Legal Question in Construction Law in California

Re: lien law

Assuming that the subcontractor does not have a direct contract with yourself so that he is in privity of contract with you then he can not file a mechanics line more than 30 days after a notice of completion of notice of cessation was filed (Civil Code Sec 3116.)

The timing rules for filing a mechanics lien by someone who is not an "original contractor" (in contract with yourself) are as follows:

All mechanics' liens claimants other than original contractor.

(1) If no notice of completion or cessation has been recorded by the owner: 90 days after completion of the work of improvement [Civ. Code � 3116].

(2) If a notice of completion or notice of cessation has been recorded: 30 days after the recording of either notice [Civ. Code � 3116].

(3) Works of improvement made pursuant to two or more original contracts each covering a particular portion of a work of improvement: 30 days after the owner has recorded a notice of completion following completion of any one of the original contracts [Civ. Code � 3117].

First I would check with the Contractors State Board and make sure the subcontractor is properly licensed and was properly licensed at all times when he claims he worked on your property. California Business and Professions Code �7031 prohibits a contractor from suing to recover compensation unless the contractor was duly licensed �at all times during the performance of [the] act or contract." Also in the case of MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Company, Inc., 36 Cal.4th 412 (2005). the CA Supreme Court ruled that if the contractor lets his license lapse during construction "at any time" so that he is not "properly licensed" (Licensed and in the correct classification) at all times that the contractor can not recover any damages.

Next, I suggest you have an attorney file a petition under Civ Code 3154(g) to have the lien removed because it was not timely filed as required. Our office routinely handles these matters should you need assistance.

If a false or untimely mechanics lien has been filed on your property then you can ask to have it removed and file a petition to remove it in court and recover up to $2000.00 in attorney fees (Ca Civ Code 3154)

In addition if a false lien was filed then the lien claimant subcontractor may forfeit all of his lien rights. (Ca Civ Code 3118)

I hope this helps and thank you for your question.

Re: lien law

For the most part, I agree with Jim Schaefer. A sub, not in direct contract with you, has 30 days to record a lien after a Notice of Completion is recorded. (This assumes that you didn't record the Notice early.)

I don't agree, however, that you can use CC 3154 to get rid of the lien just yet. A curiosity of that section is that you have to wait to bring this petition until at least 90 days have passed from the date of the lien recording. Another requirement to bringing this petition is that the contractor also failed to file suit to foreclose the lien.

If you want to get rid of the lien before the 90 days has passed, you'd have to seek an injunction. That procedure is a lot more expensive than the CC 3154 summary proceeding. Plus, unless your contract provides for attorney's fees to the prevailing party, you don't have a right for reimbursement of your attorney's fees.

My usual suggestion, unless there's some compelling reason to get the lien off right now, is to wait the 90 days and then do the 3154 procedure.