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Options for Removing Mechanic’s Liens

As always, before taking action, you should first retain and consult with an attorney about your specific options and rights–-some of these options may be better than others in your situation, and some may not be available to you.

On this page, we cover some of the general options available to owners of residential property when a lien is placed on their home or residence. If you are a business or commercial property owner, some of these options are still available to you, but others do not apply. An attorney can assist you in understanding the options available to you.

Pay to Get the Mechanic’s Lien Removed

If you do not dispute that the money is owed, you think the lien is valid, the work was perfect, and the contractor complied with Ohio law, you may want to consider calling the contractor to see what you can do to pay the lien off or settle the dispute. If you choose to pay it off, make sure you pay by check or other traceable payment method. If the lien is jeopardizing critical financing, the costs of fighting it may outweigh the benefits.

Before you agree to pay a lien off, you should at least consult with an attorney experienced in lien law and consumer law. Here at Myers Law, we have experience litigating liens and identifying their weaknesses.

Before or at the time you make payment on the lien, you should also get proof of payment and proof the lien is released or will be later that day. Don’t take the contractor’s word or the contractor’s attorney’s word for it.

Cancelling the Contract Under Ohio Consumer Law to Remove the Mechanic’s Lien

If the contractor violated the Home Solicitation Sales Act (check out Myths #1 & #9 in a blog post on our consumer law blog), and you are allowed to cancel your contract, you can do so and try to force the lien to be removed. This is especially helpful when the lien is filed by the company or person who you hired, as opposed to their subcontractor. No contract means no valid lien.

The Home Solicitation Sales Act specifically states that when a contract is cancelled pursuant to that law, the now-cancelled agreement can’t be the basis of any legal “security interest,” which includes mechanic’s liens. Legally, the contractor is required to remove the lien within two weeks.

In practice, while this might be the right path to take under specific circumstances, the contractor won’t voluntarily do this unless they get good legal advice themselves. This option sets you up for court proceedings, and puts you in a potentially strong position when done the right way on the right case under lawyer direction and supervision.

Force the Contractor to Act on its Lien by Using a Notice to Commence Suit

As with any option (including the option to do nothing), you should consult with, and probably hire, a lawyer to do this for you because the steps are very complicated and strict. If you decide to do this, you can force the contractor to sue you on the lien within 60 days of serving the notice; otherwise the contractor has abandoned the lien, and your property is released.

The contractor can still sue you for non-payment even if they never foreclose on the lien; but if they do not sue to enforce the lien, your property is free from the lien. This is important when you need a quicker turnaround due to financing problems the lien can cause. You can combine this with the next option or other options, as well.

File a Bond or Cash Deposit with Your County Court of Common Pleas

Cash deposits or other bonds, if done properly, can replace your home or residential property for purposes of the lien. Again, you need a lawyer to assist you with this step, as it involves court action.

If you put up the right amount of the lien in cash or bond, and have a court approve your application to substitute the money in place of the property, the lien is removed from your land. Any action the contractor takes based on the lien must be taken against the cash/bond, not your home.

Few people can afford this option, however, because it involves putting on deposit with the court either twice (2x) or one-and-one-half (1.5x) times the amount of the lien. That money might sit around for years with the court while litigation is ongoing. But doing this with approval of the court will remove the lien from your property.

Sue the Contractor for the Wrongful or Fraudulent Mechanic’s Lien

There are many reasons to sue a contractor over a lien, and many more reasons why the mechanic’s lien might be a bad or wrongful lien. If the lien was never served to you, it is invalid, and you will likely need to go to Court to get the lien removed. If the contract the lien is based on was cancelled, this may provide your lawyer with another way to invalidate the lien. If the lien was filed out of ill-will or malice, and contains intentionally false statements, your lawyer may be able to sue the contractor for slandering your title to the land, which could allow you to recover your attorney fees and punitive damages, in addition to the harm you suffered (loss of financing, etc.).

Slander to title claims (which include potential for recovery of punitive damages and attorney fees) have a one-year statute of limitation, so the property owner must act quickly in seeking legal advice.

Additionally, you can sue the contractor for breach of contract, and possibly for violating Ohio’s consumer protection laws. Filing a wrongful lien against a residence is itself a consumer law violation that could entitle you to triple your actual damages, plus attorney fees, and even punitive damages. If a subcontractor puts a lien on your property because your general contractor never paid the subs, you may have a good claim against your general contractor for violating your consumer rights under the Consumer Sales Practices Act.

There are strict time limits on these claims, some as short as one year, so contact an attorney immediately.

File an Affidavit of Payment Before More Liens are Filed

If you have fully paid your original contractor what is due under your contract, and did so before a lien was filed, you can file an affidavit of this fact with the County Recorder. This may have the effect of nullifying any liens filed after you made that final payment.

This step is rarely an option because it requires action to be taken before a lien is ever filed, and most homeowners do not think to do this when everything seems fine.

Disfavored Option: Wait Six Years and See

If you’re willing to deal with the consequences of a mechanics lien, and willing to lose out on your consumer rights and legal claims in the meantime, you can always wait and see whether the contractor ever forecloses on the lien. Doing nothing is always an option. But it’s usually not a good option, and will normally just cause more problems in the long-term.

Most of these options involve the court system, but all of these options really require a meeting and discussion with an attorney about the facts of your specific situation before you elect to follow one over the other, or use the methods available under the law.

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.

 

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