Copyright © 2006, Judicial Branch, State of Connecticut. All rights reserved.

 

 

 

Mechanics’ Liens

in Connecticut

A Guide to Resources in the Law Library

 

·         “. . .  the important purpose of mechanic's lien statutes to provide an inexpensive and simple method for material suppliers and contractors to secure the value of the services or materials that they have added to the property.” Red Rooster Construction Co. v. River Associates, 224 Conn. 563, 573,  620 A.2d 118 (1993).

·         “Materialman's and mechanic's lien statutes award an interest in real property to workers who have contributed their labor, and to suppliers who have furnished material, for the improvement of real property. Since neither the labor nor the material can be reclaimed once it has become a part of the realty, this is the only method by which workmen or small businessmen who have contributed to the improvement of property may be given a remedy against a property owner who has defaulted on his promise to pay for the labor and the materials.” Connecticut v. Doehr, 501 U.S. 1, 28, 111 S.Ct. 2105, 115 L.ed.2d 1 (1991).

·         “A mechanic's lien is of course not an agreement or contract between parties but rather a lien upon real estate which the plaintiff seeks to take by force of law and eventually to foreclose.” Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 802-803, 734 A.2d 112 (1999).” City Iron Works, Inc. v. Frank Badsteubner Post,  22 Conn. Supp. 230, 167 A.2d 462 (1960).

·          “A ‘mechanic’ is normally envisioned as a skilled worker who brings about a result by the use of tools, machines or equipment.”  Nickel Mine Brook Assoc. v. Joseph E. Sakal, P.C., 217 Conn. 361, 368, 585 A.2d 1210 (1991).

·         “Because the mechanic's lien is a creature of statute, a lienor must comply with statutory requirements in order to perfect his claim.” Ibid., p. 553.

·         “The purpose of the statute is to give a contractor security for labor and material. The statute must be construed in such a way as to render the lien it provides for of some value . . . . We cannot, however, depart from the plain meaning of the words of the statute . . . . If the materials are not furnished, and the work is not done, in the construction, raising, removal or repairs of a building, there can be no lien.” Stone v. Rosenfield, 141 Conn. 188, 191, 104 A.2d 545 (1954).

·         “Any mechanic's lien may be foreclosed in the same manner as a mortgage.” Conn. Gen. Stats. §  49-33(i) (2005).

·         “A mechanic's lien shall not continue in force for a longer period than one year after the lien has been perfected, unless the party claiming the lien commences an action to foreclose it, by complaint, cross-complaint or counterclaim, and records a notice of lis pendens in evidence thereof on the land records of the town in which the lien is recorded within one year from the date the lien was recorded or within sixty days of any final disposition of an appeal taken in accordance with section 49-35c, whichever is later. Each such lien, after the expiration of the one-year period or sixty-day period, as the case may be, without action commenced and notice thereof filed as aforesaid, shall be invalid and discharged as a matter of law. An action to foreclose a mechanic's lien shall be privileged in respect to assignment for trial. With respect to any such lien which was validated in accordance with the provisions of section 49-37a, the one-year period or sixty-day period, as the case may be, shall toll from the date of the validation.” Conn. Gen. Stats. § 49-39 (2005).

 

Sections in this chapter:

§ 1   Basic Requirement for mechanic’s lien in Connecticut

§ 2   Mechanic’s lien certificate

§ 3  Notice and service of mechanic’s lien

§ 4   Discharging or reduction of a mechanic’s lien

§ 5   Waiver of a mechanic’s lien

§ 6   Dissolution of a mechanic’s lien by substitution of bond

§ 7 Foreclosure of mechanic’s lien

§ 8   Glossary of mechanic's lien terms 

 

 

Tables in this chapter:

Table 1 Rights of Subcontractor in Mechanics’ Liens

Table 2 Mechanic's Lien Certificate

Table 3  Service of notice on owner or original contractor

 

Figures in this chapter

Figure 1  Application for discharge or reduction of mechanic's lien

 


Section

Basic Requirements for Mechanic’s Lien in Connecticut

A Guide to Resources in the Law Library

 

 

SCOPE:

Bibliographic resources relating to the basic requirements for filing a mechanic’s lien in Connecticut.

 

DEFINITIONS:

·         “A mechanic's lien is a creature of statute and gives a right of action which did not exist at common law.” Diamond National Corporation v. Dwelle, 164 Conn. 540, 543, 325 A.2d 259 (1973).

·         WHO MAY FILE: “If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land . . . .” Conn. Gen. Stats. § 49-33(a).

·         REQUIRED: “the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.” Conn. Gen. Stats. § 49-33(a). (emphasis added)

·          CLAIM: “is a lien on the land, building and appurtenances or lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then on the plot of land . . . .” . (emphasis added)

·         WHERE TO FILE: “A mechanic's lien is not valid unless the person performing the services or furnishing the materials . . . lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land . . . ..”

·         PRECEDENCE: “the claim takes precedence over any other encumbrance originating after the commencement of the services, or the furnishing of any such materials, subject to apportionment as provided in section 49-36.” Conn. Gen. Stats. § 49-33(b). (emphasis added)

·         Subcontractors: “A mechanic's lien shall not attach to any such building or its appurtenances or to the land on which the same stands or to any lot or to any plot of land, in favor of any subcontractor to a greater extent in the whole than the amount which the owner has agreed to pay to any person through whom the subcontractor claims subject to the provisions of section 49-36.” Conn. Gen. Stats. § 49-33(c).

 

STATUTES:

 

·         Conn. Gen. Stat. (2005). 

Chapter 847. Mortgages and liens

§ 49-33. Mechanic’s lien. Precedence. Rights of subcontractors

§ 49-34. Certificate of lien to be recorded and notice given to owner

 

LEGISLATIVE:

·         Daniel Duffy, Principal Analyst, Office of Legislative Research, Connecticut General Assembly, Filing Mechanic’s Lien, OLR Report No. 2006-R-0063 (January 20, 2006).

“You asked for the requirements for filing mechanic’s liens in Connecticut, New York, and Rhode Island.”

·         Daniel Duffy, Principal Analyst, Office of Legislative Research, Connecticut General Assembly, Florida’s Law on Mechanic’s Liens, OLR Report No.2004-R-0912 (December 13, 2004).

“You asked if Florida’s construction lien law requires contractors to perfect a lien on each job.

·         Helga Niesz, Principal Analyst, Office of Legislative Research, Connecticut General Assembly, Connecticut And California Mechanic’s Lien Statutes, OLR Report No. 97-R-0628 (May 2, 1997).

“You asked for a comparison of Connecticut and California mechanic’s lien statute.”

·         George Coppolo, Chief Attorney, Office of Legislative Research, Connecticut General Assembly, Mechanic’s Lien, OLR Report No. 94-R-0589 (May 25, 1994).

 

FORMS:

·         1A Douglass B. Wright and John H. Yeomans, Connecticut Legal Forms (1983).

Chapter 9. Liens

§ 901.1 Mechanic’s liens

·         Forms Index, Connecticut Lawyers’ Deskbook (2d ed. 2000).

Chapter XIII: Mechanics’ Liens

Certificate of mechanic’s lien

Notice of intent to file a mechanic’s lien

 

CASES:

·         Thompson And Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370, 371-172,  696 A.2d 326 (1997)  “The sole issue in this appeal is whether unpaid insurance premiums owed by a subcontractor are ‘materials’ or ‘services’ under the mechanic's lien statute, General Statutes § 49-33. We conclude that because such premiums have not enhanced the property in some physical manner, laid the groundwork for the physical enhancement of the property, or played an essential part in the scheme of physical improvement of the property, they are not lienable under § 49-33.”

·         Ceci Bros., Inc. v. Five Twenty-One Corp., 51 Conn. App. 773, 792, 724 A.2d 541  (1999). “We conclude that the [landscaping] services performed by the plaintiff, pursuant to the maintenance agreement, which was a status quo agreement, were not lienable under § 49-33.”

·         Nickel Mine Brook Assoc. v. Joseph E. Sakal, P.C., 217 Conn. 361, 369, 585 A.2d 1210 (1991). “There is no reference in the legislative history to attorneys, nor is there any evidence that the legislature intended to expand the scope of the mechanic's lien statute to include any type of legal services.”

·         Peck v. Brush, 90 Conn. 651, 654, 98 A. 561 (1916).  “ . . . it is not necessary that the materials shall be furnished under an express contract, but it is enough if they are furnished with the consent of the owner of the land, so that there is an implied contract by him to pay for them.”

·         Seaman v. Climate Control Corporation, 181 Conn. 592, 595-596, 436 A.2d 271 (1980). “. . . it is well to put into context the relationships between owners, contractors and subcontractors under our mechanic's lien law. Those who provide services or materials in connection with the construction of a building are entitled to claim a lien on the land that they have improved if they fall into one of two categories. Lienors are protected if they have a claim either (1) by virtue of an agreement with or the consent of the owner of the land, or (2) by the consent of some person having authority from or rightfully acting for such owner in procuring labor or materials. General Statutes 49-33.”

·         Battistelli v. Jacobson, 13 Conn. Sup. 196, 199 (1944). “Because a landlord knows of, and consents to, repairs being made, on leased premises owned by him, under a contract with his lessee, he does not thereby forfeit any rights as lessor and owner of the leased premises, nor does he thereby consent to a pledge of his property for a default of the lessee, if he was not a party to the contract.”

 

WEST KEY NUMBERS:

 

·         MECHANICS’ LIEN

I.  Nature, grounds, and subject matter in general, # 1-21

II.   Right to lien, # 22-115(5)

 

DIGESTS:

·         ALR Digest: MECHANICS’ LIEN

 

 

INDICES:

·         ALR: MECHANICS’ LIEN

 

ENCYCLOPEDIAS:

·         53 Am Jur 2d Mechanics’ Lien (1996)

§§ 1-28. Introduction

§§ 29-47. Property, estates, or interests subject to lien

§§ 48-174. Right to lien

·         56 C.J.S. Mechanics’ Lien (1992).

§§ 1-16. In general

§§ 17-120. Right to lien

§§ 17-29. Nature of improvement

§§ 30-48. Services rendered and materials furnished, and amount of claim

§§ 49-95. Contract with, or consent of, owner

§§ 96-120. Persons entitled to lien

§§ 105-120. Subcontractors, and contractors’ workmen and materialmen

·         Elaine Marie Tomko, Annotation, Landlord’s Liability To Third Party For Repairs Authorized By Tenant, 46 ALR5th 1 (1997).

·         Kimberly C. Simmons, Annotation, Architect’s Services As Within Mechanics’ Lien Statute, 31 ALR5th 664 (1995).

·         Wanda Ellen Wakefield, Annotation, Vacation And Sick Pay And Other Fringe Benefits As Within Mechanic’s Lien Statute, 20 ALR4th 1268 (1983).

·         Annotation, Removal Or Demolition Of Building Or Other Structure As Basis For Mechanic’s Lien, 74 ALR3d 386 (1976).

·         Maurice T. Brunner, Annotation, Enforceability Of Mechanic’s Lien Attached To Leasehold Estate Against Landlord’s Fee, 74 ALR3d 330 (1976).

·         J.R. Kemper, Annotation, Enforceability Of Single Mechanic’s Lien Upon Several Parcels Against Less Than The Entire Property Liened, 68 ALR3d 1300 (1976).

·         Maurice T. Brunner, Annotation, Abandonment Of Construction Or Of Contract As Affecting Time For Filing Mechanic’s Liens Or Time For Giving Notice To Owner, 52 ALR3d 797 (1973).

·         Jack W. Shaw, Annotation, Municipal Property As Subject To Mechanic’s Lien (1973).

·         Maurice T. Brunner, Annotation, Labor In Examination, Repair, Or Servicing Of Fixtures, Machinery, Or Attachments In Building, As Supporting A Mechanics’ Lien, Or As Extending Time For Filing Such A Lien, 51 ALR3d 1087 (1973).

·         Annotation, Charge For Use Of Machinery, Tools, Or Appliances Used In Construction As Basis For Mechanic’s Lien, 3 ALR3d 573 (1965).

·         Litigating Construction Liens, 53 Am Jur Trials 367 (1995).

§§ 42-45. Persons entitled to construction liens

§§ 51-55. Property subject to construction liens

 

TEXTS & TREATISES:

·         13 David E. Rosengren, Connecticut Practice Series, Connecticut Construction Law (2005).

Chapter 6. Mechanic’s Liens

§ 6:1. General provisions

§ 6:2. Persons entitled to lien

§ 6:3. Property subject to mechanic’s liens

·         Denis R. Caron and Geoffrey K. Milne, Connecticut Foreclosures: An Attorney’s Manual  of Practice and Procedure (4th ed. 2004).

Chapter 13. Mechanics’ Lien

 § 13.01. Special concerns

·         Peter L. Costas, Managing ed., Connecticut Lawyers’ Deskbook: A Reference Manual (2d ed. 2000).

Mechanics’ Liens by Alan Robert Baker and Gina M. Varano

Basic principles

What is a mechanic’s lien (p. XIII-2)

Who is entitled to file a mechanic’s lien? (p. XIII-3)

What type of property may be subject to a mechanic’s lien (p. XIII-3)

 

PERIODICALS

·            Laurence Levine, Due Process Of Law In Pre-Judgment Attachment And The Filing Of Mechanics’ Liens, 50 Conn. B.J. 335 (1976).

·            Charles M. Lyman, Note, Mechanic’s Lien—Priority Over Unrecorded Purchase-Money Mortgage—Gruss V. Miskinis, 130 Conn. 367 (1943). 18 Conn. B.J. 28 (1944).

 

 

COMPILER:

Lawrence Cheeseman, Connecticut Judicial Department, Law Library at Middletown, One Court Street, Middletown, CT 06457 (860) 343-6560. Email

 

 

 

 

 


Table 1 Rights of Subcontractor in Mechanics’ Liens

 

Rights of Subcontractor

 

Statutes

 

Conn. Gen. Stats. §  49-33(f)

 

“Any such subcontractor shall be subrogated to the rights of the person through whom the subcontractor claims, except that the subcontractor shall have a mechanic's lien or right to claim a mechanic's lien in the event of any default by that person subject to the provisions of sections 49-34, 49-35 and 49-36, provided the total of such lien or liens shall not attach to any building or its appurtenances, or to the land on which the same stands or to any lot or to any plot of land, to a greater amount in the whole than the amount by which the contract price between the owner and the person through whom the subcontractor claims exceeds the reasonable cost, either estimated or actual, as the case may be, of satisfactory completion of the contract plus any damages resulting from such default for which that person might be held liable to the owner and all bona fide payments, as defined in section 49-36, made by the owner before receiving notice of such lien or liens.”

 

CASES

 

W. G. Glenney Co. v. Bianco, 27 Conn. App. 199, 201,  604 A.2d 1345 (1992).

 

 

“Under Connecticut law, a subcontractor's right to enforce a mechanic's lien against a property owner is based on the doctrine of subrogation . . . . The theory of subrogation allows the plaintiff to recover only to the extent the general contractor

could recover from the defendants.”

 

 

Seaman v. Climate Control Corporation, 181 Conn. 592, 593, 436 A.2d 271 (1980).

 

 

The sole issue on this appeal is whether a second tier subcontractor has a right to a

mechanic's lien against the owner's property when the owner owes money to the general contractor, but the first tier subcontractor has been fully paid by the general contractor.

 

Avery v. Smith, 96 Conn. 223, 225,  113 A. 313 (1921).

 

 

“It is well settled that under our mechanic's lien law a subcontractor's right of lien depends upon the existence of such a right in the original contractor, whether

perfected by him or not . . . .”

 

 

Waterbury Lumber & Coal Co. v. Coogan, 73 Conn. 519, 521, 48 A. 204 (1900).

 

“Statutory liens on real estate for improvements put upon them otherwise than by contract with the owner, are of two classes. These may be imposed in favor of a subcontractor because he is equitably entitled to a lien that would otherwise attach in favor of the contractor; or, under certain circumstances, they may be imposed on the ground that the improvements have so enhanced the value of the estate that it would be inequitable to allow the owner to be enriched at the expense of him by whom they were made.”

Cont’d

 

ENCYCLOPEDIAS

 

·         James McLoughlin, Annotation, Right Of Subcontractor’s Or Materialman, Or Of Materialman’s Materialman, To Mechanic’s Lien, 24 ALR4th 963 (1983).

·         Maurice T. Brunner, Annotation, Release Or Waiver Of Mechanic’s Lien By General Contractor As Affecting Rights Of Subcontractor Or Materialman, 75 ALR3d 505 (1977).

·         J.R. Kemper, Annotation, Effect Of Bankruptcy Of Principal Contractor Upon Mechanic’s Lien Or Subcontractor, Laborer Or Materialman As Against Owner Of Property, 69 ALR3d 1342 (1976).

·         J.R. Kemper, Annotation, Building and construction contracts: Right Of Subcontractor Who Has Dealt Only With Primary Contractor To Recover Against Property Owner In Quasi Contract, 62 ALR3d 288 (1975).

 

TREATISES

·         13 David E. Rosengren, Connecticut Practice Series, Connecticut Construction Law (2005).

Chapter 6. Mechanic’s Liens

§ 6:2. Persons entitled to lien

·         Peter L. Costas, Managing ed., Connecticut Lawyers’ Deskbook: A Reference Manual (2d ed. 2000).

Mechanics’ Liens by Alan Robert Baker and Gina M. Varano

Basic principles

Who is entitled to file a mechanic’s lien? (p. XIII-3)

How is a mechanic’s lien challenged?

1. Subrogation

 

 

 

 

 

 

 

 


Section

Mechanic’s Lien Certificate

A Guide to Resources in the Law Library

 

 

SCOPE:

Bibliographic resources relating to obtaining or perfecting a mechanic’s lien in Connecticut.

 

DEFINITIONS:

·         Mechanic’s Lien Certificate: “A mechanic's lien is not valid unless the person performing the services or furnishing the materials (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and (2) not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35.” Conn. Gen. Stat. § 49-34 (2005).

 

STATUTES:

 

·         Conn. Gen. Stat. (2005). 

Chapter 847. Mortgages and liens

§ 49-33. Mechanic’s lien. Precedence. Rights of subcontractors

§ 49-34. Certificate of lien to be recorded and notice given to owner

 

LEGISLATIVE:

·         Daniel Duffy, Principal Analyst, Office of Legislative Research, Connecticut General Assembly, Filing Mechanic’s Lien, OLR Report No. 2006-R-0063 (January 20, 2006).

“You asked for the requirements for filing mechanic’s liens in Connecticut, New York, and Rhode Island.”

·         Daniel Duffy, Principal Analyst, Office of Legislative Research, Connecticut General Assembly, Florida’s Law on Mechanic’s Liens, OLR Report No.2004-R-0912 (December 13, 2004).

“You asked if Florida’s construction lien law requires contractors to perfect a lien on each job.”

·         Helga Niesz, Principal Analyst, Office of Legislative Research, Connecticut General Assembly, Connecticut And California Mechanic’s Lien Statutes, OLR Report No. 97-R-0628 (May 2, 1997).

“You asked for a comparison of Connecticut and California mechanic’s lien statute.”

 

FORMS:

·         Forms Index, Connecticut Lawyers’ Deskbook (2d ed. 2000).

Chapter XIII: Mechanics’ Liens by Alan Robert Baker and Gina M. Varano

Certificate of mechanic’s lien

·         1A Douglass B. Wright and John H. Yeomans, Connecticut Legal Forms (1983).Chapter 9. Liens

§ 901.1 Mechanic’s liens

 

CHECKLISTS

·         Peter L. Costas, Managing ed., Connecticut Lawyers’ Deskbook: A Reference Manual (2d ed. 2000).

 Chapter XIII: Mechanics’ Liens by Alan Robert Baker and Gina M. Varano

A. Checklist for preparing a certificate of mechanic’s lien, p. XIII-11

B. Checklist for perfecting a mechanic’s lien

 

CASES:

·         Haynes Material Company v. Frank Kerski et al., No. CV04 4001622 (Conn. Super. Judicial District of Ansonia-Milford at Milford, 39 Conn. L.Rev. 659 (September 19, 2005). “In the present case, the certificate of mechanic's lien recorded on the land records contains a proper description of the property subject to the lien. In fact, the mechanic's lien here is a blanket lien against a ‘plot’ of land. Under § 49-33(a), a plaintiff may file a blanket lien against a ‘plot’ of land that has been subdivided. Butch v. Mangomutha, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 900375968 (April 28, 1993, Aurigemma, J.) (8 C.S.C.R. 538). Moreover, the Appellate Court has held that ‘the filing of a blanket lien against a subdivision is the appropriate way for a contractor providing materials and services for a subdivision to proceed, even when some lots in the subdivision have subsequently been transferred to individual owners.’ Butch v. Thangamuthu, 37 Conn.App. 547, 550, 657 A.2d 684 (1995); see also Pomarico v. Gary Construction, Inc., 5 Conn.App. 106, 109-11, 497 A.2d 70, cert. denied, 197 Conn. 816, 499 A.2d 1336 (1985). Accordingly, the court determines that the property description contained in the plaintiff's mechanic's lien satisfies the requirement of General Statutes § 49-34.

·         Louis Gherlone Excavating, Inc. v. McLean Construction Co., 88 Conn. App. 775, 785, 871 A.2d 1057 (2005). “We therefore conclude that the plaintiff cannot prevail in this action to foreclose the mechanic's lien because the certification does not contain a verification that the facts contained in it are true.”

·         David Nichols Builders, Inc. v. Mavor, No. CV 04 00721855 (Conn. Super., Judicial District of Windham at Putnam , Apr. 7, 2005), 39 Conn. L. Reptr. 64 (June 6, 2005). “The mechanic's lien presently before the court is almost exactly like the one found in Red Rooster [Red Rooster Construction Co. v. River Associates, 224 Conn. 563, 577-78, 620 A.2d 118 (1993)] where the court held that unless said liens are ‘sworn to’ by the lienor, the mechanic's lien is invalid. In both cases the mechanic's lien document filed in the land records, after recitation of the basis for the lien and a claim for same, signed by party claiming the lien, stated, ‘. . . personally appeared, and made solemn oath that the facts herein are true . . .’ followed by the signature of the notary alone. As such, without a written oath appearing on the certificate of mechanic's lien, as well as the performance or execution of an oath swearing by the plaintiff, the present mechanic's lien, as that in Red Rooster, is ineffective pursuant to § 49-34(1)(C) and subsequent case law illuminating the statutorily required oath.

·         F.B. Mattson Company, Inc. v. Tarte, 247 Conn. 234, 239-240, 719 A.2d 1158   (1998). “We previously have concluded that, although the general rule is that the time period for filing a certificate of mechanic's lien commences on the last date on which services were performed or materials were furnished; Martin Tire & Rubber Co. v. Kelly Tire & Rubber Co., 99 Conn. 396, 403, 122 A. 102 (1923); when work has been substantially completed and the contractor unreasonably has delayed final completion, the time period for filing a certificate of mechanic's lien will be computed from the date of substantial completion.  Id.  Moreover, when an unreasonable period of time has elapsed since substantial completion of the work, the performance of trivial services or the furnishing of trivial materials generally will not extend the time for filing the certificate past the date of substantial completion.  Id., 400.  If, however, subsequent to the date of substantial completion, trivial services or materials are provided at the request of the owner, rather than at the initiative of the contractor for the purpose of saving a lien, the furnishing of such work or material will extend the commencement of the period for filing a certificate of mechanic's lien.”

·          

WEST KEY NUMBERS:

 

·         MECHANICS’ LIENS # 116-160

 

DIGESTS:

·         ALR Digest: Mechanics’ Liens

 

INDICES:

·         ALR: Mechanics’ Liens

 

ENCYCLOPEDIAS:

·         53 Am Jur 2d Mechanics’ Lien (1996)

§§ 175-244. Procedure for obtaining or perfecting mechanic’s lien

§§ 175-177. In general

§§ 178-187. Notice to owner

§§ 188-244. Claim, statement, or notice of lien

§§ 245-280. Operation and effect of lien

§§ 281-284. Assignment of lien or claim

·         56 C.J.S. Mechanics’ Lien (1992).

§§ 121-132. Perfection of lien

·         Maurice T. Brunner, Annotation, Abandonment Of Construction Or Of Contract As Affecting Time For Filing Mechanic’s Liens Or Time For Giving Notice To Owner, 52 ALR3d 797 (1973).

·         Maurice T. Brunner, Annotation, Sufficiency Of Designation Of Owner In Notice, Claim, Or Statement Of Mechanic’s Lien, 48 ALR3d 153 (1973).

 

TEXTS & TREATISES:

·         13 David E. Rosengren, Connecticut Practice Series, Connecticut Construction Law (2005).

Chapter 6. Mechanic’s liens

§ 6:5. Substantive requirements of a certificate of mechanic’s lien

·         Denis R. Caron and Geoffrey K. Milne, Connecticut Foreclosures: An Attorney’s Manual  of Practice and Procedure (4th ed. 2004).

Chapter 13. Mechanics’ Lien

§ 13.03. Service

§ 1303A. Service on the “Original Contractor”

·         Peter L. Costas, Managing ed., Connecticut Lawyers’ Deskbook: A Reference Manual (2d ed. 2000).

Chapter XIII Mechanics’ Liens by Alan Robert Baker and Gina M. Varano

Basic principles

What are the substantive requirements of a certificate of mechanic’s lien?

How is a mechanic’s lien challenged?

Technical defects in the certification of mechanic’s lien (p. XIII-8)

 

PERIODICALS

·            Laurence Levine, Due Process Of Law In Pre-Judgment Attachment And The Filing Of Mechanics’ Liens, 50 Conn. B.J. 335 (1976).

 

COMPILER:

Lawrence Cheeseman, Connecticut Judicial Department, Law Library at Middletown, One Court Street, Middletown, CT 06457 (860) 343-6560. Email

 

 


 

Table 2 Mechanic's Lien Certificate

 

Mechanic’s Lien Certificate

Conn. Gen. Stats. § 49-34

 

 

A mechanic's lien is not valid unless the person performing the services or furnishing the materials

 

 

Within 90-days of ceasing to perform services or furnish materials

 

 

(1)     within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land.

 

 

(A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials,

 

 

(B) stating that the amount claimed is justly due, as nearly as the same can be ascertained

 

 

(C) subscribed and sworn to by the claimant

 

Within 30-days after lodging certificate

 

(2)     not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35.

 

 

 

 

 

 

 


Section 3 

Notice and Service

Requirements

A Guide to Resources in the Law Library

 

 

SCOPE:

Bibliographic resources relating to notice and serving requirements of mechanic’s lien in Connecticut

 

DEFINITIONS:

·         Perfect: “Because the mechanic's lien is a creature of statute, a lienor must comply with statutory requirements in order to perfect his claim.” H & S Torrington Assoc. v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981).

·          

STATUTES:

·         Conn. Gen. Stats. (2005)

§ 49-34(2). “ . . . . not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35.”

§ 49-35. Notice of intent. Liens of subcontractors and materialmen.

 

LEGISLATIVE:

·         Daniel Duffy, Principal Analyst, Office of Legislative Research, Connecticut General Assembly, Filing Mechanic’s Liens, OLR Report No. 2006-R-0063 (January 20, 2006).

“You asked for the requirements for filing mechanic’s liens in Connecticut, Massachusetts, New York and Rhode Island .”

·         Daniel Duffy, Principal Analyst, Office of Legislative Research, Connecticut General Assembly, Florida’s Law on Mechanic’s Liens, OLR Report No.2004-R-0912 (December 13, 2004).

“You asked if Florida’s construction lien law requires contractors to perfect a lien on each job.”

·         Helga Niesz, Principal Analyst, Office of Legislative Research, Connecticut General Assembly, Connecticut And California Mechanic’s Lien Statutes, OLR Report No. 97-R-0628 (May 2, 1997).

“You asked for a comparison of Connecticut and California mechanic’s lien statute.”

 

FORMS:

·         Forms Index, Connecticut Lawyers’ Deskbook (2d ed. 2000).

Chapter XIII: Mechanics’ Liens by Alan Robert Baker and Gina M. Varano

Notice of intent to file a mechanic’s lien

 

CHECKLISTS:

·         Peter L. Costas, Managing ed., Connecticut Lawyers’ Deskbook: A Reference Manual (2d ed. 2000).

 Chapter XIII: Mechanics’ Liens by Alan Robert Baker and Gina M. Varano

B. Checklist for perfecting a mechanic’s lien

 

CASES:

·         Rollar Construction v. Granite Rock, 94 Conn. App. 125, 891 A.2d 133 (2006).  “General Statutes § 49-34 includes five requirements to filing a valid mechanic's lien. If any of those requirements fail, the lien is invalid. Because the court found the plaintiff did not comply with two of the requirements of the statute, it is only necessary for us to agree with the court on one of the grounds in order to affirm the invalidity of the mechanic's lien.”

·         O.J. Mann Electric Services, Inc. v. The Village At Kensington Place, No. CV 02 0282281S (Conn. Super. Ct., J.D. New Haven, Dec. 17, 2004), 38 Conn. L. Rptr. 463 “The complaint alleges that the plaintiff completed its services on June 19, 2001, and the parties' stipulated that plaintiff filed the mechanic's lien on July 14, 2002. The court requested supplemental briefing on whether the plaintiff was required to plead and prove compliance with General Statutes §§ 49-34 and 49-35(a). Although this and other trial courts have held that noncompliance with the requirements of those statutes can defeat a mechanic's lien; see, e.g., Yurchuk v. Soro Land Co., Superior Court, judicial district of Litchfield, Docket No. CV 00-00839995 (July 17, 2003); Santa Fuel, Inc. v. Vargo, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 00-0374050 (May 30, 2001, Brennan, J.) (29 Conn. L. Rptr. 547); Steeltech Building Products v. Viola, Superior Court, judicial district of Hartford, Docket No. CV 98-0580266 S (May 15, 2000, Wagner, J.T.R.); neither party has cited, nor has the court found, authority requiring a party seeking to enforce a mechanic's lien to plead or prove compliance with notice requirements of the mechanic's lien statutes, in the absence of proof of non-compliance.”

·         Allen Construction, v. Cabanilla, No. CV00376419S ( Conn. Super. Ct., Judicial District of Fairfield , Jun. 7, 2001). “The plaintiff filed a supplemental memoranda and therein argues that the inclusion of ‘Inc.’ after Allen Construction was a misnomer or scrivener' s error and that the proper denomination should have been Allen Construction, otherwise known as Jesse Allen d/b/a Allen Construction. The plaintiff contends that it abided by the notice and service requirements set out in General Statutes §§ 49-35 (a) and 49-34 and, hence, the defendants were not misled or confused by the misnomer.”

 

WEST KEY NUMBERS:

·         MECHANICS’ LIENS # 116-160

 

DIGESTS:

·         ALR Digest: Mechanics’ Liens

 

ENCYCLOPEDIAS:

·         53 Am Jur 2d Mechanics’ Lien (1996)

§ 178. Generally

§ 179. Sufficiency of notice, generally

§ 180. —Content of notice under Uniform Construction Lien Act

§ 181. Necessity of written notice

§ 182. Formal requirements of written notice

§ 183. Time of notice

§ 184. Service of notice

§ 185. Persons to be served

§ 186. Effect of service of notice

§ 187. Effect of failure to serve sufficient or proper notice

·         56 C.J.S. Mechanics’ Lien (1992).

·         Maurice T. Brunner, Annotation, Abandonment Of Construction Or Of Contract As Affecting Time For Filing Mechanic’s Liens Or Time For Giving Notice To Owner, 52 ALR3d 797 (1973).

·         Maurice T. Brunner, Annotation, Sufficiency Of Designation Of Owner In Notice, Claim, Or Statement Of Mechanic’s Lien, 48 ALR3d 153 (1973).

 

TEXTS & TREATISES:

 

·         13 David E. Rosengren, Connecticut Practice Series, Connecticut Construction Law (2005).

Chapter 6. Mechanic’s liens

§ 6:6. Recording and notice requirements

·         Peter L. Costas, Managing ed., Connecticut Lawyers’ Deskbook: A Reference Manual (2d ed. 2000).

Mechanics’ Liens by Alan Robert Baker and Gina M. Varano

Basic principles

What are the notice requirements of a certificate of mechanic’s lien?

 

COMPILER:

Lawrence Cheeseman, Connecticut Judicial Department, Law Library at Middletown, One Court Street, Middletown, CT 06457 (860) 343-6560. Email

 

 


Table 3  Service of notice on owner or original contractor

 

 

Service of Notice on

Owner or Original Contractor

 

 

“ . . . . not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35.” Conn. Gen. Stats. § 49-33 (2005).

 

 

Manner of service on owner or original contractor

 

 

Resides in same town

 

“. . . . The notice shall be served upon the owner or original contractor, if such owner or original contractor resides in the same town in which the building is being erected, raised, removed or repaired or the lot is being improved, or the plot of land is being improved or subdivided, by any indifferent person, state marshal or other proper officer, by leaving with such owner or original contractor or at such owner's or the original contractor's usual place of abode a true and attested copy thereof. Conn. Gen. Stats. § 49-34(a) (2005). (Emphasis added).

 

 

 

Does not reside in same town

 

“. . . .If the owner or original contractor does not reside in such town, but has a known agent therein, the notice may be so served upon the agent, otherwise it may be served by any indifferent person, state marshal or other proper officer, by mailing a true and attested copy of the notice by registered or certified mail to the owner or original contractor at the place where such owner or the original contractor resides.” Conn. Gen. Stats. § 49-34(a) (2005). (Emphasis added).  

 

 

Unclaimed

 

2 or more

 

“ . . .  If such copy is returned unclaimed, notice to such owner or original contractor shall be given by publication in accordance with the provisions of section 1-2. When there are two or more owners, or two or more original contractors, the notice shall be so served on each owner and on each original contractor. The notice, with the return of the person who served it endorsed thereon, shall be returned to the original maker of the notice not later than thirty days after the filing of the certificate pursuant to section 49-34.” Conn. Gen. Stats. § 49-34(a) (2005). (Emphasis added).

 

 

No subcontractor, without a written contract complying with the provisions of this section, and no person who furnishes material or renders services by virtue of a contract with the original contractor or with any subcontractor, may be required to obtain an agreement with, or the consent of, the owner of the land, as provided in section 49-33, to enable him to claim a lien under this section.” Conn. Gen. Stats. § 49-34(b) (2005). (Emphasis added).

 

 

 

 

 

 

Section 4 

Discharge or Reduction of Mechanic’s Lien

A Guide to Resources in the Law Library

 

 

 

SCOPE:

Bibliographic references related to discharge or reduction of  a mechanic’s lien

 

TREATED ELSEWHERE:

·        See Table 4 for dissolution of mechanic’s lien by substitution of bond.

 

 

STATUTES:

·         Conn. Gen. Stat. (2005)

§ 49-35a. Application for reduction or discharge. Forms. Hearing. Entry Fee

§ 49-35b. Burden of proof at hearing. Authority of court

§ 49-35c. Appeal

§ 49-35d. Validation of lien recorded prior to April 22, 1975

§ 49-36. Liens limited; apportion; payments to original contractor

§ 49-37. Dissolution of mechanics’ lien by substitution of bond. Joinder of actions on claim and bond

§ 49-51. Discharge of invalid lien

 

FORMS:

·         Figure 1. Application for discharge or reduction of mechanic's lien

·         1A Douglass B. Wright and John H. Yeomans, Connecticut Legal Forms (1983).

§ 901.5. Application for discharge or reduction of mechanic’s lien

Order for hearing and notice

Order

 

CHECKLISTS:

·         12A Am Jur Legal Forms Mechanics’ Liens (1999).

§ 173:39. Form drafting Guide—Checklist—Matters to consider when drafting an instrument to release or otherwise discharge a mechanic’s lien

 

COURT CASES:

·         N.E. Tank Serv. v. 570 Main St., LLC, No. HHB CV054008098 S (Conn. Super. Ct., Judicial District of New Britain at New Britain , Feb. 6, 2006). “In an action to dissolve a mechanics lien, the lienor must first establish that there is probable cause to sustain the validity of the lien established. General Statute § 49-35(b)(a); Sikora v. Rosado Builders, Inc., Docket #CV040409493S, judicial district of Fairfield at Bridgeport (March 18, 2004) (Karazin, J.). Upon doing so the burden of proof then shifts to the party whose property has been liened (defendant) to establish by clear and convincing evidence that the lien should be dissolved or reduced. Id. Should the defendant meet its burden, the court has the authority to order the lien discharged, reduce the amount of the lien, or substitute a bond in place of the lien in an amount deemed appropriate for the protection of the lienor. General Statute § 49-35b(b).”

 

ENCYCLOPEDIAS:

·         53 Am Jur 2d Mechanics’ Lien (1996)

§§  312-330. Satisfaction, discharge, or extinction

§§ 313-315. On giving bond or other undertaking

·         56 C.J.S. Mechanics’ Lien (1992).

§§ 252-288. Waiver, discharge, Release, and satisfaction

·         Carol Vento, Annotation, Discharge Of Mortgage And Taking Back Of New Mortgage As Affecting Lien Intervening Between Old And New Mortgages, 43 ALRth 519(1996).

 

TEXTS & TREATISES:

·         13 David E. Rosengren, Connecticut Practice Series, Connecticut Construction Law (2005).

Chapter 6. Mechanic’s liens

§ 6:9. Reduction or discharge of liens

§ 6:11. Discharge of invalid lien

·         Denis R. Caron and Geoffrey K. Milne, Connecticut Foreclosures: An Attorney’s Manual  of Practice and Procedure (4th ed. 2004).

Chapter 13. Mechanics’ Lien

§ 13.05. Reduction or discharge of a mechanic’s lien

§ 13.05A. Venue and service

§ 13.05B. Appeals

§ 13.05C. Appeal by lienor

§ 13.05C1. The size of the bond

§ 13.05C2. Effect on a foreclosure

§ 13.05D. Appeal by owner

·         Peter L. Costas, Managing ed., Connecticut Lawyers’ Deskbook: A Reference Manual (2d ed. 2000).

Mechanics’ Liens by Alan Robert Baker and Gina M. Varano

How is a mechanic’s lien discharged?

1. Application for reduction or discharge of a mechanic’s lien

a.  Burden of proof at the hearing on the application to reduce or discharge the mechanic’s lien

b. Appeals

2. Invalidation of the mechanic’s lien as a matter of law

3. Dissolution of a mechanic’s lien by substitution of a surety

 

COMPILER:

Lawrence Cheeseman, Connecticut Judicial Department, Law Library at Middletown, One Court Street, Middletown, CT 06457 (860) 343-6560. Email

 

 


Figure 1  Application for discharge or reduction of mechanic's lien

APPLICATION FOR DISCHARGE OR

REDUCTION OF MECHANIC'S LIEN

To the .... Court of ....

The undersigned represents:

1. That .... is the owner of the real estate described in Schedule A attached hereto.

2. That the names and addresses of all other owners of record of such real estate are as follows:

3. That on or about ...., (date) ...., (name of lienor) of .... (address of lienor) placed a mechanic's lien on such real estate and gave notice thereof.

4. That there is not probable cause to sustain the validity of such lien (or: That such lien is excessive).

5. That the applicant seeks an order for discharge (or reduction) of such lien.

Name of Applicant

By ....

Applicant's Attorney

ORDER

The above application having been presented to the court, it is hereby ordered, that a hearing be held thereon at .... a.m. and that the applicant give notice to the following persons: (Names and addresses of persons entitled to notice) of the pendency of said application and of the time when it will be heard by causing a true and attested copy of the application, and of this order to be served upon such persons by some proper officer or indifferent person on or before .... and that due return of such notice be made to this court.

Dated at .... this .... day of .... 20...

SUMMONS

To a state marshal of the county of ...., or either constable of the town of ...., in said county,

Greeting:

By authority of the state of Connecticut, you are hereby commanded to serve a true and attested copy of the above application and order upon ...., of .... by leaving the same in such person's hands or at such person's usual place of abode (or such other notice as ordered by the court) on or before ....

Hereof fail not but due service and return make.

Dated at .... this .... day of .... 20...

…..

Commissioner of the Superior Court

(1) If the clerk, upon receipt of all the documents in duplicate, finds them to be in proper form, the clerk shall fix a date for a hearing on the application and sign the order of hearing and notice. An entry fee of twenty dollars shall then be collected and a copy of the original document shall be placed in the court file.

(2) The clerk shall deliver to the applicant's attorney the original of the documents for service. Service having been made, the original documents shall be returned to the court with the endorsement by the officer of such officer's actions.

(c) If an action for foreclosure of the lien is pending before any court, any party to that action may at any time prior to trial, unless an application under subsection (a) of this section has previously been ruled upon, move that the lien be discharged or reduced.

(d) No more than one application under subsection (a) hereof or motion under subsection (c) hereof shall be ruled upon with respect to any single mechanic's lien, except that the foregoing shall not preclude an application or motion by a person not given notice of the prior application or not a party to the action at the time the prior motion was ruled upon.


 

Section 5 

Waiver of a Mechanic’s Lien

A Guide to Resources in the Law Library

 

 

 

SCOPE:

Bibliographic references related to release or waiver of  a mechanic’s lien in Connecticut

 

STATUTES:

·         Conn. Gen. Stat. (2005)

§ 42-158l. Clauses waiving right to claim mechanic’s lien or claim against a payment bond void

 

LEGISLATIVE:

·         Daniel Duffy, Principal Analyst, Florida’s Law On Waiver Or Release Of Mechanic’s Liens, Connecticut General Assembly, Office of Legislative Research, OLR No. 2004-R-0723 (September 17, 2004).

“You asked for a summary of Florida’s law on waiver or release of mechanic’s liens.”

·         George Coppolo, Chief Attorney, Release of Mechanic’s Liens, Connecticut General Assembly, Office of Legislative Research, OLR No. 94-R-0035 (January 7, 1994).

 

FORMS:

·         12A Am Jur Legal Forms Mechanics’ Lien (1999)

§ 173:41. Waiver of lien

§ 173:42. Waiver of lien—Provision—Waiver only as to services rendered to specific date

 

CHECKLISTS:

·         12A Am Jur Legal Forms Mechanics’ Lien (1999)

§ 143:38. Form drafting guide—Checklist—Matters to consider when drafting an instrument to waive a mechanic’s lien

 

COURT CASES:

  • Pero Building Co. v. Smith, 6 Conn. App. 180, 185, 504 A.2d 524 (1986). “The right to a mechanic's lien is not a contractual right, rather it is a statutory right available to secure, as well as to enforce, payment for materials and labor rendered. Lampson Lumber Co. v. Rosadino, 141 Conn. 193, 196, 104 A.2d 362 (1954); Purcell, Inc. v. Libbey, Supra [111 Conn. 132, 136, 149 A. 225 (1930).]; New Haven Orphan Asylum v. Haggerty Co., 108 Conn. 232, 239, 142 A. 847 (1928). The effect of a waiver clause is to limit the avenues available to the plaintiff to collect for such material and labor. Once the statutory right to a mechanic's lien has been waived, there is no provision under the statute for the revival of that right upon the breach of a contract. See General Statutes 49-33 et seq.”

 

ENCYCLOPEDIAS:

·         53 Am Jur 2d Mechanics’ Lien (1996)

§§ 285-330. Loss or extinguishment of lien

§ 286. Express waiver, generally

§ 287. –Requirement that waiver be unequivocal

§ 288. Formal requirements of waiver agreement

§ 289. Consideration

§ 290. Construction and effect

§ 291. Extent of waiver; partial waiver

§ 292. Release of lien on portion of property as affecting lien on portion not released

§ 293. Waiver by contractor as waiving lien of subcontractor, materialman, or laborer

§ 294. Effect of fraud

§ 295. Implied waiver

·         56 C.J.S. Mechanics’ Lien (1992).

§§ 252-288. Waiver, discharge, Release, and satisfaction

§ 252. Waiver of right to lien. In general

§ 253. What constitutes in general

§ 254. Agreements

§ 255. Action on claim

§ 256. Taking or transfer of note

§ 257. Taking or transfer of bill, draft, or order

§ 258. Taking security

§ 259. Persons entitled to set up waiver

·         Carol Vento, Annotation, Discharge Of Mortgage And Taking Back Of New Mortgage As Affecting Lien Intervening Between Old And New Mortgages, 43 ALR5th 519(1996).

 

TEXTS & TREATISES:

·         13 David E. Rosengren, Connecticut Practice Series, Connecticut Construction Law (2005).

Chapter 6. Mechanic’s liens

§ 6:8. Lien waivers

·         Peter L. Costas, Managing ed., Connecticut Lawyers’ Deskbook: A Reference Manual (2d ed. 2000).

Mechanics’ Liens by Alan Robert Baker and Gina M. Varano

How is a mechanic’s lien challenged?

2. Mechanic’s lien waivers (p. XIII-8)

LAW REVIEWS:

·         Ellen L. Sostman and Duncan J. Forsyth, Mechanics’ Lien Waivers In Connecticut: The Myths And The Realities, 63 Conn. B.J. 195 (1989).

·         Edwin L. Baum, Note, Conditional Sale Contract—Waiver Of Mechanic’s Lien—Election Of Remedies—Hartlin v. Cody, 144 Conn. 499, 134 A.2d 245 (1957), 32 Conn. B.J. 299 (1958).

 

COMPILER:

Lawrence Cheeseman, Connecticut Judicial Department, Law Library at Middletown, One Court Street, Middletown, CT 06457 (860) 343-6560. Email

 

 

 

 


 

Section 6 

Dissolution of a Mechanic’s Lien by Substitution of Bond

A Guide to Resources in the Law Library

 

 

 

SCOPE:

Bibliographic references related to dissolution of mechanic’s lien by substitution of surety bond. 

 

DEFINITIONS:

·         PURPOSE: “[Conn. Gen. Stats.] Section 49-37 is designed to facilitate the transfer of real property by creating a mechanism for removing a mechanic's lien from the land records and substituting for it a bond. Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 116, 438 A.2d 834 (1981); Six Carpenters, Inc. v. Beach Carpenters Corporation, 172 Conn. 1, 6, 372 A.2d 123 (1976). That purpose, however, does not preclude filing the bond as a way to challenge the lien.” PDS Engineering & Const. v. Double RS, 42 Conn. Sup. 460, 464, 627 A.2d 959 (1992).

·         ANY PERSON INTERESTED: “An examination of the pertinent statutes in our statutory scheme indicates that the legislative intent in enacting 49-37 (a) was to enable the owner or any person ‘interested’ in the property to obtain a dissolution of the mechanic's lien so long as the lienor's rights are not prejudiced in doing so.” Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 115, 438 A.2d 834  (1981).

·         “The gravamen of Dwight's [the intervening defendant Dwight Building Company] complaint is that there is no similar unconditional right to a hearing for a general contractor. For Dwight, the only recourse is to use 49-37 (a), which permits ‘any person interested’ in the real estate to dissolve a mechanic's lien by substituting a bond with surety for the lien. The principal or surety on the bond may then apply to the court for a hearing on the validity or the amount of the lien. General Statutes 49-37 (b)(1). Thus, a general contractor, as a person interested in the real estate, may indeed obtain a hearing but only at the cost of a surety bond. Henry F. Raab Connecticut, Inc. v. J.W. Fisher Co., 183 Conn. 108, 116, 438 A.2d 834 (1981).” General Electric Supply Co. v. SNETCO, 185 Conn. 583, 590-591, 441 A.2d 581 (1981).

 

STATUTES:

·         Conn. Gen. Stat. (2005)

§ 49-37. Dissolution or mechanic’s lien by substitution of bond. Joinder of actions on claim and bond. 

 

FORMS:

·         1A Douglass B. Wright and John H. Yeomans, Connecticut Legal Forms(1983).

§ 901.6. Application for dissolution of mechanic’s lien by substitution of bond

Order for notice and hearing

Order

Bond

Certification into court

·         Bond to discharge existing lien, 12A Am Jur Legal Forms  Mechanic’s Liens § 173:47.

 

COURT CASES:

·         River Dock & Pile, Inc. v. Ins. Co., North America, 57 Conn. App. 227, 232, 747 A.2d 1060  (2000). “The bond voluntarily furnished by the defendant must be treated the same as if the bond had been furnished pursuant to a court order in accordance with § 49-37 (a).”

·         Six Carpenters, Inc. v. Beach Carpenters Corporation, 172 Conn. 1, 6, 372 A.2d 123 (1976). “A reading of the pertinent statutes reveals that the legislative intent in enacting both [P.A. 75-48 § ]8(a) and its predecessor [Conn. Gen. Stats. § ]49-37 was to enable the owner or other person having an interest in the property to obtain release of the mechanic's lien so long as the lienor's rights are not thereby prejudiced. The lienor's rights are considered adequately protected if the landowner demonstrates a good-faith intention to contest the lien and substitutes a bond with surety in its place. Thus, while the statutory provisions are designed to facilitate the transfer of the property by dissolution of the lien, they are also intended to ensure the continued existence of assets out of which the lienor may satisfy his claim if he should later prevail and obtain a judgment on the merits of the mechanic's lien.

·          

ENCYCLOPEDIAS:

·         53 Am Jur 2d Mechanics’ Lien (1996)

§§  312-330. Satisfaction, discharge, or extinction

§§ 313 – 315. On giving bond or other undertaking

§ 313. Generally

§ 314. Rights and liabilities

§ 315. Discharge of surety

·         56 C.J.S. Mechanics’ Lien (1992).

§§ 252-288. Waiver, discharge, Release, and satisfaction

§§ 263-269. Bond or deposit to prevent or discharge lien

§ 263. Bond or undertaking in general

§ 264. Deposit in court in general

§ 265. Who may give security

§ 266. Form, requisites, and validity of bond

§ 267. Effect of bond or deposit

§ 268. Liability on bond

§ 269. Action on bond

 

TEXTS & TREATISES:

·         13 David E. Rosengren, Connecticut Practice Series, Connecticut Construction Law (2005).

Chapter 6. Mechanic’s Liens

§ 6:10. Dissolution of lien by bond substitution

·         Denis R. Caron and Geoffrey K. Milne, Connecticut Foreclosures: An Attorney’s Manual  of Practice and Procedure (4th ed. 2004).

Chapter 13. Mechanics’ Lien

§ 13.06. Dissolution of mechanic’s lien by substitution of bond

§ 13.06A. Qualified applicant

§ 13.06B. Venue

§ 13.06C. Hearing

§ 13.06D. Appeal

§ 13.07. Suit on bond

§ 13.07A. Effect on foreclosure

§ 13.08. Other post-bond litigation

·         Peter L. Costas, Managing ed., Connecticut Lawyers’ Deskbook: A Reference Manual (2d ed. 2000).

Mechanics’ Liens by Alan Robert Baker and Gina M. Varano

Basic principles

How is a mechanic’s lien discharged?

3. Dissolution of a mechanic’s lien by substitution of a surety bond

 

 

COMPILER:

Lawrence Cheeseman, Connecticut Judicial Department, Law Library at Middletown, One Court Street, Middletown, CT 06457 (860) 343-6560. Email

 

 

 

 


Section 7 

Foreclosure of

Mechanic’s Lien

A Guide to Resources in the Law Library

 

 

 

SCOPE:

Bibliographic references related to foreclosure of  a mechanic’s lien

 

TREATED ELSEWHERE:

·        Foreclosure (Mortgage) in Connecticut. http://www.jud.ct.gov/lawlib/Notebooks/Pathfinders/Foreclosure.PDF

 

DEFINITIONS:

·         ONE-YEAR PERIOD: “Section 49-39 is clear and unambiguous that a mechanics lien may remain in effect for as long as one year after it has been perfected. There can be no doubt that the one-year period begins to run the day following the day on which the lien is perfected.” Curran v. Samos, No. CV 03 0091852S (Conn. Super. Ct., J.D. Litchfield, Jan. 27, 2004), 36 Conn. L. Rptr. 409, 410 (March 15, 2004).

·         COMMENCED: “It has long been the law in this state that an action is deemed to be commenced on the date service is made on the defendant.” Stingone v. Elephant's Trunk Flea Market, 53 Conn. App. 725, 729, 732 A.2d 200  (1999)

·         TIME LIMITATION: “The plain intent of this statute [Conn. Gen. Stats. § 49-39] is to clear the title to the premises unless an action of foreclosure is brought within the time limited for the continuance of the lien.” Persky v. Puglisi, 101 Conn. 658, 666,127 A. 3511925). 

·         Lis Pendens: “The purpose of the lis pendens in the context of a mechanic's lien is the same as it is in any other situation in which real property is the subject of litigation; namely, it is intended to give constructive notice to persons seeking to purchase or encumber property after the recording of a lien or the commencement of a foreclosure suit.” Meyer, Kasindorf & Mancino v. Lafayette Bk. & Trust, 34 Conn. Sup. 84, 86-87, 377 A.2d 861 (1977).

 

STATUTES:

  • Conn. Gen. Stat. (2005)

§ 49-33(i). “Any mechanic's lien may be foreclosed in the same manner as a mortgage.”

§ 49-39. Time limitation of mechanic's lien. Action to foreclose privileged.

§ 52-325.  Notice of lis pendens.

 

FORMS:

·         Denis R. Caron and Geoffrey K. Milne, Connecticut Foreclosures: An Attorney’s Manual  of Practice and Procedure (4th ed. 2004).

Form 36. Complaint for foreclosure of mechanic’s lien

·         1A Douglass B. Wright and John H. Yeomans, Connecticut Legal Forms(1983).

§ 901.7. Foreclosure of Mechanic’s lien: Complaint

 

COURT CASES:

·         Gruss v. Miskinis, 130 Conn. 367, 369, 34 A.2d 600(1943). “If the warranty and mortgage deeds had been recorded before the plaintiff commenced to furnish materials, the mortgage would have had priority over the mechanic's lien.”

 

ENCYCLOPEDIAS:

·         53 Am Jur 2d Mechanics’ Lien (1996)

§§  312-330. Satisfaction, discharge, or extinction

§§ 313-315. On giving bond or other undertaking

·         56 C.J.S. Mechanics’ Lien (1992).

§§ 252-288. Waiver, discharge, Release, and satisfaction

·         Carol Vento, Annotation, Discharge Of Mortgage And Taking Back Of New Mortgage As Affecting Lien Intervening Between Old And New Mortgages, 43 ALR5th 519(1996).

 

TEXTS & TREATISES:

·         13 David E. Rosengren, Connecticut Practice Series, Connecticut Construction Law (2005).

Chapter 6. Mechanic’s liens

§ 6:7. Foreclosure

·         Denis R. Caron and Geoffrey K. Milne, Connecticut Foreclosures: An Attorney’s Manual  of Practice and Procedure (4th ed. 2004).

Chapter 13. Mechanics’ Lien

§ 13.02. The notice of lis pendens

§ 13.02A. Statutory framework

§ 13.02B. Tactical considerations

·         Peter L. Costas, Managing ed., Connecticut Lawyers’ Deskbook: A Reference Manual (2d ed. 2000).

Mechanics’ Liens by Alan Robert Baker and Gina M. Varano

How is a mechanic’s lien discharged?

2. Application for reduction or discharge of a mechanic’s lien

a.  Burden of proof at the hearing on the application to reduce or discharge the mechanic’s lien

b. Appeals

2. Invalidation of the mechanic’s lien as a matter of law

3. Dissolution of a mechanic’s lien by substitution of a surety

 

LAW REVIEWS:

·         Ellen L. Sostman and Duncan J. Forsyth, Mechanics’ Lien Waivers In Connecticut: The Myths And The Realities, 63 Conn. B.J. 195 (1989).

·         Edwin L. Baum, Note, Conditional Sale Contract—Waiver Of Mechanic’s Lien—Election Of Remedies—Hartlin v. Cody, 144 Conn. 499, 134 A.2d 245 (1957), 32 Conn. B.J. 299 (1958).

 

COMPILER:

Lawrence Cheeseman, Connecticut Judicial Department, Law Library at Middletown, One Court Street, Middletown, CT 06457 (860) 343-6560. Email

 

 

 


Glossary of Terms

 

 

 

 

AUTOMATIC EXTINGUISHMENT OF MECHANIC’S LIEN: “Any mechanic's lien which has expired because of failure to comply with the time limitations of section 49-39 is automatically extinguished and the continued existence of the lien unreleased of record in no way affects the record owner's title nor the marketability of the same.” Conn. Gen. Stat. § 49-40a (2005).

 

CERTIFICATE OF MECHANIC’S LIEN: “A mechanic's lien is not valid unless the person performing the services or furnishing the materials (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and (2) not later than thirty days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35.” Conn. Gen. Stat. § 49-34 (2005).

 

CLAIM: “The claim is a lien on the land, building and appurtenances or lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then on the plot of land and the claim takes precedence over any other encumbrance originating after the commencement of the services, or the furnishing of any such materials, subject to apportionment as provided in section 49-36.” Conn. Gen. Stat. § 49-33(b)(2005).

 

DISCHARGE or REDUCTION: “(a) Whenever one or more mechanics' liens are placed upon any real estate pursuant to sections 49-33, 49-34, 49-35 and 49-38, the owner of the real estate, if no action to foreclose the lien is then pending before any court, may make application, together with a proposed order and summons, to the superior court for the judicial district in which the lien may be foreclosed under the provisions of section 51-345, or to any judge thereof, that a hearing or hearings be held to determine whether the lien or liens should be discharged or reduced. The court or judge shall thereupon order reasonable notice of the application to be given to the lienor or lienors named therein and, if the application is not made by all owners of the real estate as may appear of record, shall order reasonable notice of the application to be given to all other such owners, and shall set a date or dates for the hearing or hearings to be held thereon. If the lienor or lienors or any owner entitled to notice is not a resident of this state, the notice shall be given by personal service, registered or certified mail, publication or such other method as the court or judge shall direct. At least four days' notice shall be given to the lienor, lienors or owners entitled to notice prior to the date of the hearing.” Conn. Gen. Stat. § 49-35a(2005).

 

FORECLOSURE: “Any mechanic's lien may be foreclosed in the same manner as a mortgage.” Conn. Gen. Stat. § 49-33(i)(2005).

 

LEASEHOLD INTEREST: “If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any real property, and the claim is by virtue of an agreement with or by consent of the lessee of such real property or of some person having authority from or rightfully acting for such lessee in procuring the materials or labor, then the leasehold interest in such real property is subject to the payment of the claim. This subsection shall not be construed to limit any of the rights or remedies available to such person under subsection (a) of this section.” Conn. Gen. Stat. § 49-33(h) (2005).

 

MECHANIC’S LIEN: “If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.” Conn. Gen. Stat. § 49-33(a)  (2005).

 

NOTICE OF INTENT: “(a) No person other than the original contractor for the construction, raising, removal or repairing of the building, or the development of any lot, or the site development or subdivision of any plot of land or a subcontractor whose contract with the original contractor is in writing and has been assented to in writing by the other party to the original contract, is entitled to claim any such mechanic's lien, unless, after commencing, and not later than ninety days after ceasing, to furnish materials or render services for such construction, raising, removal or repairing, such person gives written notice to the owner of the building, lot or plot of land and to the original contractor that he or she has furnished or commenced to furnish materials, or rendered or commenced to render services, and intends to claim a lien therefor on the building, lot or plot of land; provided an original contractor shall not be entitled to such notice, unless, not later than fifteen days after commencing the construction, raising, removal or repairing of the building, or the development of any lot, or the site development or subdivision of any plot of land, such original contractor lodges with the town clerk of the town in which the building, lot or plot of land is situated an affidavit in writing, which shall be recorded by the town clerk with deeds of land, (1) stating the name under which such original contractor conducts business, (2) stating the original contractor's business address, and (3) describing the building, lot or plot of land. The right of any person to claim a lien under this section shall not be affected by the failure of such affidavit to conform to the requirements of this section. The notice shall be served upon the owner or original contractor, if such owner or original contractor resides in the same town in which the building is being erected, raised, removed or repaired or the lot is being improved, or the plot of land is being improved or subdivided, by any indifferent person, state marshal or other proper officer, by leaving with such owner or original contractor or at such owner's or the original contractor's usual place of abode a true and attested copy thereof. If the owner or original contractor does not reside in such town, but has a known agent therein, the notice may be so served upon the agent, otherwise it may be served by any indifferent person, state marshal or other proper officer, by mailing a true and attested copy of the notice by registered or certified mail to the owner or original contractor at the place where such owner or the original contractor resides. If such copy is returned unclaimed, notice to such owner or original contractor shall be given by publication in accordance with the provisions of section 1-2. When there are two or more owners, or two or more original contractors, the notice shall be so served on each owner and on each original contractor. The notice, with the return of the person who served it endorsed thereon, shall be returned to the original maker of the notice not later than thirty days after the filing of the certificate pursuant to section 49-34.” Conn. Gen. Stat. § 49-35(a) (2005).

 

PRIORITIES IN MECHANIC’S LIENS:

·         “If any such liens exist in favor of two or more persons for materials furnished or services rendered in connection with the same construction, raising, removal or repairs of any building or any of its appurtenances, or in the improvement of any lot, or in the site development or subdivision of any plot of land, no one of those persons shall have any priority over another except as hereinafter provided.” Conn. Gen. Stat. § 49-33(c) (2005).

·         “If any instrument constituting a valid encumbrance upon such land other than a mechanic's lien is filed for record while the building is being constructed, raised, removed or repaired, or the lot is being improved, or the plot of land is being improved or subdivided, all such mechanic's liens originating prior to the filing of that instrument for record take precedence over that encumbrance and no such mechanic's lien shall have priority over any other such mechanic's lien. That encumbrance and all such mechanic's liens shall take precedence over any mechanic's lien which originates for materials furnished or services rendered after the filing of that instrument for record, but no one of the mechanic's liens originating after the filing of that instrument for record has precedence over another. If any lienor waives or releases his lien or claim of precedence to any such encumbrance, that lien shall be classed with and have no priority over liens originating subsequent to that encumbrance.”  Conn. Gen. Stat. § 49-33(d) (2005).

·         “If the warranty and mortgage deeds had been recorded before the plaintiff commenced to furnish materials, the mortgage would have had priority over the mechanic's lien.” Gruss v. Miskinis, 130 Conn. 367, 369, 34 A.2d 600(1943).

·          “ . . . the claim takes precedence over any other encumbrance originating after the commencement of the services, or the furnishing of any such materials, subject to apportionment as provided in section 49-36.” Conn. Gen. Stat. § 49-33(b) (2005).

 

PRIVILEGED ACTION:

 

REMOVAL OF BUILDING: “In the case of the removal of any building, no such mechanic's lien shall take precedence over any encumbrance upon the land to which such building has been removed which accrued before the building was removed upon the land.” Conn. Gen. Stat. § 49-33(g) (2005).

 

SUBCONTRACTORS:

 

SUBROGATION: “Under Connecticut law, a subcontractor's right to enforce a mechanic's lien against a property owner is based on the doctrine of subrogation . . . . The theory of subrogation allows the plaintiff to recover only to the extent the general contractor could recover from the defendants.” W. G. Glenney Co. v. Bianco, 27 Conn. App. 199, 201,  604 A.2d 1345 (1992).

 

TIME LIMITATIONS ON MECHANIC’S LIEN: “A mechanic's lien shall not continue in force for a longer period than one year after the lien has been perfected, unless the party claiming the lien commences an action to foreclose it, by complaint, cross-complaint or counterclaim, and records a notice of lis pendens in evidence thereof on the land records of the town in which the lien is recorded within one year from the date the lien was recorded or within sixty days of any final disposition of an appeal taken in accordance with section 49-35c, whichever is later. Each such lien, after the expiration of the one-year period or sixty-day period, as the case may be, without action commenced and notice thereof filed as aforesaid, shall be invalid and discharged as a matter of law . . . . With respect to any such lien which was validated in accordance with the provisions of section 49-37a, the one-year period or sixty-day period, as the case may be, shall toll from the date of the validation.” Conn. Gen. Stat. § 49-39 (2005).