Legal Question in Construction Law in California
Dealing with a mechanic's lien
I had an awning installed on an overhead wood frame over our outdoor deck. It was to cover the entire framework. On each end rain runoff would flow in to rain gutters. On three of the four sides the awning completely covers the frame as called for. On the fourth end - also a rain gutter end - it falls short of the frame by 3 inches. This will cause water to fall off inside the fascia and on to the floor of the deck as opposed to outside the fascia and in to a rain gutter.
The contractor claims this was necessary by the design that requires that end of the awning to be affixed to the frame via eyelets, grommets and lacing. He never told us there would be a gap.
The contract states that the awning would be 28' long but it is 27' 4''. A full 28' would have had covered the framework - no gap.
We stopped payment on the check. The contractor called and instead of suggesting a fix he threatened to file a lien.
We have received a preliminary notice of such.
Because we will no longer work with this contractor (we're contracting with a different installer) we are beyond negotiating.
What can we do to prevent the filing of the lien given a clear contractual violation? The contractor is aware of the measurement discrepency.
2 Answers from Attorneys
Re: Dealing with a mechanic's lien
If the work is sub-standard and not even fit for its purpose why should you be intimidated by a meritless lien? File for breach of contract and get an injunction preventing the filing of the lien. Call me directly at (619) 222-3504.
Re: Dealing with a mechanic's lien
Contractors are entitled to file liens, and they frequently do. There isn't much you can do to prevent filing the lien; I suppose you could pay under protest and then sue to recover the payment, but that's not something I recommend.
Mechanics liens are short-lived. They lose their legal effectiveness soon after being recorded unless suit is commenced thereon. Maybe your best bet is just to ride it out.
I can't offer a strong opinion on the merits of your defense to a suit to enforce the lien, i.e., that the work, in being 8 inches too short, was totally defective so that the contractor is entitled to little, if anything, as a final payment. I have no information on total contract price, prior progress payments, etc.
I think you should get bids of correcting the work before the rainy season begins, and take reasonable steps to mitigate your damage. If the contractor sues, I recommend a defense that includes a counter-attack in the form of a cross-complaint for damages (what it costs you to correct the mistakes).
If there is no suit filed against you, which is a good possibility, the lien will expire. You need also to consider whether it is economical to file your own suit; this will depend upon the numbers, how much to contractor is at fault, and whether he has deep enough pockets to pay any judgment you might get for his breach of contract.
Unless you are under some kind of external compulsion to keep your property free from all kinds of liens, I think the cost of "buying him off" to forestall the filing of a lien is too high in relation to the real-life consequences of having a contractor lien for a short while, which will expire if not sued upon, and where suit, if brought, could result in your cross-complaint and a big net loss for the contractor.
Again, I can't predict an outcome without more specifics, but this would be general advice for most property owners in a situation like this.
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