Legal Question in Construction Law in California

Re: construction lien

Almost certainly not. Maybe you would have been entitled to a mechanics lien at one time based upon being a supplier to a work of improvement, but since you were not in direct privity of contract with the owner, you would have had to file the 20-day preliminary notice, and having failed to do that you cannot now perfect a lien against the properties that benefitted from your services.

I should add that I have not studied whether a supplier of software is entitled to a lien in the same way a supplier of 2-by-4s or of backhoes is, but I see little reason to say one is eligible but the other isn't. Maybe another construction-law savvy lawyer will jump in with further comments and observations.

Meanwhile consider this answer an educated guess and not from an authority on the subject.

Re: construction lien

If you have a judgment you can. Obviously you haven't even begun a lawsuit yet. I wouldn't wait any longer. Feel free to contact me if you need counsel to help you.

Re: construction lien

You may not place a lien on the home and if you did file a mechanics lien then you could be liable for damages and attorney fees if the developer must file a petition to have it removed. (see Civil Code 3154)

It is questionable whether you could have filed a lien under this circumstance even assuming that you had filed a proper 20 day preliminary notice and not missed the filing deadlines because this work is probably not classified as a "work of improvement".

You may not file a lien because:

1. It appears that you did not file a proper 20 day preliminary notice as required under Civil Code 3097 and you do not have a direct contract with the owner of the property so that you do not have "privity of contract" with the real property owner.

2. The time period to file a mechanics lien has elapsed. Even assuming you had filed a proper 20 day preliminary notice as required, you must file a mechanics lien as a subcontractor (assuming there was no notice of completion filed by the developer which gives you the maximum time to file) within 90 days after completion of the work of improvement or within 150 days after continuous cessation of work (Civ Code 3086).

3. The work is probably not a "work of improvement" A "work of improvement" is something that gives permanent value to the property and not generally not a temporary item. A work of improvement generally includes, but is not limited to, the construction, alteration or repair of a building, the seeding or planting of land, the filling or grading of property, and the demolition of buildings (Civ Code 3306). However, installation of temporary fencing is not a "work of improvement" under Civ Code 3106 (See Lambert Steel 16CA4th 1034). Your work would probably be classified as temporary in nature similar to the temporary fence case and thus not a "work of improvement" because it is a software computer program or hardware computer which is only at the site for a temporary use to sell the homes.

Of course even though you may not file a mechanics lien that does not foreclose your right to seek payment from the person or company you contracted with through a breach of contract or other causes of action(even if it is a verbal contract).

Should you seek representation in this matter please review my profile and contact me. Our firm represents all of California. If the amount is less than $7500.00 then you may think about going to small claims court but be cautioned that if you lose as a plaintiff in small claims court you generally may not appeal.

Thanks for your question.