CONSTRUCTION LIEN LITIGATION

Construction lien litigation is usually between owners of buildings and contractors or subcontractors, however, litigation can also take place between contractors themselves. It is important to know that this form of litigation begins with the construction lien and there are prerequisites to obtaining one. If the subcontractor is not hired directly by the owner then a notice to owner must be served on the owner (and contractor) within 45 days of beginning the work. This is to let the owner know who the subcontractors are and that the subcontractor is performing work on the owner’s property. If the subcontractor is not paid then he or she can obtain a lien on the property to enforce its right to payment. The contractor is usually in privity (has a direct contract) with the owner and is not required to serve a notice to owner.

The owner can require through notice that the lien holder file its action within 60 days but without such notice the lien holder has a year in which to file an action to enforce the lien. Discovery occurs as in any other civil action and at some point one of the parties will notice the action for trial. The prevailing party is entitled to attorney’s fees.