Q: When you are representing an owner who has a defective mechanics lien on their property, how often do you find the lien defective?
Many times. As an owner, you are protected from anyone putting an unmerited lien on your property. In the case of an unjustified lien, you have the ability to file certain affidavits with the county recorder stating your position. You also have an opportunity to provide a lienholder notice to commence suit whereby they are required to commence within a certain timeframe, or their lien goes away.
In Ohio, after closing on the purchase of commercial property, there is still a time period in order for a mechanic’s lien to be filed that would apply to that piece of property. However, that ceases if the buyer is buying a piece of property as their residence at that moment in time.
If there are no mechanic’s liens on that property and the buyer has fully paid the contractor according to the contract, no liens are going to apply to that residential property even if the subcontractors didn’t get paid.
Q: If you find that a lien is defective in some way and you are representing the subcontractor (the lienholder) how is it possible to fix the defect?
Just because they may have a defective lien doesn’t mean that their claim failed. You may also have a breach of contract or something of that nature where you may have preserved your rights to pursue the buyer. The filing of the mechanic’s lien is only security for that breach or failure to pay.
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