How Do I Collect Money For Work Performed in Massachusetts?
Full Question:
Answer:
It is possible a breach of contract claim or mechanics lien may be filed. Contracts are agreements that are legally enforceable. A contract is an agreement between two parties that creates an obligation to do or refrain from doing a particular thing. The purpose of a contract is to establish the terms of the agreement by which the parties have fixed their rights and duties. An oral contract is an agreement made with spoken words and either no writing or only partially written. An oral contract may generally be enforced the same as a written agreement. However, it is much more difficult with an oral contract to prove its existence or the terms. Oral contracts also usually have a shorter time period within which a person seeking to enforce their contract right must sue. A written contract generally provides a longer time to sue than for breach of an oral contract. Contracts are mainly governed by state statutory and common (judge-made) law and private law. Private law generally refers to the terms of the agreement between the parties, as parties have freedom to override many state law requirements regarding formalities of contracts. Each state has developed its own common law of contracts, which consists of a body of jurisprudence developed over time by trial and appellate courts on a case-by-case basis.
An unjustifiable failure to perform all or some part of a contractual duty is a breach of contract. A legal action for breach of contract arises when at least one party's performance does not live up to the terms of the contract and causes the other party to suffer economic damage or other types of measurable injury. A lawsuit for breach of contract is a civil action and the remedies awarded are designed to place the injured party in the position they would be in if not for the breach. Remedies for contractual breaches are not designed to punish the breaching party.
A lien is a claim to property for the payment of a debt, typically one connected to the property. It 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. There are two kinds of liens; particular and general. When a person claims a right to retain property, due to money or labor invested in that property, it is a particular lien. Liens may arise by express contract; from implied contract, as from general or particular usage of trade; or by legal relation between the parties, such as created with common carriers and inn keepers. In certain circumstances, the lien holder may foreclose on the property if the debt is not paid in full.
To create a valid lien, it is essential that the party claiming a lien should have the absolute property or ownership of the thing or, at least, a right to vest it; that the party claiming the lien should have an actual or constructive, possession, with the assent of the party against whom the claim is made; that the lien should arise upon an agreement, express or implied and not be for a limited or specific purpose that contradicts the express terms or the clear, intent of the contract. In certain circumstances, the lien holder may foreclose on the property if the debt is not paid in full. 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.
There are several types of liens, all of which could cloud the title and prevent the seller from conveying marketable title to the buyer. A judgment lien is created when a court grants a creditor an interest in the debtor's property, based upon a court judgment. A judgment lien can be filed if an actual judgment in a lawsuit is obtained from a court. Such cases include failure to pay a debt, including credit cards, bank loans, or deficiency judgments on repossessed vehicles. In some circumstances, judgments can be enforced by sale of property until the amount due is satisfied. A plaintiff who obtains a monetary judgment is termed a "judgment creditor." The defendant becomes a "judgment debtor." secure payment of the claim to the injured party. After the judgment creditor places a lien upon the attached property, the next step in the collection process is to conduct a sale of the attached property to satisfy the judgment debt.
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 order to file a mechanics lien for labor performed to improve, construct, or repair property in Massachusetts, the answer will depend in part on the time periods involved. A lien must be filed not later than the earliest of:
(i) sixty days after filing or recording of the notice of substantial completion, or
(ii) ninety days after filing or recording of the notice of termination, or
(iii) ninety days after such person or any person by, through or under him last performed or furnished labor or materials or both labor and materials.
A prelien notice may be required to be sent, depending on whether there is a direct contract with the owner or general contractor. A person without a written contract who performs personal labor on the construction project is not required to file a prelien notice. In some cases, a letter of intent to file a lien will prompt a person to pay. If other liens are filed before yours, such as liens for creditors who win a court judgment, they will be entitled to priority. Creditors who have priority are entitled to be paid ahead of junior creditors, and the junior creditors will only collect if there are assets left over after creditors with priority are paid.
The following are MA statutes:
G.L.c. 254, § 2. Written contract; notice.
Section 2. A person entering into a written contract with the owner of
any interest in real property, or with any person acting for, on behalf
of, or with the consent of such owner for the whole or part of the
erection, alteration, repair or removal of a building, structure, or
other improvement to real property, or for furnishing material or rental
equipment, appliances, or tools therefor, shall have a lien upon such
real property, land, building, structure or improvement owned by the
party with whom or on behalf of whom the contract was entered into, as
appears of record on the date when notice of said contract is filed or
recorded in the registry of deeds for the county or district where such
land lies, to secure the payment of all labor, including construction
management and general contractor services, and material or rental
equipment, appliances, or tools which shall be furnished by virtue of
said contract. Said notice may be filed or recorded in the registry of
deeds in the county or registry district where the land lies by any
person entitled under this section to enforce a lien, and shall be in
substantially the following form:
Notice is hereby given that by virtue of a written contract dated
___________, between ______________, owner, and ____________,
contractor, said contractor is to furnish or has furnished labor and
material or rental equipment, appliances or tools for the erection,
alteration, repair or removal of a building, structure, or other
improvement on a lot of land or other interest in real property described
as follows:
(INSERT DESCRIPTION)
Such person may file or record the notice of contract at any time after
execution of the written contract whether or not the date for performance
stated in such written contract has passed and whether or not the work
under such written contract has been performed, but not later than the
earliest of:
(i) sixty days after filing or recording of the notice of
substantial completion under section two A; or
(ii) ninety days after
filing or recording of the notice of termination under section two B; or
(iii) ninety days after such person or any person by, through or under
him last performed or furnished labor or materials or both labor and
materials.
G.L.c. 254, § 5. Enforcement of lien; procedure.
Section 5. A lien upon land for the erection, alteration, repair or
removal of a building or other structure or other improvement of real
property or a lien established under section seventy-six of chapter
sixty-three, section six of chapter one hundred and eighty-three A, or
subsection (a) of section twenty-nine of chapter one hundred and
eighty-three B shall be enforced by a civil action brought in the
superior court for the county where such land lies or in the district
court in the judicial district where such land lies. The plaintiff shall
bring his action in his own behalf and in behalf of all other persons in
interest who shall become parties. An attested copy of the complaint,
which shall contain a brief description of the property sufficient to
identify it, and a statement of the amount due, shall be filed in the
registry of deeds and recorded as provided in section nine within thirty
days of the commencement of the action, or such lien shall be dissolved.
All other parties in interest may appear and have their rights determined
in such action, and at any time before entry of final judgment, upon the
suggestion of any party in interest that any other person is or may be
interested in the action, or of its own motion, the court may summon such
person to appear in such cause on or before a day certain or be forever
barred from any rights thereunder. The court may in its discretion
provide for notice to absent parties in interest. The terms "party in
interest" and "person in interest", as used in this chapter, shall
include mortgages and attaching creditors.