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Additional Notices Required for California Mechanic’s Liens Starting in 2011
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February 1, 2010
By Rowan T. Mason
Effective January 1, 2011, the California Legislature has amended Civil Code §§3084 and 3146 to require two additional notices relating to mechanic’s liens.
The Legislature acted in response to complaints from property owners, particularly residential owners, who were unaware that a mechanic’s lien had been recorded against their property until a suit to foreclose was filed.
Existing law required most providers of labor, services, equipment or material for private projects to serve, before starting work or within 20 days after starting work, a preliminary 20-day notice on project owners, contractors and lenders as a pre-condition to later asserting mechanic’s lien claims. Those under direct contract with project owners were exempt from this requirement. Existing law required no additional notice to the property owner by lien claimants when a mechanic’s lien actually was recorded.
Assembly Bill 457 amended Civil Code §3084 to require that a “Notice of Mechanic’s Lien” and a copy of the mechanic’s lien be served on the owner of the property by registered mail, certified mail or first-class mail before the lien is recorded. The notice and lien must be sent to the owner’s residence, owner’s business address, the address shown on the building permit or as provided by other statutes. The lien claimant must prepare and sign a sworn proof of service affidavit. The affidavit must be included in the mechanic’s lien. If, and only if, such service is not possible, the claimant instead may fulfill the notice requirement by service on the construction lender or the original contractor using the same methods.
An otherwise proper mechanic’s lien will be unenforceable as a matter of law if a Notice of Mechanic’s Lien was not properly served before the lien was recorded. The Notice of Mechanic’s Lien is intended to explain the consequences of the lien and action required of the recipient.
The amended statute specifies the language of the notice and its type size (at least 10 point). The required language is as follows:
| NOTICE OF MECHANIC’S LIEN |
| ATTENTION! |
Upon the recording of the enclosed MECHANIC’S LIEN with the county recorder’s office of the county where the property is located, your property is subject to the filing of a legal action seeking a court-ordered foreclosure sale of the real property on which the lien has been recorded. That legal action must be filed with the court no later than 90 days after the date the mechanic’s lien is recorded.
The party identified in the mechanic’s lien may have provided labor or materials for improvements to your property and may not have been paid for these items. You are receiving this notice because it is a required step in filing a mechanic’s lien foreclosure action against your property. The foreclosure action will seek a sale of your property in order to pay for unpaid labor, materials, or improvements provided to your property. This may affect your ability to borrow against, refinance, or sell the property until the mechanic’s lien is released.
BECAUSE THE LIEN AFFECTS YOUR PROPERTY, YOU MAY WISH TO SPEAK WITH YOUR CONTRACTOR IMMEDIATELY, OR CONTACT AN ATTORNEY, OR FOR MORE INFORMATION ON MECHANIC’S LIENS GO TO THE CONTRACTORS’ STATE LICENSE BOARD WEB SITE AT www.cslb.ca.gov.
In addition, Civil Code §3146 was amended to require the filing and recording of a notice of pendency of action (or lis pendens) within 20 days after a suit to foreclose on a mechanic’s lien is filed. Previously, a lis pendens was permitted but not required. Section 3146 provides that subsequent purchasers and encumbrancers are deemed to have constructive notice of the mechanic’s lien foreclosure action only from the time the lis pendens is filed and recorded.
The Notice of Mechanic’s Lien requirement is intended to give property owners early notice of a lien claim and time to resolve it before litigation begins. The lis pendens requirement is intended to assure that lien foreclosure suits are of record and thereby available for title searches.
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