INDIANA MECHANIC S LIEN LAW 2017

Transcription

1 INDIANA MECHANIC S LIEN LAW 2017 Go to: Indiana Mechanic s Lien Forms More Info: Section Contents Pre-lien Notice(s) Name of Notice Who Must Use This Notice When How to Serve Verified or notarized? Section Contents Indiana Mechanic s Lien Who is Entitled to a Lien? When to File/Record Where to File/Record How to Serve Amount of Lien Property Subject to the Lien Furnishing Information Verified or Notarized Priorities Lien Release Bond Miscellaneous Issues Page 1 of 14

2 Section Contents Lawsuit to Foreclose Lien Introduction When Where to File Arbitration Need a Lawyer? Indiana Mechanic s Liens--General Notes Be Careful: The courts consider a mechanic s lien to be a privilege and not a right. You receive its benefits only if you strictly adhere to the state law requirements. Bottom line: miss a deadline by one day and you have lost it. Unlike other areas of the law where you can argue equities, find technical exceptions, and lawful excuses, there is no forgiveness here. In this case, knowledge is not only power, it s a necessity. In Indiana you will be writing down dates for at least four documents: a) Prelien Notice to Owner of Mechanic s Lien Rights; b) Notice to Owner; c) Mechanic s Lien; and d) lawsuit to foreclose the Indiana mechanic s lien. Write down all the deadlines in your calendar. Use a highlighter or red pen. If you have a staff, use a fail safe system by doubling up and putting it in their calendar also. This reminds you twice. The first calendar entry should be two weeks before the due date as a preliminary reminder. On the second calendar entry, do a white lie to yourself. Put the due date as one week before it is actually due as insurance in case you get busy or need legal advice. Time is money. You will waste a lot of valuable time running around and doing it at the last moment, as opposed to doing it early. PRELIEN NOTICE To understand the notices required in Indiana, you need to know the types of construction described in the mechanic s lien laws of this State. The type of construction is important as far as notices and liens. There are 3 types of projects, for lien purposes, in Indiana: Page 2 of 14

3 1. Type 1 - Residential Projects. This is defined to include single or double unit residential dwellings. 2. Type 2 - Utilities. This includes property owned or operated by state-regulated utilities and property intended to be used for the production, transmission, delivery or furnishing of heat, light, water, or power to the public. Telecommunications, sanitation, and waste disposal projects are not included in this category. 3. Type 3 - All other projects. This covers all other projects, including commercial and industrial. This state requires at least one Notice be sent out before the Indiana mechanic s lien is filed/recorded. For simplicity, this notice will be referred to as a Prelien Notice. There are at least 2 prelien notices that may be filed in Indiana. They are categorized as follows: PRE-LIEN NOTICE TO OWNER OF INDIANA MECHANIC S LIEN RIGHTS (Subcontractors and Suppliers) Who Must Use this Notice: Subcontractors and material/equipment suppliers that perform construction services for a single or double family dwelling, either occupied or to be occupied by the owner of the property. For this reason, there is no requirement of giving this prelien notice in the following cases: A. When the residence is not occupied by the owner but is used as a rental. B. If you have a contract directly with the owner. C. Work done on Type 2 properties (regulated utilities) or Type 3 projects (industrial and commercial). Subdivisions: Under this definition would be residential subdivisions owned at the time of construction by a contractor or developer. In such a case, there is no intended specific homeowner at the time of construction. As is commonly known, the units are sold to homeowners after construction and marketing is complete. Technically, because there is no intended specific homeowner, the notice would not be required. Nevertheless, it is highly recommended it be served. Here is why: When the eventual homeowner buys the property, they Page 3 of 14

4 are considered an innocent purchaser and not subject to your Indiana mechanic s lien. The only exception is if you have previously served the Notice on the developer of the subdivision and recorded it before they close escrow. If that is the case, it would be subject to your mechanic s lien. So, you are required to 1) serve the owner by certified mail and 2) record the Notice in the recorder s office. The owner would be the developer. To find out that person s name and address, look in the County Auditor transfer books or the Township Assessor s transfer books. Spec. homes: If a homeowner purchases the land and hires a general contractor to build, clearly the Notice would be required. This is because there is a specifically identified homeowner. Serve that homeowner by certified mail. Recording is not required. If there is no specifically identified homeowner (in other words, no homeowner has signed a contract yet) and the property is owned by a general contractor or developer, the Notice must be served on the developer and recorded. Custom homes: By definition, the homeowner owns the land and has already signed a contract with the developer or general contractor. As such, the Notice is served on the homeowner but there is no requirement of recording. This is because the homeowner is knowledgeable of the construction and can hardly be considered an innocent purchaser. Repair or a model of an existing home: Similar to the situation of a custom home, the Notice must be served on the owner but need not be recorded. When: See Time Deadlines table. How to Serve: The prelien notice is served on the owner by certified mail, return receipt requested. In addition, the statute now requires for original construction (building a new home from scratch as opposed to remodeling) as to a subdivision or spec home (see details in above section) that the prelien notice be recorded in Page 4 of 14

5 the Recorder s Office in the county where the project is located within 60 days from the time the subcontractor or supplier first furnishes labor or materials. It is absolutely crucial that the prelien notice be mailed to the owner, and recorded. The recording of a prelien notice is relatively new law in Indiana, but if it is not done, the lien claimant is prevented from later filing a mechanic s lien. Verified or Notarized?: The prelien notice must be both verified and notarized. NOTICE TO OWNER OF PERSONAL LIABILITY Who Must Use this Notice: Subcontractors, laborers, and material suppliers who do not have a direct contract with the owner. In most states, a subcontractor or supplier can only foreclose his or her Indiana mechanic s lien against the owner s property and never get a personal judgment against the owner. This is because there is no contract with the owner. Indiana is different in that it allows such personal liability, under certain circumstances, upon the service of this special notice. This puts the owner on notice that the general contractor is not paying subs and suppliers. The owner is then entitled to withhold money sufficient to pay the subcontractors and suppliers. If the owner nevertheless goes ahead and pays the prime contractor after receipt of the notice, that person will be personally liable if he or she makes further payments to the general contractor and this does not filter down to the subs and suppliers. In essence, this acts like a Stop Notice and the freezing of further monies to be paid to the general contractor. But remember, the owner only has to withhold retention and the contract balance from the general contractor. And, no lien contracts contracts where the owner provides that there will be no liens on the project do not apply if this notice is given. In other words, subs and suppliers can still receive their mechanic s lien rights if this notice is given (even with a no lien contract ). When: How to Serve: See Time Deadlines Table. Serve the owner by certified mail, return receipt requested. Page 5 of 14

6 Verified or Notarized?: This form need only be signed and does not have to be notarized or verified. MECHANICS LIENS ( Sworn Statement and Notice of Intention to Hold Mechanic s Lien ) Who is Entitled to a Lien: An Indiana mechanic s lien is primarily for general contractors, subcontractors, laborers, as well as material/equipment suppliers. But it also covers registered professional engineers, surveyors, and architects. Material suppliers must show that the materials were used in the construction. There is a legal presumption that they have been used if there is proof they were actually delivered to the job site. The Indiana lien is also allowed for the leasing of equipment and tools (most states allow a lien for equipment but not tools). This applies whether or not an operator is provided with the equipment. Such lessors must prove that the equipment/tools went to the specific project subject to the lien and that it was used on that specific project for the amount claimed. Laborers receive a lien as well as persons who do direct supervisory labor. In addition, union and fringe benefit funds also have lien rights, as do suppliers of fuel to run the construction equipment. Unfortunately, a material supplier who has a contract with another material supplier (as opposed to a contract with a subcontractor) is considered too remote and does not have lien rights. Also too remote is a supplier to a sub-subcontractor. When to File/ Record: Those persons who performed supervisory services, such as construction managers, may not record a mechanic s lien because they are not performing on-site labor. See Time Deadlines table. As long as there is still work to be done under the contract or further work as requested by the owner, the time is extended for filing the lien. For example, if the owner requires corrective work to be done before payment is made, and the contractor complies, the period is extended. The owner is also prevented Page 6 of 14

7 from arguing that the lien has expired if he or she refuses to accept the construction work as complete or wrongfully withholds payment. Although the law is not entirely certain, it appears that Indiana will also extend the Indiana lien period if there is remedial work. In many states, simply going back and repairing what you have already done does not extend the lien period. It may be different in Indiana. You should seek competent legal advice on this subject. Where to File/Record: File in the Recorder s Office of the county in which the property is located. The filing must be done in duplicate, so make sure you bring a second signed copy. The clerk s office can be very picky. For example, you must type or print your name under all signatures and notary stamps must be crisp and clear. How to Serve: Amount of Lien: The Indiana mechanic s lien lists the name and address of the owner. With this information, the Recorder mails a copy of the lien to the owner within 3 business days after recording. This means it is done for you. Primarily for unpaid labor, material, and equipment supplied. A mechanic s lien does not require an itemized statement or detailed accounting of the exact amount owing. Merely making a mistake in the amount inserted in the lien will not void the document if this was not done intentionally, fraudulently, or with gross negligence. Since the Indiana lien can be for all the monies owing under the contract, this would presumably allow change orders. Caution: Subcontractors and suppliers are limited to the unpaid balance owed in the contract between the owner and general contractor at the time their prelien notice is served. Specifically, I.C (d) states: The property owner is liable to a (subcontractor) for not more than the amount that is due and may later become due from the owner to the employer or lessee. The term employer refers to a general contractor who hires a subcontractor. Lesson: Serve your prelien notices early. Obviously as to the general contractor, that person is limited to Page 7 of 14

8 the balance owing under the contract between himself or herself and the owner. This means the owner can claim that less is due because of the cost to repair and other setoffs. Also, the general contractor can include unpaid amounts to subcontractors and suppliers in his or her lien. Any claimant is allowed profit and overhead in the amount of the lien as well. Prejudgment interest is allowed running from the last invoice submitted, but this awarded only later in court when you are proving up the lien. When you receive judgment in a court proceeding to foreclose the lien, the winning party is guaranteed to receive an award of attorney s fees. The only discretion of the judge is how much. Labor costs, including labor burden, fringe benefits, union contributions, insurance, and taxes are also included in the lien. The same applies to supervision costs and the expenses of a project superintendent. Property Subject to the Lien: An Indiana mechanic s lien applies only to private projects. No lien is allowed in public projects against government property. The lien applies to not only the building but the surrounding land which is necessary for use and enjoyment of that building. It also extends to the entire parcel on which the building is situated. Once the lien records, it will run with the land and be a lien as to later purchasers of the same property. The only exception is a single or double family residence which does not take subject to the lien if the property is transferred to this homeowner before you record your lien. It is therefore very important to record your lien as soon as possible if you suspect the property is being transferred to a homeowner. A lien will also lodge against the interests of a tenant. However, it will not go against the landlord s interest unless that person is actively involved in the improvements, in which case it will apply against the owner s interest as well. The important factor is whether the landlord knows of and consents to the work. Active involvement is even easier to show if the landlord directs or requires the work to be done under the lease. Leasehold improvements can actually be foreclosed upon and removed within 90 days after the foreclosure sale. Page 8 of 14

9 Unfortunately, the most valuable asset of a tenant are his or her trade fixtures which, in many cases, are considered removable personal property because they are not permanently attached to the real estate. A lien will not apply to such a trade fixture or similar equipment. Furnishing Information: Verified or Notarized?: Priorities: Upon request, the general should furnish others with information about the owner so the required notices and lien can be filled out properly. A verified notice simply means you sign it and are representing the contents are true and accurate. A notarized notice is signed in front of a Notary Public or other official. A verified notice is all that is required in this state. The lien must be both verified and notarized. A lien may now be signed by the claimant s attorney and if so, it is not required to be verified. All mechanic s lien claimants, regardless of when they perform their services or record their liens, have the same priority as between themselves. They share pro-rata in any of the proceeds of the sale of the property. Remember also that as soon as the first person performs work, the priority of the mechanic s lien relates back to that moment. In other words, the person doing demolition work has the same priority as a painter who works at the end of the project. As to the new construction of an owner-occupied residence, there had been a question whether the new purchaser of the residence would take the property subject to a lien. The legislature has stated the lien will apply to new purchaser s interest only if it was recorded before they took title by deed. Lien Release Bond: The owner may release the Indiana lien by filing a surety bond, in an amount to be approved by the court. An owner can also file a letter of credit which covers the principal, interest, and fees of the lien. If this is the case, the lien claimant proceeds in court as before, but upon judgment, will collect against on the bond or letter of credit. This is actually a good thing because it is like someone taking out an insurance policy in your name. Page 9 of 14

10 Miscellaneous Issues: Contents of Lien: The lien notice requires both a street address and a legal description of the property being liened. However, the courts are very liberal in allowing the validity of the lien even without this legal description, as long as it is sufficiently described so as not to mislead the owner. Amending the Lien: Once the lien is filed, it cannot be amended. Unfortunately, you are struck with it s contents, including the failure to include the correct language. For this reason, it is crucial that you use an approved and standard form. No-Lien Contracts: Indiana is one of the few states that allows an owner s contract to provide for the waiver of any lien rights by the general, subs, and suppliers. If properly executed, it will literally waive the lien rights of all persons supplying work to the property. Such a contract must be in writing, with signatures acknowledged before a Notary Public, and recorded in the Recorder s Office no more than 5 days after signing the contract. On the other hand, if all these requirements are not met, the liens are not waived, and a subcontractor or supplier could still file a mechanic s lien, even though they had actual knowledge of the no-lien contract. In 1999, Indiana changed the law to forbid such no-lien contracts for Type 3 projects encompassing commercial or industrial projects. However, these no-lien contracts are still allowed for Type 1 (residential) and Type 2 (public utility projects). An examination of the Statute ( , Sec. 1(e)) in effect after the 2008 legislative session seems to indicate there has been a change in the law. No-lien contracts are now only specified for class 2 utility projects. This would mean that they are not allowed for residential as well as commercial construction. However, there is the confusing language that no lien contracts can apply to contracts... to prepare property for class 2 residential construction. It is suggested you receive Page 10 of 14

11 advice from an experienced construction attorney in Indiana to unravel this murky phrase. Attorney s Fees: Whether or not you have an attorney s fees clause in your written contract or purchase order, if you file mechanic s lien and later are required to bring a lawsuit to foreclose, there is a special Indiana Statute that allows you to recover attorney s fees ( ). If you receive a judgment for any amount, you are entitled to all your reasonable attorney s fees. This literally means that if you had a $10 judgment, you could receive attorney s fees literally in thousands of dollars if they were reasonable for purposes of collection. But remember, the court will scrutinize those fees for reasonableness and only allow them as reasonably necessary for the collection. But there is one exception. If the owner has already paid all sums due under the general contract, as a subcontractor or supplier you will not be entitled to those attorney s fees. What State To Sue In And What Law Applies? Assume you are a general contractor and the owner has a main office in another state. The contract you sign indicates that the law to be applied in any dispute is the state in which the owner has an office. Further, it indicates any lawsuits or arbitration must be held in that other state, namely other than Indiana. Is this valid? No, if the work was done in Indiana, Indiana law applies and the place for trial or arbitration must be in Indiana as well. Note, this also applies to provisions that may be inserted in subcontracts. See Section LAWSUIT TO FORECLOSE LIEN Introduction: When: Your lien is not valid forever. Because it directly affects the owner s title, it has a limited shelf life and must be enforced within a short period of time. That enforcement is done by filing a lawsuit to foreclose. Just like the time deadlines for a Pre- Lien or Mechanic s Lien, the courts strictly construe these time limits which are called statutes of limitation. Again, if you are literally one day late, the lien is ineffectual. Within one year after recording the lien. Page 11 of 14

12 Where to File: Arbitration: The circuit or superior court of the county where the property is located. Many construction contracts state that all disputes will be decided by binding arbitration, as opposed to a court proceeding by judge or jury. In fact, it has long been a tradition to do so in the construction industry. Arbitration is usually quicker and less costly, especially because it cuts down on expensive discovery. The decision is final and binding, with no right to appeal. You lose your right for a jury trial, but few contractors want that in the first place. You usually pick an experienced construction attorney or retired judge to hear the case in their conference room. It is just like a court proceeding with the same general rules of evidence, but more informal. On the other hand, you can only foreclose your lien through a court proceeding, not arbitration. So, how do you keep your arbitration rights and at the same time preserve your lien rights? Simple. You bring a lawsuit to protect the lien and then immediately request the court to stay the court proceedings. When arbitration is done, you go back to court and turn the arbitration award into a judgment. Need a Lawyer? In this country, every individual has the statutory right to represent themselves. This means they can prepare all necessary papers, appear at hearings, and actually try the case. In so doing, the court considers you to be acting either in pro se or pro per. Before making this decision, consider the following factors: 1. You are a professional and thoroughly know the ins and outs of not only the construction industry but of the project itself. The best lawyer on his or her best day will probably not know more than 50% of what you know. 2. How is your public speaking abilities? If you are uncomfortable speaking to a group, you will even more uncomfortable in court or arbitration. You could be the sharpest wit in town but may not be able to present your arguments. Remember, appearing uncomfortable is perceived as having deficiencies in your case. People usually think that if you are not comfortable about your own facts, then they must not be that strong. Page 12 of 14

13 3. If the other side has a lawyer, you might want to think twice about representing yourself. You will certainly know the facts quite well, but you may be blindsided by legal technicalities. 4. You may also want to think twice if this is a really nasty and emotional case. In other words, if the other side is going for blood. Having a lawyer can shelter you from this emotional trauma. No matter how strong you are, lawsuits are taxing not only on your time, but on your physical and emotional energies. 5. If you have a good case in which you have complied with technicalities and performed good work, you are essentially engaging in a collection action. These actions are typically very simple because there are few defenses or defects alleged by the other side. It makes it easier for you to represent yourself because it is more a question of when and how much they will pay as opposed to whether you will win at all. 6. If you have a binding arbitration provision, you may consider representing yourself. These proceedings are much more informal and the arbitrator tends to give you more leeway. There are also fewer rules and not they are usually not quite as strict. 7. You could consider representing yourself but get advice along the way from a lawyer. It is much cheaper that way. On the other hand, the lawyer cannot watch over every move and you might slip up. Many times lawyers can also help you with preparing the forms, simply putting your name on the pleading. You can also bring in your lawyer at the end to actually try the case. 8. Judges and courts do not give legal advice. They only help you with what forms to use. However, clerks can be invaluable in steering you in the right direction as far as where to file, time limitations, the nature of the form or pleading, etc. But, remember when it comes right down to the ultimate advice, they cannot help you. 9. Judges usually treat you the same as an attorney which means they expect strict compliance with the rules. Although some judges give you more slack, don t count on it. Page 13 of 14

14 10. The biggest dilemma is whether you should hire an attorney for a smaller case, typically in the $5,000 to $10,000 range. You have to watch this because you may eat up that amount in attorney s fees. You never make money on lawsuits, only lawyers do. Try to settle for the best price you can get and move on. Prepared by: Thank you for your business. Page 14 of 14