How to release a mechanics lien in California is the topic
of this blog post. Any California
mechanics lien can be released if the claimant does not attempt to enforce the
lien within 90 days after the claim of lien is recorded. The statutes in California that govern petitioning
for release of a mechanics lien are found in Civil Code sections 8110 through
8494.
A petition for an order releasing a mechanics lien can be
filed once more than 90 days have passed since the mechanics lien was recorded
with the County Recorder. This is due to
the fact that Civil Code section 8460(a) states that, “(a) The claimant shall
commence an action to enforce a lien within 90 days after recordation of the
claim of lien. If the claimant does not commence an action to enforce the lien
within that time, the claim of lien expires and is unenforceable.”
Civil Code section 8480 authorizes the filing of a petition
for an order to release a mechanics lien.
That code section states in pertinent part that,
““(a) The owner of property or the owner of any interest in
property subject to a claim of lien may petition the court for an order to
release the property from the claim of lien if the claimant has not commenced
an action to enforce the lien within the time provided in § 8460.”
Civil Code section 8482 requires that the owner of the
property must give the lien claimant notice demanding that they execute and
record a release of the mechanics lien at least 10 days before any petition is
filed.
Civil Code section 8102 specifies what information must be
included in the notice demanding the release of the mechanics lien. However it
should be noted that section 8102 states that so long as the notice given is
sufficient to notice is sufficient to substantially inform the person given
notice of the information required by this section and other information
required in the notice the notice is not invalid.
Civil Code section 8106 and 8110 specify how notice to the
lien claimant must be given.
Civil Code section 8106 states that, “Except as otherwise
provided by statute, notice under this part shall be given by any of the
following means:
(a) Personal delivery.
(b) Mail in the manner provided in Section 8110.
(c) Leaving the notice and mailing a copy in the manner
provided in Section 415.20 of the Code of Civil Procedure for service of
summons and complaint in a civil action.
Civil Code section 8110 states that, “Except as otherwise
provided by this part, notice by mail under this part shall be given by
registered or certified mail, express mail, or overnight delivery by an express
service carrier.”
Civil Code section 8484 specifies what must be included in
the petition for an order releasing a mechanics lien. It should be noted that
in addition to including other required information such as the date that the
claim of lien was recorded and the book and page number where the claim was
recorded, the petition must be verified.
Civil Code section 8484 states that,
“A petition for a release order shall be verified and shall
allege all of the following:
(a) The date of recordation of the claim of lien. A
certified copy of the claim of lien shall be attached to the petition.
(b) The county in which the claim of lien is recorded.
(c) The book and page or series number of the place in the
official records where the claim of lien is recorded.
(d) The legal description of the property subject to the
claim of lien.
(e) Whether an extension of credit has been granted under
Section 8460, if so to what date, and that the time for commencement of an
action to enforce the lien has expired.
(f) That the owner has given the claimant notice under
Section 8482 demanding that the claimant execute and record a release of the
lien and that the claimant is unable or unwilling to do so or cannot with
reasonable diligence be found.
(g) Whether an action to enforce the lien is pending.
(h) Whether the owner of the property or interest in the
property has filed for relief in bankruptcy or there is another restraint that
prevents the claimant from commencing an action to enforce the lien.”
Civil Code section 8486 requires that the hearing date on
the petition must be set no more than 30 days from the filing of the petition
by the clerk unless the Court orders otherwise and that notice of the hearing
must be served on the lien claimant at least 15 days before the hearing.
Civil Code section 8488 states that the petitioner has the
burden of showing at the hearing
that they have complied with the notice and service
requirements. The lien claimant has the burden of proof as to the validity of
the lien. Note that the prevailing party is entitled to reasonable attorney’s
fees.
The current Civil Code sections were revised in 2010 and
became effective in 2011. The prior law only allowed for an award of $1,000.00
in attorney’s fees to the prevailing party.
The new law makes it much more advantageous for a party to petition for
an order releasing an expired mechanics lien as if they prevail they may be
awarded the attorney’s fees that they incurred in filing the petition.
Attorneys or parties who would like to view a portion of a
sample 9 page petition for release of mechanics lien containing brief
instructions with citations to the Civil Code regarding the strict requirements
for service of the notice, a verification, notice of hearing, and proposed
order sold by the author can use the link shown below.
Attorneys or parties who would like to view or download a
sample demand letter for release of mechanics lien in California created by the
author can use the link shown below.
To view over 255 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro
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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
