If you are a contractor, chances are that you have had to file a mechanic’s lien on a project for payment due on work performed. We have represented many contractors over the years for which we have either filed and foreclosed upon a mechanic’s lien or foreclosed upon a lien that the contractor had already filed. There are certain steps that must be followed in New York for a mechanic’s lien to be proper and enforceable.
Lien Law §9 sets forth the elements that stated in a Notice of Lien. The required elements are as follows:
- The name and residence of the lienor; and if the lienor is a partnership or a corporation, the business address of such firm, or corporation, the names of partners and principal place of business, and if a foreign corporation, its principal place of business within the state.
1-a. The name and address of the lienor’s attorney, if any. - The name of the owner of the real property against whose interest therein a lien is claimed, and the interest of the owner as far as known to the lienor.
- The name of the person by whom the lienor was employed, or to whom he furnished or is to furnish materials; or, if the lienor is a contractor or subcontractor, the person with whom the contract was made.
- The labor performed or materials furnished and the agreed price or value thereof, or materials actually manufactured for but not delivered to the real property and the agreed price or value thereof.
- The amount unpaid to the lienor for such labor or materials.
- The time when the first and last items of work were performed and materials were furnished.
- The property subject to the lien, with a description thereof sufficient for identification; and if in a city or village, its location by street and number, if known; whether the property subject to the lien is real property improved or to be improved with a single family dwelling or not. A failure to state the name of the true owner or contractor, or a misdescription of the true owner, shall not affect the validity of the lien. The notice must be verified by the lienor or his agent, to the effect that the statements therein contained are true to his knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true.
To properly file a notice of lien, it can be filed at any time during the progress of the work and the furnishing of the materials, or, within eight months after the completion of the contract. NY Lien Law §10. However, if the real property improved, or to be improved, is a single family residence, then the Notice of Lien must be filed within four months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished. NY Lien Law §10. In addition, where the notice of lien is for retainage, the notice of lien may be filed within ninety days after the date the retainage was due to be released (with certain exceptions).
Section 11 of the Lien Law requires that the notice of lien must be served upon the owner within five days before or thirty days after filing the notice of lien. If the owner is a natural person, the notice of lien must be served as follows: (a) by delivering the same to them personally, or if the owner cannot be found, to their agent or attorney, or (b) by leaving it at their last known place of residence in the city or town in which the real property or some part thereof is situated, with a person of suitable age and discretion, or (c) by registered or certified mail addressed to their last known place of residence, or (d) if such owner has no such residence in such city or town, or cannot be found, and he has no agent or attorney, by affixing a copy thereof conspicuously on such property, between the hours of nine o’clock in the forenoon and four o’clock in the afternoon. NY Lien Law §11. Service upon a corporation requires different steps.
If the owner is a corporation, service must be made as follows: (i) by delivering such copy to and leaving the same with the president, vice-president, secretary or clerk to the corporation, the cashier, treasurer or a director or managing agent thereof, personally, within the state, or (ii) if such officer cannot be found within the state by affixing a copy thereof conspicuously on such property between the hours of nine o’clock in the forenoon and four o’clock in the afternoon, or (iii) by registered or certified mail addressed to its last known place of business. NY Lien Law §11. Whether the owner is a natural person or a corporation, proof of service must be filed with the county clerk within thirty-five days after the notice of lien is filed. Failure to do so shall terminate the notice as a lien.
The duration of a notice of lien is one year, unless the lienor either files an action to foreclose, or seeks an extension from the court. NY Lien Law §17. Any foreclosure action must be filed in the Supreme Court of the State of New York in the county in which the notice of lien was filed (and in which the property is located).
As you can see, the process of filing and foreclosing upon a mechanic’s lien is very specific. If one requirement is missed, the lien will be discharged and will not be enforceable. If you are considering filing a mechanic’s lien, it is important to work with an attorney or lien filing service that is familiar with the steps that must be taken – it will be worth it in the end to be confident that you have filed a mechanic’s lien that is enforceable.
Disclaimer: The information contained in this post is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and communications. Contacting us, however, does not create an attorney-client relationship.
