BILL ANALYSIS                                                                                                                                                                                                    Ó
                                                                  SB 424
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          Date of Hearing:   June 14, 2011
                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                     SB 424 (Rubio) - As Amended:  April 26, 2011
                    PROPOSED CONSENT (As Proposed to be Amended)
           SENATE VOTE  :   38-0
           
          SUBJECT  :   MECHANICS LIENS: DESIGN PROFESSIONALS
           KEY ISSUE  :  SHOULD DESIGN PROFESSIONALS' LIENS BE CONVERTIBLE TO 
          MECHANICS' LIENS?
           FISCAL EFFECT  :  As currently in print this bill is keyed 
          non-fiscal.
                                      SYNOPSIS
          
          This non-controversial bill would give design professionals 
          providing services for private works of improvement the ability 
          to convert a design professionals' lien into a mechanics' lien, 
          as specified.  
           SUMMARY  :  Modifies the relationship between design 
          professionals' and mechanics' liens on specified works of 
          improvement.  Specifically,  this bill  :   
          1)Authorizes a design professional to convert a design 
            professionals' lien into a mechanics' lien if the design 
            professionals' lien otherwise expires, the lien remains 
            partially or fully unpaid, and the mechanics' lien is recorded 
            within 30 days of the expiration of the design professionals' 
            lien. 
          2)Requires the recorded mechanics' lien to specifically state 
            that it is a converted design professional lien and that it 
            shall be recorded and enforced in the same manner as a 
            mechanics' lien. 
          3)Provides that the recorded mechanics' lien shall be effective 
            as of the date of recordation of this mechanics' lien and 
            shall be given priority pursuant to the provisions of Civil 
            Code Section 8450.
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          4)Exempts the converted design professionals' lien from the 
            preliminary notice required of a standard mechanics' lien.  
           EXISTING LAW  authorizes design professionals to record design 
          professional liens against project owners prior to construction 
          of a private work of improvement, authorizes design 
          professionals to record mechanics' liens against a private work 
          of improvement after construction has begun, and requires a 
          preliminary notice to be served, as specified, prior to the 
          recording of a mechanics' lien.  (Civil Code Sec. 8200 et seq.)
           COMMENTS  :  The California Constitution grants laborers and 
          materials suppliers a mechanics' lien on any property improved 
          by their labor or material.  The mechanics' lien law in the 
          Civil Code generally specifies the obligations, rights, and 
          remedies of those involved in a construction project.  
          Mechanics' liens are only available once construction begins on 
          the project.  While mechanics' liens are not available on public 
          works of improvement, existing law provides claimants on public 
          works projects with other statutory remedies, including stop 
          notices and claims against payment bonds.
          AB 1789 (Cortese, Ch. 1789, Stats. 1990) established the design 
          professionals' lien right.  Prior to that legislation, design 
          professionals, who typically provide design, engineering, or 
          planning on a work of improvement, could assert only a 
          mechanics' lien against the project owner to collect monies 
          owed.  Design professionals regularly provide services on works 
          of improvement prior to actual construction.  The mechanics' 
          lien does not apply to services rendered prior to construction.  
          Accordingly, the design professionals' lien was created through 
          AB 1789 to allow design professionals to recover monies owed 
          prior to construction.  This bill, sponsored by the American 
          Council of Engineering Companies of California, would provide 
          that a design professionals' lien could be converted into a 
          mechanics' lien, as specified. 
           Converting A Design Professionals' Lien Into A Mechanics' Lien.   
          This bill would authorize a design professional to convert a 
          recorded design professionals' lien into a mechanics' lien.  
          Existing law allows a design professional to record a lien prior 
          to construction on a work of improvement through a design 
          professionals' lien.  (Civ. Code Sec. 8300.)  Existing law also 
          allows a design professional to assert a lien after construction 
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          begins through a mechanics' lien.  (Civ. Code Sec. 8400.)  A 
          design professional can utilize either or both liens.
          However, the sponsor of this bill, American Council of 
          Engineering Companies of California, argues that private project 
          owners have discovered a loophole between these two liens.  If 
          the design professional provides services on a private work of 
          improvement but the owner fails to pay for services rendered by 
          the design professional, the design professional can assert a 
          design professionals' lien.  This lien expires as soon as 
          construction begins on the project or 90 days after the lien is 
          recorded and the design professional has not begun an 
          enforcement action on the lien.  If construction begins and the 
          design professional is still owed full or partial payment but 
          has not begun an enforcement action on the lien, then the design 
          professionals' lien expires and the owner has no obligation for 
          payment on this lien.  The design professional's next tool to 
          collect payment is through recording a mechanics' lien.  
          Prior to recording a mechanics' lien, existing law requires a 
          preliminary notice to be served within 20 days of commencing 
          services on the work of improvement.  (Civ. Code Sec. 8204(a).)  
          The design professional, because of the nature of his or her 
          work being performed prior to commencement of construction of 
          the work of improvement, is allowed to serve the preliminary 
          notice within 20 days of construction commencement.  (Civ. Code 
          Sec. 8204(b).)  The sponsor argues that, because the services 
          provided by design professionals are performed, in most 
          instances, prior to construction, the vast majority of design 
          professional contract claims are defeated by the timing 
          requirement of the preliminary notice for mechanics' liens.  
          After a project owner contracts for and receives design 
          services, it may be many months if not years after receiving 
          these services that construction commences on the project.  By 
          this time, the design professionals' lien would have expired, 
          and the design professional would have to keep tight watch over 
          the construction project to make sure to record a mechanics' 
          lien within 20 days of commencement of construction.  
          This bill still would require design professionals to 
          proactively assert their rights to payment, but their rights 
          would not be lost due to the timing loophole.  
           Removal Of Preliminary Notice Requirement For Converted 
          Mechanics' Lien  .  This bill would allow a design professional to 
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          convert a properly recorded design professionals' lien into a 
          mechanics' lien without serving the 20-day preliminary notice 
          required for mechanics' liens.  Existing law requires a notice 
          of demand to be served on the project owner ten days prior to 
          recording a design professionals' lien.  (Civ. Code Sec. 
          8304(c).)  Prior to recording a mechanics' lien, existing law 
          requires a preliminary notice to be served within 20 days of 
          commencing services on the work of improvement.  (Civ. Code Sec. 
          8204(a).)  The design professional, because of the nature of his 
          or her work being performed prior to commencement of 
          construction of the work of improvement, is allowed to serve the 
          preliminary notice within 20 days of construction commencement.  
          (Civ. Code Sec. 8204(b).)  The sponsor argues that the 
          preliminary notice usually required for a mechanics' lien would 
          not be necessary because the project owner already would have 
          had notice of the claim through the design professionals' lien. 
           Converted Lien Generally Could Not Be Asserted Against A New 
          Owner.   This bill would not permit a mechanics' lien to be 
          asserted against a new project owner with whom the design 
          professional did not contract.  
           Author's Technical Amendment.   To clarify an ambiguity, the 
          author helpfully proposes to amend the bill to add a new 
          subdivision clarifying that this section does not apply when a 
          lien expires pursuant to Civil Code section 8306(b)(2).
           REGISTERED SUPPORT / OPPOSITION  :
           Support 
           
          American Council of Engineering Companies of California 
          (sponsor)
          California Land Surveyors Association
           
            Opposition 
           
          None on file 
           Analysis Prepared by  :    Kevin G. Baker / JUD. / (916) 319-2334 
                                                                  SB 424
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