There is a misconception that once a mechanics lien is filed or recorded against the property, it stays of record indefinitely, similar to a grant deed or mortgage. This is not the case. Each state has their specific rule as to how long it stays on the property. For example, in California, the lien is only good for 90 days after recording. Before that time you must bring a lawsuit to foreclose or the lien becomes null and void. Please consult our web site to see exactly what the time periods are for your specific state.
This is a misconception because of how the recorder's office works. When you file or record the mechanics lien, it becomes a matter of public record. If the time expires to file your lawsuit it doesn't automatically erase off the record, like a deleted computer program. It stays a matter of record, although it is not enforceable. For this reason, some people mistakenly think that as long as it stays on the record, it is valid.
For this reason, many lawyers use the phrase: "A mechanic's lien is no better than the lawsuit to foreclose it". This means that filing the lien is only the first step. Unless you follow up with a lawsuit to foreclose, at which time the judge decides the validity of lien, it will no longer have legal affect. Unfortunately, this usually means hiring an attorney to bring the lawsuit, which is not cheap. On the flip side, the good news is that few lawsuits go to judgment and foreclosure and are usually settled well before trial.
So what do you do if the time has expired to bring the lawsuit to foreclose? How can you take the lien off? Some states allow you to bring a special motion or petition to expunge the record but this can also be expensive. If you win, the court might also have the power to assess attorneys' fees against the stubborn party. The best thing is to have your attorney write a demand letter to the lien claimant indicating it is slandering title and is invalid. Enclose a release of mechanic's lien along with that the demand letter. This is a special type of release because it does not indicate payment has been made, but simply that the lien has expired and is being released. If this does not work, you can either leave it that way or bring a petition to expunge. Hopefully, you could also explain to your title company if you later sell, that as a matter of law, the time has expired and even though it is still of record, it is no longer enforceable.
Unfortunately, some lien claimants are stubborn and become so emotionally involved, they refuse to release the lien--even though it is no longer valid. In such cases you are essentially forced to bring some form of court action. But there is one other possibility. Contact your state contractor's license board and see if it is grounds for discipline for a contractor to keep in place an invalid lien. If that is the situation, you can bring a complaint yourself, without hiring an attorney, and force the hand of the contractor.
