Can I Prevent the Sale of Property I Hold A Lien On?
Full Question:
Answer:
A suit to enforce a lien may be filed by an architect in Oklahoma for a year after the lien was filed. It is possible to ask for injunctive relief to prevent the sale of the property subject to the lien. Injunctive relief consists of a court order called an injunction, requiring an individual to do or not do a specific action. It must be proven that without the injunction, harm will occur which cannot be remedied by money damages. To issue a preliminary injunction, the courts typically require proof that
(1) the movant has a ‘strong’ likelihood of success on the merits;
(2) the movant would otherwise suffer irreparable injury;
(3) the issuance of a preliminary injunction wouldn't cause substantial harm to others; and
(4) the public interest would be served by issuance of a preliminary injunction.
The following are OK statutes:
§ 42-172. Enforcement by Civil Actions — Limitations — Practice, Pleading
and Proceeding — Amendment of lien statement.
Any lien provided for by this chapter may be enforced by civil action
in the district court of the county in which the land is situated, and
such action shall be brought within one (1) year from the time of the
filing of said lien with the county clerk. The practice, pleading and
proceedings in such action shall conform to the rules prescribed by the
code of civil procedure as far as the same may be applicable; and in case
of action brought, any lien statement may be amended by leave of court in
furtherance of justice as pleadings may be in any matter, except as to
the amount claimed.
§ 34-28-7. Lien of architect or engineer. —
The lien, under §§ 34-28-1, 34-28-2 or 34-28-3, of any
architect or engineer, or of any immediate or mediate
subcontractor thereto, for work done in connection with the
construction, erection, alteration, or reparation, the
result of which is used therein, shall be valid and
enforceable under the provisions of this chapter if and
only if a notice of intention provided for in § 34-28-4, is
mailed and filed in accordance therewith by the architect,
engineer, or such subcontractor thereto, the mailing and
filing in the land evidence records to be before the later
of two hundred (200) days of the performance of the work or
ten (10) days after the actual and visible commencement, by
excavation or otherwise, of the construction, erection,
alteration or reparation.
§ 34-28-1. Improvements by consent of owner — Contracts barring
enforcement of lien against public policy. —
(a) Whenever any building, canal, turnpike, railroad, or
other improvement shall be constructed, erected, altered, or
repaired by oral or written contract with or at the oral or
written request of the owner, the owner being at the time the
owner of the land on which the improvement is located, or by
the husband of such owner with the consent of his wife, the
building, canal, turnpike, railroad, or other improvement,
together with the land, is hereby made liable and shall stand
subject to liens for all the work done by any person in the
construction, erection, alteration, or reparation of such
building, canal, turnpike, railroad, or other improvement,
and for the materials used in the construction, erection,
alteration, or reparation thereof, which have been furnished by
any person.
(b) A covenant, promise, agreement of understanding in, or in
connection with or collateral to, a contract or agreement relative
to the construction, alteration, repair, or maintenance of a
building, structure, appurtenance and appliance, including moving,
demolition and excavating connected therewith, purporting to bar
the filing of a notice of intention or the taking of any steps to
enforce a lien as set forth in this chapter is against public
policy and is void and unenforceable. This section shall not
preclude a requirement for a written waiver of the right to file a
mechanic's lien executed and delivered by a contractor,
subcontractor, material supplier, or laborer simultaneously with
or after payment for the labor performed or the materials
furnished has been made to such contractor, subcontractor,
material supplier, or laborer.
§ 34-28-2. Improvements by consent of tenant or lessee. —
Whenever any building, canal, turnpike, railroad, or other
improvement shall be constructed, erected, altered, or repaired by
oral or written contract with or at the oral or written request of
any lessee or tenant thereof, or by the husband of the lessee or
tenant with the consent of his wife, the interest and title of the
lessee or tenant in the building, canal, turnpike, railroad, or
other improvement, and in the land on which the improvement is
located, shall stand subject to liens for all the work done by any
person in the construction, erection, alteration, or reparation of
the building, canal, turnpike, railroad or other improvement, and
for the materials used in the construction, erection, alteration,
or reparation thereof, which have been furnished by any person,
but not the interest or title of the landlord of such lessee or
tenant, unless the consent in writing of the landlord is first
obtained, assenting to the construction, erection, alteration, or
reparation.
§ 34-28-3. Improvements by consent of owner of less than freehold. —
Whenever any building, canal, turnpike, railroad, or other
improvement shall be constructed, erected, altered, or
repaired by oral or written contract with or at the oral or
written request of the owner, the owner being at the time less
than sole owner of the fee simply (including, without restricting
the foregoing, a life tenant, tenant in common, joint tenant, and
tenant by entirety), or by the husband of the owner with the
consent of his wife (and, in the case of a tenant by entirety, no
lien shall be had either against the husband's or the wife's
interest in the improvement unless the consent is given), the
building, canal, turnpike, railroad, or other improvement,
together with the title and interest of the owner in the land on
which the improvement is located, shall stand subject to liens for
all the work done by any person in the construction, erection,
alteration, or reparation of such building, canal, turnpike,
railroad, or other improvement, and for the materials used in the
construction, erection, or reparation thereof, which have been
furnished by any person, but not the interest or title of any
other owner of an estate in such land, unless the consent in
writing of the other owner is first obtained, assenting to the
construction, erection, alteration, or reparation.
34-28-4. Notice of intention to claim lien. —
(a) Except as provided in
section 34-28-7, any and all liens claimed or that could be claimed under
sections 34-28-1, 34-28-2 or 34-28-3 shall be void and wholly lost to any
person claiming under those sections unless the person shall, before or within
two hundred (200) days after the doing of such work or the furnishing of such
materials, mail by prepaid registered or certified mail, in either case return
receipt requested, a notice of intention, hereinafter described, to do work or
furnish material, or both, together with a statement that the person so
mailing may within two hundred (200) days after the doing of the work or the
furnishing of the materials, file a copy of such notice of intention in the
records of land evidence in the city or town in which the land generally
described in such notice of intention is located and a further statement that
the mailing of the notice of intention and the filing of the copy will perfect
a lien of the person so mailing against the land under and subject to the
provisions of this chapter, to the owner of record of the land at the time of
the mailing, or, in the case of a lien against the interest of any lessee or
tenant, to the lessee or tenant, the mailing to be addressed to the last known
residence or place of business of the owner or lessee or tenant, but if no
residence or place of business is known or ascertainable by the person making
the mailing by inquiry of the person with whom the person making the mailing
is directly dealing or otherwise, then the mailing under this section shall be
to the address of the land, and also shall before or within two hundred (200)
days after the doing of the work or the furnishing of the materials file a
copy of the notice of intention in the records of land evidence in the city or
town in which the land generally described in the notice of lien is located.
The mailing of the notice of intention and the filing of the copy in the land
evidence records together with the mailing of another copy thereof as
hereinbelow provided shall perfect, subject to other sections of this chapter,
the lien of the person so mailing and filing as to work done or materials
furnished by the person during the two hundred (200) days prior to the
filing and thereafter, but not as to work done or
materials furnished by the person before the two hundred (200) days prior to
the filing, any lien for which shall be void and wholly lost. In the event that the notice of intention, having been mailed,
shall be returned to the person mailing the notice, not having been delivered
for any reason, the lien of the person so mailing shall be void and wholly
lost, notwithstanding any other provision of this section, unless such person
shall, within thirty (30) days after the return of the notice of intention,
and in no event more than two hundred (200) days after the mailing of the
notice, file the notice together with the envelope in which the notice was
returned, in the place and manner and with the consequences hereinbefore
provided for the filing of a copy of the notice of intention, and the filing
shall be in lieu of any filing required at any other time under this section.
(b) The notice of intention shall be executed under oath and shall
contain:
(1) The name of the owner of record of the land at the time of the
mailing, or in the case of a lien against the interest of any lessee or
tenant, the name of the lessee or tenant, and the mailing address of the owner
or lessee, the name and address to be located at the upper left hand corner of
the notice, in addition to the text of the notice, as described in
subsection (c);
(2) A general description of the land sufficient to identify it with
reasonable certainty, including, for example only, street name and number, if
available;
(3) A general description of the nature of the work done or to be done, or
of the materials furnished, or to be furnished, or both, and the approximate
value thereof as of the date of the notice;
(4) The name and address of the person or persons for whom directly the
work has been done or is to be done, or to whom directly the materials have
been furnished or are to be furnished;
(5) The name and address of the person mailing the notice and the name of
the individual person or persons whose signature will bind the person so
mailing on all matters pertaining to the notice or any lien claimed
thereunder, or release thereof.
(6) A statement that the person mailing the notice has not been paid for
the work done or materials furnished or both.
(c) The notice may be in substantially the following form:
__________________________
(Name of owner of record/Lessee)
_______________________________
(Address of owner/Lessee)
NOTICE OF INTENTION TO DO WORK OR FURNISH MATERIALS, OR BOTH
All persons are hereby notified that the undersigned has within the two
hundred (200) days prior to the mailing hereof done work, furnished materials,
or both, and/or intends to do so in the future (cross out inappropriate
words), in the construction, erection, alteration, or preparation of an
improvement on land described as follows: (here insert description) and that
the land is owned by or leased to (here insert name of owner or lessee or
tenant). The nature of the work being done or materials being furnished is as
follows: (here insert general description of the nature of the work or
materials, or both) and is being done for or furnished to (here insert name of
person or persons for whom directly the work is being done or to whom directly
the materials are being furnished), whose address is (here insert address).
The approximate value of said work or materials is, as of the date of the
notice, $(include amount), itemized as follows: and the undersigned has not
been paid for the work or materials or both; The undersigned authorizes (here
insert name or names) to act or sign documents in behalf of the undersigned in
all matters pertaining to this notice, or any lien claimed hereunder, or
release thereof. You are hereby informed that the undersigned may within two
hundred (200) days of the performance of the work or furnishing of the
materials, file in the records of land evidence of the city or town of (here
insert name of city or town) a copy of this notice of intention to do work or
furnish materials. The filing of the notice of intention, together with this
mailing, will perfect a lien against the land described herein, under and
subject to the provisions of the Rhode Island Mechanics' Lien Law. ____
(Name and address of person filing notice)
NOTORIZATION CLAUSE
_______________________________________
Signed and sworn before me this____day of ____,
Notary Public
My Commission Expires:
