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By: Ken Coronel
A common, current instruction from client to lawyer: Get those mechanic’s liens off my property! In our present economic environment there are plenty of reasons why property owners need to keep their real property free of encumbrances. Unfortunately, it seems that more often than not, property owners find themselves in disputes with their contractors. The owner may withhold payment for work not completed or improperly done, while the contractor retaliates by recording a mechanic’s lien against the owner’s property.
If the mechanic’s lien has become stale, it is subject to being expunged on an expedited basis following the filing of a petition to expunge (invalidate) the lien. The lien becomes stale if a lawsuit is not filed to foreclose it within 90 days of the recording of the lien. Civil Code section 8460. In that event, under section 8480, the owner may petition the court for an order to release the property.
In terms of process, it starts when the owner gives the contractor a required written demand to remove the lien and send it per one of the prescribed service methods. The owner must then wait ten days before filing the petition. The owner should obtain a certified copy of the claim of lien as that will need to be attached to the petition.
When the petition is filed, it must be set for hearing by the court clerk within 30 days of being filed. The court may continue the hearing on a showing of good cause, but the court is required to rule and make any necessary orders on the petition not later than 60 days after the filing of the petition.
One question about the statute is whether it can also be used to expunge liens which are facially invalid due to another reason, e.g., the contractor is not licensed. The statute is limited in its language to stale claims, but on the one occasion this author asked the court to invalidate a lien that was clearly invalid for other reasons and the court obliged. I have known other attorneys to prevail on these motions, as well.
Finally, one other aspect of this procedure which is attractive to owners: the prevailing party is entitled to reasonable attorney’s fees. Civil Code section 8488.
For more information, please contact Ken Coronel at [email protected].