A common law lien is a legal recourse in some states in which the claimant places a lien on real or personal property of the owner, provided that the claim doesn't fall under any of three categories: 1) statutory, 2) security interest or 3) judicial. A common law lien allows the lien holder to attach a claim to the property if the owner has failed to pay him for services rendered or work performed. In essence, the lien allows the claimant to pursue and collect on a debt.
The Lien Holder
File a statement of Intent to Record a Common Law Lien against the owner's property with the county recorder in the county where the real or personal property is located. Your statement must include information on the property owner, the address and description of the property's physical location and the amount of the debt you claim is owed. You must file within 60 days of the date you last performed work or provided service. The county official will send a copy of the Intent to Record to the property owner.
Allow 30 days for a response from the property owner.
File suit against the property owner within 30 days if he responds with a Request to Commence Suit. If you don't file suit within 30 days, the lien becomes void.
File a Certificate of Satisfaction if you and the property owner reach an agreement about settling the debt. The certificate releases the lien against the property. Record the certificate with the same county recorder where you filed the statement of Intent to Record a Common Law Lien.
The Property Owner
Send the lien holder a Notice of Request to Commence Suit within 30 days if you wish to challenge the lien holder's claim. Send the notice by registered mail or by certified mail, return receipt requested, to the address on the lien holder's statement. The lien holder has 30 days to file suit. If you agree that you owe the lien holder a debt, then contact the lien holder to try to negotiate a settlement.
File an affidavit of service with the county recorder to request the release of the common law lien after 30 days if the lien holder has not filed suit. Include on the affidavit the date the lien holder received the Notice of Request to Commence Suit.
Write an additional statement that the lien holder has not filed suit and that the courts have not rendered an unsatisfied judgment. Attach a copy of the Notice of Request to Commence Suit and a copy of the certified mail return receipt indicating when you mailed the notice to the lien holder. Be sure to keep copies of the notice and the affidavit records.
- Be sure you understand the filing deadlines. Don't allow too much time to elapse before filing the necessary forms. A satisfactory judgment defaults to the defendant in many cases.
- If you file a common law lien and the property owner can show that he or she suffered damages, the property owner can sue you for the amount of the damages and for reasonable attorney fees.
- Although common law liens are popular legal instruments, petitioners cannot place such liens against the property of public officials because of nonperformance of public duties.
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