Common Lien Mistakes
Contractors routinely mess up their mechanic’s liens. This is because, more often than not, contractors and business owners try to file their liens on their own without help, assistance, or input from attorneys. When attorneys are used, they often don’t have the full facts from their client, and even then, many attorneys claim they can file liens when in reality they know little to nothing about the process or the requirements of filing and serving a proper mechanic’s lien in Ohio.
Based on our experiences, these are the most common mistakes that Ohio construction contractors and their lawyers make when filing mechanic’s liens, and what the attorneys at Myers Law initially look for when reviewing potentially illegal mechanic’s liens. This is not an exhaustive list, but the issues listed are the most common and most severe mistakes that we see, and could make a lien invalid or unlawful.
For residential projects, i.e. construction on single-family homes and single-family units, Ohio mechanic’s lien law gives the contractor only has sixty (60) days from the last date work was done to file a mechanic’s lien. The last date of work, or last day materials were delivered, can be tricky to define. Not all work is considered “labor,” and not all goods delivered are “materials,” when it comes to calculating this critical date. If the lien is filed on day 62, it’s too late, and it is invalid.
Sometimes, mechanic’s liens will show on their face that they were filed out of time. We have encountered numerous liens filed against our clients’ properties where the last-date indicated on the lien was more than sixty days before the filing date stamped on the lien. While some Ohio counties will throw these liens out and refuse to record them, others will record anything submitted to them, even if it is invalid on its face.
Usually, the timeliness isn’t so obvious. The contractor’s mistake is usually that it put a date on the lien that is false, or that it used a date that is associated with repair or warranty work performed, not original contracted-for work. These dates do not extend the deadline for filing the lien, and do not count as the last day labor is performed. An experienced attorney must be consulted to determine whether the lien on your property was filed timely or not.
Some contractors falsely believe that once they file a lien, their job is done. This is not true. The contractor must also serve the lien on the property owner within thirty (30) days after it is filed, usually by certified mail, or by some other way that they can later prove lead to you being served with the lien in that time-frame. If they cannot serve the lien within thirty days, they get an additional ten (10) days to post the lien at the property.
Often, we see contractors that have filed a lien, but never mailed, never delivered, never posted, and never served the lien on the property owner. This means that the lien was never “perfected,” or never made enforceable. If the contractor cannot prove they delivered it, and the homeowner or property owner never received it, then the lien is invalid. You cannot tell if this is true from the face of the lien or the language used in the mechanic’s lien. Instead, this ultimately needs to be proved (or not proved) in court.
Contractors rarely include the correct amount of the lien when they file their mechanic’s liens. Ohio law requires that contractors list the amount due, above all legal set-offs, meaning the amount due after the payments received or after deductions for work not being performed. Contractors often inflate the lien amount when they file their lien, and they try to include costs, attorney fees, interest, or other amounts in the lien. Ohio mechanic’s lien law does not allow the lien amount to be changed in this manner.
If the contractor mis-states the lien amount, or lies and inflates this amount, it is possible that a court may invalidate the entire lien, or may reduce it to the proper amount. The outcome in court depends on the extent that the contractor overstated the amount, and some other factors.
Contractors who try to file liens on their own usually fail to do the research needed to identify who the actual property owners are. Sometimes the contractor assumes that whomever they are dealing with owns the property. That is not always the case. If the contractor files a lien against someone who happens to rent the property, but does not own the property, then the lien is only against the rental-interest of the renter, not against the ownership interest of the owner.
What does this mean in non-legalese? It means that if you are the property owner, and someone is trying to foreclose on your property because they did work for a renter of yours, but the lien is only against the renter–and the lien does not name you (especially if you knew nothing about the work being done for the renter)–it is possible that the lien is not enforceable against you or your ownership. The renter might get the boot, or the contractor may have the right to take over for the renter to rent from you, but the contractor should not be trying to take your property from you. They may try, but an experienced attorney can assist you.
Sometimes identifying property lines can be tricky. Identifying the correct legal description or parcel can also be tricky for contractors, especially those who fill out a lien without proper research or an attorney. We have seen situations where liens are filed on the wrong property, especially in situations where a property owner actually owns multiple adjacent parcels of land. If work is done on a home which is only one parcel, but the lien is filed on a different parcel where no work was done, that can be a huge problem for the contractor (and a saving-grace for the property owner).
For our clients who own multiple properties, we have heard of contractors threatening to put liens on all of their properties, even areas where the contractor never visited or performed work. Not only would that invalidate the mechanic’s lien in court, but if the contractor actually puts that in writing, or in a text message, email, voicemail, etc., it is proof that the contractor was acting maliciously, which opens the door to punitive damages and a slander to title claim against the contractor.
Ohio Mechanic’s Liens last for only six (6) years from the date they are filed. At six years and two days, the lien is no longer enforceable, meaning it cannot be foreclosed on, and no longer “clouds” the title or creates any rights for the contractor to recover money from the property. We have seen contractors try to sue and enforce liens after they have expired. Not only is that legally improper, it could be frivolous conduct on the part of the contractor, and potentially a violation of the Federal Fair Debt Collection Practices Act (a law that protects consumers from abusive debt collection practices by debt collectors, including attorneys who collect debts from consumers).
If a contractor or attorney filed to foreclose or collect on a lien more than six years after the mechanic’s lien was originally filed, you need to contact an attorney immediately. If you do nothing, you will likely lose by default.
This is not a complete list of the mistakes we have seen. For example, Attorneys Dan Myers and Samantha Vajskop have seen liens where contractors mistakenly list the homeowner or property owner as the lien claimant (instead of themselves). Myers Law has dealt with liens lacking the language that the law requires, liens that do not actually, by their words, create a lien, and even liens signed by unauthorized third-parties practicing law without a license. Even though Ohio has constitutionally permitted mechanic’s liens since 1912, contractors are no better at filing or creating them.
The information on all pages of this website is intended as general information, not as legal advice. It should not be relied on as legal advice, and unless you have a signed attorney-client agreement with Myers Law, LLC, Myers Law, LLC does not represent you as your attorney.