the public record. (California Civil Code §3148.)
Alternatively, California Civil Code § 3143 provides an alternative method for removing a mechanic's lien. It permits an owner who disputes a lien to release the property from the lien by posting a surety bond equal to one and one-half times the amount of the claim. Once the release bond is recorded, the owner of the property is released from the mechanics' lien cause of action and the contractor must file a supplemental complaint adding a cause of action on the release bond against the principal of the bond and the bond surety. (Fontana Paving, Inc. v. Hedley Brothers (1995) 38 Cal. App.4th 146, 151.)
Mechanic's lien release bonds may be enforced by the summary procedure provided for in California Code of Civil Procedure Section 996.440. (Grade-Way Construction v. Golden Eagle Ins. Co (1993) 13 Cal.App.4th 826 .)
In addition to what Mr. Chen stated, it is possible that the lien has not been recorded. Contractors and subcontractors often will send unrecorded liens to owners in the hope that the owner will not check public records and pay the lien amount. You may want to wait to see if the lien was actually recorded.
If it was not recorded, then there is nothing you need to do. It is not valid unless it is timely recorded.
It would also not be valid if you did not get a preliminary notice.
Whatever you decide to do, start by sending a letter to the sub-contractor demanding that he remove the lien. By doing that, you can then sue to remove the lien and collect attorney's fees.
Finally, if you have paid the contractor in full and he did not pay the subcontractor, he is in violation of contractor license law, and is subject to discipline. If you have a good relationship with your contractor, call him and tell him that he better take care of the lien, or you will have no choice but to take action against him. You can then file a complaint with the CSLB and even put in a bond claim.
What your contractor did is a serious violation. He could lose his license or be jailed (not likely).
Cathleen M CurlConstruction / Development LawyerMillbrae, CA ·
I find that a strong letter to the contractor from an attorney explaining the invalidity of his lien and explaining his liability for damages generally works in this situation. I also prepare and enclose a Release of Lien form for him to sign, notarize and return to me to record because many contractors don't know how to take a lien off once they put it on. You can also wait the lien period out. If no lawsuit is filed within 90 days of the recording date of the lien, then the lien expires by operation of law but it doesn't disappear from the records. If no lawsuit is filed, you can file suit to get the Court to "expunge" or release the lien, and the contractor can be liable for up to $2,000 in your attorney's fees to remove.
