BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2009-2010 Regular Session AB 457 Assemblymember Monning As Amended May 11, 2009 Hearing Date: June 9, 2009 Civil Code ADM SUBJECT Mechanic's Lien; Claim of Lien DESCRIPTION This bill would require a mechanic's lienholder (generally a contractor, subcontractor, or material supplier) on a private work of improvement, after filing a complaint to foreclose on a mechanic's lien (also known as a claim of lien), to record in the proper county recorder's office a notice of the pendency of the proceedings. This bill would require that a lienholder serve the property owner with the mechanic's lien and a Notice of Mechanic's Lien in a form as specified. This bill would also provide that failure to serve the mechanic's lien and Notice of Mechanic's Lien as prescribed in the bill would render the mechanic's lien unenforceable as a matter of law. (This analysis reflects author's amendments to be offered in committee.) BACKGROUND The California Constitution grants laborers and materials suppliers a mechanic's lien on any property improved by their labor or material. The mechanic's lien law in the Civil Code generally specifies the obligations, rights, and remedies of those involved in a construction project. Mechanic's liens are only available on private works of improvement. Current law provides that a lienholder who has filed a complaint to foreclose on a mechanic's lien may record in the office of the proper county recorder a notice of pendency of the foreclosure action (a "lis pendens"). This bill would require the recording (more) AB 457 (Monning) Page 2 of ? in order to better provide notification to all parties interested in a construction project. Additionally, current law does not require that a mechanic's lien or notice of the lien be served on the property owner. This sometimes results in a property owner paying twice for the same labor or materials because the property owner pays the prime contractor, but the prime contractor does not pass on the payment to the appropriate subcontractor or material supplier. This bill would require the lienholder to serve both the mechanic's lien and a specified Notice of Mechanic's Lien on the property owner. This would give the property owner notice of their rights and available remedies. This bill is the result of consensus reached by stakeholders in private works of improvement. CHANGES TO EXISTING LAW 1. Existing law provides that mechanics, persons furnishing materials, artisans, and laborers of every class have a lien upon the property upon which they bestowed labor or furnished material for the value of such labor done and material furnished. (Cal. Const., art. 14, Sec. 3.) Existing law provides that contractors, subcontractors, material suppliers, and others who bestow labor, skill, supplies, or services to a private work of property improvement have a lien upon the property and establishes the procedures by which the lien may be recorded and enforced. (Civ. Code Sec. 3109 et seq.) Existing law provides that a mechanic's lien does not bind a property for longer than 90 days after recording of a claim of lien, unless the claimant commences an action to foreclose on the lien within the 90-day period. Existing law also provides that a lien may remain in force for a longer period of time if credit is given and notice of the fact and terms of the credit is recorded with the county recorder. However, even if credit is given, the lien may not remain in force longer than one year from the completion of the work of improvement if an action for foreclosure has not been commenced. If the claimant fails to commence an action to foreclose the lien within the specified time limitations, the lien is automatically null and void and of no further force and effect. (Civ. Code Sec. 3144.) Existing law provides that, after filing a complaint to foreclose on a mechanic's lien, the lienholder may record a AB 457 (Monning) Page 3 of ? notice of pendency (a "lis pendens") in the proper county recorder's office. Existing law provides that only from the time of the recording of such notice is a purchaser or encumbrancer of the affected property deemed to have constructive notice of the pendency of the action. (Civ. Code Sec. 3146.) This bill would require the plaintiff/lienholder, after filing a complaint to foreclose on a mechanic's lien, to record in the proper county recorder's office a notice of the pendency of the proceedings on or before 20 days after the filing of the mechanic's lien foreclosure action. 2. Existing law provides that a "claim of lien" means a written statement, signed and verified by the claimant that contains all of the following information: a statement of the claimant's demand after deducting all just credits and offsets; the name of the owner or reputed owner, if known; a general statement of the kind of labor, services, equipment, or materials furnished by the claimant; the name of the person by whom the claimant was employed or to whom the claimant furnished the labor, services, equipment, or materials; and a description of the site sufficient for identification. (Civ. Code Sec. 3084.) This bill would provide that a "claim of lien" or "mechanic's lien" means a written statement, signed and verified by the claimant that contains, in addition to the above five pieces of information required by Section 3084, an affidavit completed and signed by the person serving a Notice of Mechanic's Lien on a property owner or reputed property owner in a form as prescribed. (See Comment 2 for details of the Notice of Mechanic's Lien.) This bill would require that a mechanic's lien and the accompanying Notice of Lien be served on an owner or reputed owner by registered mail, certified mail, or first-class mail, evidenced by a certificate of mailing, postage prepaid, addressed to the owner or reputed owner at the owner's or reputed owner's residence or place of business address or at the address shown by the building permit on file. This bill would provide that, if the owner or reputed owner cannot be served, the notice may be given by registered mail, certified mail, or first-class mail to the construction lender or to the AB 457 (Monning) Page 4 of ? original contractor. This bill would provide that failure to serve the mechanic's lien and the Notice of Mechanic's Lien, as prescribed by the bill's provisions, would cause the mechanic's lien to be unenforceable as a matter of law. This bill would provide that its provisions would become operative on January 1, 2011. COMMENT 1. Stated need for the bill The sponsor, the Contractors State License Board, writes: Under existing law, mechanic's lien filing procedures do not include a requirement that the property owners be notified when a lien is placed against their property. Furthermore, many liens are not pursued and become void and unenforceable by operation of law, clouding the title of the property on which they were filed. Consequently, consumers are left with the responsibility of addressing the lien, but are frequently unaware of the options available to deal with the lien once it is discovered. Most notably, many property owners do not realize that an expired mechanic's lien can be expunged by court action, and often pay the lien claimant even though they have already paid the prime contractor for the services covered by the lien. The goal of AB 457 is to provide all parties involved in a construction-related transaction with an opportunity to deal with the relevant obligations in advance of the legal and financial issues that result from a mechanic's lien. Also, for those situations where a foreclosure suit is filed by a contractor, notice of the action should be available to all parties who are interested in the property in question. 2. Description of Notice of Mechanic's Lien; consumer protections This bill would prescribe the form and content of a Notice of Mechanic's Lien to be served on a property owner, along with the actual mechanic's lien. Also, the bill would provide that failure to serve the mechanic's lien and Notice of Mechanic's Lien would cause the lien to be unenforceable as a matter of AB 457 (Monning) Page 5 of ? law. The Notice of Mechanic's Lien would be required to include the following key information: upon the recording of a mechanic's lien, the property is subject to the filing of a legal action seeking a court-ordered foreclosure sale of the real property on which the lien has been recorded; the legal action must be filed with the court no later than 90 days after the date the mechanic's lien is recorded; the party identified in the lien may have provided labor or materials for improvement to the property and may not have been paid for those items; the notice is a required step in a foreclosure action for unpaid labor, materials, or improvements provided to the property; the foreclosure action may affect the ability to borrow against, refinance, or sell the property until the mechanic's lien is released; and because a lien affects the subject property, the owner may wish to contact the contractor, an attorney, or for more information to go to the Contractor's State License Board Web site. These provisions are intended to better protect consumer property owners when mechanic's liens are filed against their property in connection with a construction project. 3. Author's amendments The author proposes to delete the penalty of perjury language and instead insert language concerning the proof of service affidavit as follows: On page 3, delete lines 1 through 3, and insert: (6) A proof of service affidavit completed and signed by the person serving the Notice of Mechanic's Lien pursuant to subdivision (c). A "proof of service affidavit" is an affidavit of the person making the service, showing the date, place and manner of service and facts showing that such service was made in accordance with Section 3084. Such affidavit shall show the name and address of the person or persons upon whom a copy of the Mechanic's Lien and the Notice of Mechanic's Lien was served, and, if appropriate, the title or capacity in which he or she was served. On page 4, delete lines 31 through 32, and insert: AB 457 (Monning) Page 6 of ? (c )(1) The mechanic's lien and the Notice of Mechanic's Lien described in this section shall be served on the Owner or Reputed Owner. Service shall be made as follows: Support : California Chapters of the National Electrical Contractors Association; California Legislative Conference of the Plumbing, Heating, and Piping Industry; Air Conditioning Sheet Metal Association; Air-conditioning and Refrigeration Contractors Association; Building Industry Credit Association; American Fence Contractors Association, California Chapter; California Fence Contractors' Association; California Professional Association of Specialty Contractors; Engineering Contractors Association; Flasher/Barricade Association; Marin Builders Association; American Federation of State, County, and Municipal Employees; Plumbing-Heating- Cooling Contractors of California; one individual Opposition : None Known HISTORY Source : Contractors State License Board Related Pending Legislation : SB 189 (Lowenthal) would comprehensively revise California's mechanic's lien law. The bill is the result of recommendations from the California Law Revision Commission. The bill is currently in the Senate Judiciary Committee and is a two-year bill. Prior Legislation : SB 1691 (Lowenthal, 2008) would have revised, recasted, restated, and reorganized statutory mechanic lien law with the intent of improving its clarity and usability. This bill was vetoed. The veto message indicates it was not on the merits of the bill, but based upon the delay in the 2008-2009 State Budget and the governor's bill prioritization. Prior Vote : Assembly Judiciary Committee (Ayes 10, Noes 0) Assembly Floor (Ayes 76, Noes 0) ************** AB 457 (Monning) Page 7 of ?