Can I File a Lien in Nebraska for Unpaid Wiring Work?
Full Question:
Answer:
A lien is the right to retain the lawful possession of the property of another until the owner fulfills a legal duty to the person holding the property, such as the payment of lawful charges for work done on the property. The right of lien generally arises by operation of law, but in some cases it is created by express contract. Liens that arise in construction situations include construction liens, contractor liens, mechanic liens, attorney liens, architect liens and other liens applicable in your state. By virtue of express statutes in most states, mechanics and material men or persons who furnish materials for the erection of houses or other buildings, are entitled to a lien or preference in the payment of debts out of the houses and buildings so erected and to the land, to a greater or lessor extent, on which they are erected. In some states, a claim must be filed in the office of the clerk of the court or a suit brought within a limited time. In some states no lien is created unless the work done or the goods furnished amount to a certain specified sum, while in others there is no limit to the amount. In some states, contractors and subcontractors must notify the property owner prior to filing a lien, but in other states such liens can be filed without any notification to the owner.
The priority of liens on a construction project does not depend upon the time of completion of the particular job, but rather everything relates back to the first visible commencement of the work. Therefore, during the entire work of construction, the owner must obtain lien releases or waivers of lien from each subcontractor and material supplier. Without these waivers or releases the real estate is subject to liens of all the subcontractors, even if the general contractor, though paid in full, fails to pay the subcontractors. Lien claimants who are contractors or subcontractors are protected under this legal doctrine because all their materials and labor are "buried" in the real estate, having become part of it. Unlike mortgage liens, however, the liens of these claimants cannot force a foreclosure. People having a home built can require contractors and subcontractors to provide lien releases or waivers as part of a written project contract. The contract can mandate a lien release be issued before the contractor receives payment for services, in which case it is called a lien waiver. If payments are made to a general contractor in stages for work performed by subcontractors, the homeowner can obtain lien releases from the various subcontractors as their part of the project is completed. Sometimes, construction loan documents drafted by a bank may indicate that the bank will obtain lien releases, but the bank may do this solely for its own benefit. Therefore, the property owner's requiring lien releases should be clearly stated and independent of any agreement made by or with the bank.
Although the terms lien waiver and lien release seem to be interchangeable, a release demonstrates completion and payment, so as to prove any claim has been satisfied, while a waiver demonstrates a relinquishment of a known right. Waivers are typically obtained prior to commencement of any work, whereas releases are subsequently obtained. Waivers of lien must be in writing, give a sufficient description of the real estate, and be signed by the one with authority to file or claim a lien. No payment needs to be made in advance if the subcontractor agrees to release the land from the lien and rely only on the credit of the owner or general contractor for payment of the debt.
The filing requirements and statutes of limitation for liens vary according to the law of each state. Liens can generally be removed by the payment of the amount owed. This payment can occur at any time up to and including the stage at which the closing documents for the sale of the property are signed. Liens can be discharged after a certain length of time. Therefore, if a property owner is in no hurry to sell the property, and the lien holder is not seeking to foreclose, it may make sense to do nothing and wait until the lien expires. If the lien is not renewed, the cloud on the title will no longer exist. If a person pays and satisfies a lien in order to have it discharged, a written, legally sufficient release or satisfaction must be obtained and recorded in the appropriate government office to clear title to the property.
In Neraska, a prelien notice may be served on the owner any time after commencing work and the lien must be filed with in 120 days of completing work. There is a 2 year period after the lien is filed in which to enforce the lien. It is also possible to pursue a claim in court for money damages based on contract remedies if a mechanics lien isn't filed.
The following are Nebraska statutes:
52-131 Construction lien; existence; amount; priority;
enforcement.
(1) A person who furnishes services or materials pursuant to a real
estate improvement contract has a construction lien, only to the
extent provided in the Nebraska Construction Lien Act, to secure the
payment of his or her contract price.
(2) A lien arises under the act only if the claimant records a lien
within the time specified by section 52-137.
(3) Real estate to which a construction lien attaches is specified by
section 52-133, and limitations on the existence of a lien for
materials are specified by section 52-134.
(4) The amount of a claimant's lien is specified by section 52-136.
The content of the notice of the right to assert a lien to be given to
the owner under section 52-136 is specified by section 52-135.
(5) The priority of a claimant's lien as against other
construction-lien claimants is specified in section 52-138, and
priority as against claimants other than construction-lien claimants
is specified in section 52-139.
(6) Foreclosure of a lien under the act is governed by section 52-155,
and the time within which an action to foreclose must be brought by
section 52-140.
52-137 Attachment and enforcement of lien; recording required;
time limitation; attachment, when.
(1) A claimant's lien does not attach and may not be enforced
unless, after entering into the contract under which the lien arises
and not later than one hundred twenty days after his or her final
furnishing of services or materials, he or she has recorded a lien.
(2) If a lien is recorded while a notice of commencement is effective
as to the improvement in connection with which the lien arises, the
lien attaches as of the time the notice is recorded, even though
visible commencement occurred before the notice is recorded. A notice
of commencement is not effective until recording and, after recording,
is effective until its lapse. A notice of commencement lapses at the
earlier of its expiration as provided in subsection (2) of
section 52-145 or the date it is terminated by a notice of termination
as provided in section 52-146.
(3) If a lien is recorded while there is no recorded notice of
commencement covering the improvement in connection with which the
lien arises, the lien attaches at the earlier of visible commencement
of the improvement or the recording of the lien, but if visible
commencement has occurred before or within thirty days after the lapse
of the last notice of commencement covering the improvement:
(a) The lien attaches at the time the lien is recorded if the lien is
recorded within thirty days after lapse of the last effective notice
of commencement; or
(b) The lien relates back to and attaches thirty-one days after the
termination date if the lien is recorded more than thirty days after
lapse of the last effective notice of commencement.
(4) If new construction is the principal improvement involved and the
materials, excavation, preparation of an existing structure, or other
preparation are readily visible on a reasonable inspection of the real
estate, visible commencement occurs when:
(a) Materials are delivered to the real estate to which the lien
attaches preparatory to construction;
(b) Excavation on the real estate to which the lien attaches is begun;
or
(c) Preparation of an existing structure to receive the new
construction, or other preparation of the real estate to which the
lien attaches, is begun.
(5) In all cases not covered by subsection (4) of this section the
time visible commencement occurs is to be determined by the
circumstances of the case.
52-147 Lien recording; contents.
(1) A claimant may record a lien which shall be signed by the
claimant and state:
(a) The real estate subject to the lien, with a description thereof
sufficient for identification;
(b) The name of the person against whose interest in the real estate a
lien is claimed;
(c) The name and address of the claimant;
(d) The name and address of the person with whom the claimant
contracted;
(e) A general description of the services performed or to be performed
or materials furnished or to be furnished for the improvement and the
contract price thereof;
(f) The amount unpaid, whether or not due, to the claimant for the
services or materials or if no amount is fixed by the contract a good
faith estimate of the amount designated as an estimate; and
(g) The time the last services or materials were furnished or if that
time has not yet occurred, an estimate of the time.
(2) The name given in the lien in accordance with the requirement of
subdivision (1)(b) of this section may be the name of the contracting
owner or the name of the record holder of the contracting owner's
interest at the time of recording the lien.
