Bad Contractor Filing a Lien?

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I am working on a home improvement project in which I am filing plans with the county; for this particular project the county requires review and sign off from a structural engineer.

I couldn't find any good sources for recommendations so basically went down the phone book; I found most structural engineers don't work residential projects, they chase the big money. It took a while, but I finally found someone willing to assist.

The structural engineer came out, talked and did some rough measurements and then told me he would have plans to me within 3 days. His rate was $75/hr and he estimated 3 hours. I didn't sign anything, it was just a handshake and we'll be in touch soon.

The date he committed came and went, he never called or emailed, I caught him on the phone several days past his commitment and he told me he was busy, but would have plans to me the next day. The next day came and went and again no plans, I let another day pass and then called him again. He once again said he was busy and told me he would email me plans that afternoon or evening. Again I got nothing so the next day tried to contact him, I also followed up by writing an email detailing the poor communication. In the email and voice mail I told him he had until mid afternoon to get back to me with his intentions otherwise I would cancel my business relationship with him and go elsewhere. Mid afternoon came, hadn't heard from him so called and left another voice mail and email saying I would not be doing any business with him and will not be paying him for any work he starts.

I didn't hear from him until a few days later when I receive a letter with the Structural Plans postmarked one day after I sent him notice of not doing business with him. At the time I received the plans from him I had already signed a contract with a different engineer and they had begun work. I just basically ignored and tossed aside the plans the original engineer sent. Today I received a call with a blocked number that I answered and it was the original structural engineer requesting payment. I told him I wasn't paying, he did unauthorized work...

Long conversation short he threatened to place a lien on our property and/or bring us to small claims court. My question is can he just place a lean on my property without a judgement? With no contract and me sending notice via email can he still hold me to pay him for work he did? Not only is the letter he sent postmarked a day after I wrote him, so is the letter he sent me. I guess he could claim he didn't get the email or voice mails, but seems highly unlikely? Just want to see what headaches I have headed my way with this? I am most concerned about him being able to file a lien and then I have to sue him to get it undone, is that how it works?

Thanks! BTW this is in Colorado.

edited to correctly spell lien..











 

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Sending him a bill may turn this into a blood feud and provoke him to actually file the lien even if it makes no financi... (more)

Crazytree (Sep. 14, 2013 @ 4:17p) |

Is the guy a licensed Structural PE in your state? Did he put his "PE stamp" on these poor quality drawings he sent you... (more)

Wizard83 (Sep. 14, 2013 @ 8:50p) |

Good point.

Also it should be noted that many states do not allow a lien to be filed if the engineer is unlicensed.

SteveG... (more)

sgogo (Sep. 15, 2013 @ 11:16a) |

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Did he bill you the $225 you agreed to or a different amount ?
Did you pay more for the second guy than the first guy ?

I would go on the offensive and demand he immediately pay you the difference you had to pay above his quote to get the work done. The next day I would sue him in small claims for that amount.

He will be shocked . That's when you can settle and agree to dismiss the lawsuit in exchange for a mutual release of all claims

Lien not lean.

Do you have his estimate of $75 at 3 hours in writing, this would seem to cap his lien at $225 unless he has you authorizing further work. You also say "With no contract...." so there was no writing from him at all about scope of work? Trying to sort out the facts. Regardless of course all it takes is modest filing fees to create legal headaches and that goes both ways as SIS suggested you might pursue.

The best defense is a good offense. Sue him first.

I never thought of that. Good advice sis.

This is based on my experience in new york (so consult your local laws). To file a lien against a property you first have to go to court, file the paperwork, and have the lien served against the property owner. As SIS and RealestateMatt said above, you need to make the first move.

Anybody can hire an attorney to sue someone else. They cost the company nothing to hire, since the attorney will generally be working on a percentage of what they win. You then have to hire an attorney to defend the lawsuit, and they never come free. They will drag you into court, and bleed you until you finally settle.

If you sue him first (even in small claims court), you will put him on the defensive. He will have to hire an attorney to defend rather than pursue, which means money out of pocket for him. Also, as an individual, you can bring the suit about by yourself, but as a company, they legally must hire an attorney to defend themselves (they cannot represent themselves). This becomes a very slippery slope for the company, and the cost of settling almost always is cheaper than the cost of following the litigation through.

If you are knowledgeable enough, you can hammer them with paperwork requests to keep his attorneys busy. You are out your time only, and he is out a ton of money.

Take my advice (personal experience) - DO NOT LET HIM SUE YOU FIRST!

He can put a lien on your property without going to court.  Oral contracts are valid. However, he has to sue you in order to collect.  If he does not sue, the lien will eventually be removed.

For only $225 I would just ignore the matter until if or when he files a lawsuit.

There are better places on the internet where you can get proper legal advice from real lawyers.

how can the bad contractor file a lien on the property when there is nothing writing detailing the work to be done and the cost? doesn't the bad contractor need some proof of such a deal?

SUCKISSTAPLES said:   Did he bill you the $225 you agreed to or a different amount ?
Did you pay more for the second guy than the first guy ?

I would go on the offensive and demand he immediately pay you the difference you had to pay above his quote to get the work done. The next day I would sue him in small claims for that amount.

He will be shocked . That's when you can settle and agree to dismiss the lawsuit in exchange for a mutual release of all claims

  
Yes, he billed me the $225 that I agreed to verbally when we first met.
Yes I paid the second guy significantly more, just over $1000.

The quality of work is night and day between the first and second guy, I am not sure I could even use the plans that he sent, they are hand written scratch work and have vague details. Had I gotten the plans in a timely matter and gotten what he sent me I would be questioning his work as insufficient.

How would you go on the offensive and demand immediate payment of the difference? email, certified letter?

My concerns are three fold:
- $225 is a lot of money, but I really don't want to be tied up in court for this amount, however I also don't want to just throw money away; i.e. if it is more than 5 hours of my time I effectively start losing money.
- Can a lien be filed without sufficient documentation, I get that to collect he has to sue, but I can forsee a huge headache if I try to sell in the future and have a lein hanging over me. If he files a lien for $225 on my property can I file a $775 lein on his property for the difference between his quote and what I paid someone else?
- If he files a lein what are my options to get it removed? Can you do like you do with debt collectors and require them to validate the claim?

Thanks

Have you contacted the contractors state license board in Colorado? Better yet, go to their website. They will have all the information you need regarding contractors and lien requirements. 

Every state has statutory requirements for filing a mechanic's lien or contractor's lien against a homeowners property. There are definitive time periods in which a contractor is allowed to file; if these are not met, no lien against the property can inure. 

Here is the deal on the verbal contract with the structural engineer. It is binding so long as it is below the statutory minimum required for a written contract. What you have is a quasi-contract (at minimum) which is valid and enforced in equity. You are estopped from claiming ignorance. Here the principle of laches comes into play; a recipient of a service can't idly watch the service be performed then claim foul. It won't fly and a court will never find in your favor. 

The only legal basis I see to invalidate the contract - is whether the structural engineer's delay in providing the Structural Plans was unreasonable. Absent a "time is of the essence" clause with a definitive due date, the law requires performance within a "reasonable period of time." You could take this issue to small claims court. It is doubtful however, that you will prevail. And, it does not matter whether you bring suit or the structural engineer brings suit. There is no home court advantage for filing first. 

Giving the structural engineer the $225.00 is a small price to pay to end this issue. Next time, if you have specific needs that have to be met - like immediate performance, make up an impromptu written contract. It does not have to be anything special, just enough to protect your interest. 

 

RealEstateMatt said:   The best defense is a good offense. Sue him first.
  
That makes no sense.  On what grounds would you sue him? 
If he files a lien over $225, he's really not that busy - so make him file.  It wouldn't be worth my time.  If he does file, simply challenge it.  I'll be shocked if he does.

And getting a PE, we're talking a Professional Engineer, with a stamp for $225?  That's pretty amazing.  It's more amazing if he actually spent 3 hours on it.  He's way underpaid.

In the future, many lumber wholesalers (ProBuild, etc) will provide a structural engineer in exchange for your business in some cases.  IF you can draw plans, they can stamp them and provide materials.

IrateConsumer said:   Have you contacted the contractors state license board in Colorado? Better yet, go to their website. They will have all the information you need regarding contractors and lien requirements. 

Every state has statutory requirements for filing a mechanic's lien or contractor's lien against a homeowners property. There are definitive time periods in which a contractor is allowed to file; if these are not met, no lien against the property can inure. 

Here is the deal on the verbal contract with the structural engineer. It is binding so long as it is below the statutory minimum required for a written contract. What you have is a quasi-contract (at minimum) which is valid and enforced in equity. You are estopped from claiming ignorance. Here the principle of laches comes into play; a recipient of a service can't idly watch the service be performed then claim foul. It won't fly and a court will never find in your favor. 

The only legal basis I see to invalidate the contract - is whether the structural engineer's delay in providing the Structural Plans was unreasonable. Absent a "time is of the essence" clause with a definitive due date, the law requires performance within a "reasonable period of time." You could take this issue to small claims court. It is doubtful however, that you will prevail. And, it does not matter whether you bring suit or the structural engineer brings suit. There is no home court advantage for filing first. 

Giving the structural engineer the $225.00 is a small price to pay to end this issue. Next time, if you have specific needs that have to be met - like immediate performance, make up an impromptu written contract. It does not have to be anything special, just enough to protect your interest. 

 


I haven't contacted the state licence board, but did visit the website as suggested; it has a lot of legal jargon that I don't fully understand, but I did gather there are things I can do to contest a lein if one is filed against me, probably with legal representation.

The thing I don't understand with what you said is why it would make sense to pay the structural engineer and next time if I have specific needs to make a written contract. In my case the structural engineer verbally agreed to do work and verbally agreed on a date to complete the work. When the date passed and he failed to meet the commitment I gave him 2 more chances and then sent him notice verbally via voice mail and in a written email to cease work. I then received the plan dated a day after I told him to cease work. I suppose he could say he didn't check his email, but he never responded to the email or voicemail, just sent some half cooked plans. If he doesn't uphold his part of the verbal contract to deliver when promised, why would I be held to wait indefinitely for him to produce. Additionally why would the onus be on the recipient of work to sure up a contract, isn't it usually the one being paid that needs to protect themselves. If I verbally agree to pay someone $20 to mow my grass are you saying I should have got that in writing because they could say I had agreed to pay them $100 and didn't?

Sorry if I am misreading this? It just seems to me that without a written contract it would be the person providing the service with the money to lose??
 

dcg9381 said:   
RealEstateMatt said:   The best defense is a good offense. Sue him first.
  
That makes no sense.  On what grounds would you sue him? 
If he files a lien over $225, he's really not that busy - so make him file.  It wouldn't be worth my time.  If he does file, simply challenge it.  I'll be shocked if he does.

And getting a PE, we're talking a Professional Engineer, with a stamp for $225?  That's pretty amazing.  It's more amazing if he actually spent 3 hours on it.  He's way underpaid.

In the future, many lumber wholesalers (ProBuild, etc) will provide a structural engineer in exchange for your business in some cases.  IF you can draw plans, they can stamp them and provide materials.

  
Thanks. I searched and called for hours to find a structural engineer, it seems most work larger projects and didn't want anything residential. I finally found "reputable" ones from the county building inspectors, they were hesitant, but after repeat calls gave in and quietly gave me a few. I then found the going rate is $125-$150/hr, I really didn't know going into it with the first guy, had I known the low price it would have been a red flag. Thanks for the recommendation on lumber wholesalers I'll try that if needed for future projects. 

master44 said:   SUCKISSTAPLES said:   Did he bill you the $225 you agreed to or a different amount ?
Did you pay more for the second guy than the first guy ?

I would go on the offensive and demand he immediately pay you the difference you had to pay above his quote to get the work done. The next day I would sue him in small claims for that amount.

He will be shocked . That's when you can settle and agree to dismiss the lawsuit in exchange for a mutual release of all claims

  
Yes, he billed me the $225 that I agreed to verbally when we first met.
Yes I paid the second guy significantly more, just over $1000.

The quality of work is night and day between the first and second guy, I am not sure I could even use the plans that he sent, they are hand written scratch work and have vague details. Had I gotten the plans in a timely matter and gotten what he sent me I would be questioning his work as insufficient.

How would you go on the offensive and demand immediate payment of the difference? email, certified letter?

My concerns are three fold:
- $225 is a lot of money, but I really don't want to be tied up in court for this amount, however I also don't want to just throw money away; i.e. if it is more than 5 hours of my time I effectively start losing money.
- Can a lien be filed without sufficient documentation, I get that to collect he has to sue, but I can forsee a huge headache if I try to sell in the future and have a lein hanging over me. If he files a lien for $225 on my property can I file a $775 lein on his property for the difference between his quote and what I paid someone else?
- If he files a lein what are my options to get it removed? Can you do like you do with debt collectors and require them to validate the claim?

Thanks

He can generally file a mechanics lien on your home without him needing to sue you. It's very simple for him to do so. Whether he actually plans to do it or is just bluffing is unknown .

You can't file a mechanics lien against him (you didnt do work on his home.) you must go to court, prevail , allow time for him to pay , and if he refuses , only then you can use judgment collection remedies such as property liens , wage or bank garnishment , etc.

Mechanics liens are intended to be simple ways for contractor to get paid without using the court system .

No, you cannot remove a lien by just doing a collection style dispute letter. It will take far more time and effort . If you think $225 is not worth your time that's fine , pay it and be done with it

As I said, if this was my home , I would demand the $775 extra I had to pay to have someone else do the job. So is it worth $775 to you? I would likely use the 2nd guy as my witness to explain why this Guys work was not compliant with industry standard.

You'll have to decide what you want to do.

Master44 - the reason why you need to put a "time is of the essence" clause in writing - has to do with proof. You are contemplating litigation, albeit small claims court. You have to prove a case in front of a judge or a judge pro temp (a lawyer who sits as a judge). 

The small claims court judge expects you to provide evidence. As the saying goes - a verbal contract is worth the paper it is printed upon. But lets say for argument sake that the structural engineer admits that you expected the structural plans in say two days... Unless a "time is of the essence" clause is specified, the court will interpret that even if a due date is set, performance can be met within a reasonable period of time.

"Time is of the essence" are the magic words. They are good in general contracts and especially in contracts for sale of real estate. In the sale of a house, many a buyer or seller gets irritated when someone doesn't close on a specific date. A court won't give the harmed party relief - so long as the closing occurs within a reasonable period of time. However, if a "time is of the essence" clause is part of the contract, the erring party will have to pay liquidated damages or other provisions (if they have been specified in the contract.)



 

We had a contractor's lien put on a property by a guy who went over his estimate by 100% and was mad when he got fired. It was a pain to get it removed - and I'm not 100% sure it is removed - but it was zeroed out by court order.

damn dude you spelled it lean and u got corrected and then you edited the title and you still mispelled it. clearly you need to pay the bill and then take an english class bro.

1. In CA a defectively filed mechanic's lien can be extinguished and attorney's fees awarded as to the emcumbror.
2. Small claims judges generally have as much knowledge of mechanic's lien law as does a house fern.

if you hire the contractor to install a fire extingusiher in the house is the defectively filed lien self extingushing???

Send a certified or receipt requested letter. Explain in the letter, the misunderstanding and the poor quality of work done after the termination of your oral contract. That you are not interested in sending additional monies to your attorney to clear this matter up, but if need be you are prepared to do that if necessary. Then make a clear offer to settle this misunderstanding and enclose a check for $100 with "payment in full" for services provided written on the check. Unless he's a nutcase, he'll cash the check. Lot simpler to settle, before things get personal or out of control.

And yes, you're getting ripped off . . . but he feels the same way. How much do you (both) want to spend to see if you're right? Even if you win, it's not worth your time or the aggravation. And don't expect one engineer to testified against another.  It will require a subpoena and (very expensive) court appearance fees.     JMHO, I'm not a lawyer

Crazytree said:   1. In CA a defectively filed mechanic's lien can be extinguished and attorney's fees awarded as to the emcumbror.
2. Small claims judges generally have as much knowledge of mechanic's lien law as does a house fern.

  What if the house fern is inside a Holiday Inn Express??

Thanks for making me laugh this morning.

master44 said:   
Long conversation short he threatened to place a lean on our property and/or bring us to small claims court. My question is can he just place a lean on my property without a judgement? With no contract and me sending notice via email can he still hold me to pay him for work he did? Not only is the letter he sent postmarked a day after I wrote him, so is the letter he sent me. I guess he could claim he didn't get the email or voice mails, but seems highly unlikely? Just want to see what headaches I have headed my way with this? I am most concerned about him being able to file a lean and then I have to sue him to get it undone, is that how it works?

Thanks! BTW this is in Colorado.

 

  Emphasis mine.

A threat is usually a substitute for doing something.  If you ignore it, chances are he'll do nothing. 

Some incorrect information in this thread.

1- Lien is easy to do. Companies on the internet do it for $39. I highly doubt he will lien for $225. I think he is bluffing.

2- Most liens put on for this amount were not done correctly.It takes knowing the block/lot and the proper names of everybody, the correct license numbers, etc. Some states require all sorts of forms prior to liening (pre-lien, intent to lien, etc - He wont do all this for $225).

3 - Countersuing is crazy for this amount of money.

4 - Most liens are good only for 1 year, with possibility of 1 year extension (at a fee). If he wants to recoup $225, and the house is not sold (or in need of a refinance) within the first year, he would have to invest more to extend it... not likely at $225.

5 - If he ever tried to foreclose the lien, it would cost more than $225. Not gonna happen.

6 - If he tried to foreclose lien, he would lose based upon your email.

7 - There is a time limit for most liens. Every state is different. Find out how long from last date of work you have, so you know the deadline. Even if he does not lien, he can still sue... lien just makes an annoyance for the owner without the extra cost of suit.

8 - If he does file the lien, you can bond the lien off. Google it...

I would send a documented letter stating the facts (certified) and maybe hint that you might sue for the difference. Then forget it.

I have placed liens on properties, bonded liens off, and gotten many liens someone placed on a property disqualified. I think the smallest was for ~$30k...below that it isnt worth it generally.

Good Luck!
SteveG

While I do not "engineer" I do provide drawings for the construction industry. Based on his price and time commitment failure he is most likely doing this on the side of his real job where he may serve as an engineer.

I would ignore, ignore, ignore. He will go away, the amount of money and the time he would have to commit to a lien is not worth it, he is bluffing.

If you really want to get on the offensive, send him an invoice for back charges of the difference to bring his work up to completion. If he wishes to pursue it further, tell him you'll credit your invoice if he does the same and you can both quietly walk away.

Sending him a bill may turn this into a blood feud and provoke him to actually file the lien even if it makes no financial sense to do so.

Is the guy a licensed Structural PE in your state? Did he put his "PE stamp" on these poor quality drawings he sent you? In most states it is illegal to practice engineering to the public without being a PE. If he continues to threatens to file a lien you could threaten to complain to the Engineering License board for your state and submit his work and the emails as proof of unprofessional conduct. Might get him fined by the Board or his license suspended


Cheers and Good Luck OP

Wizard83 said:   Is the guy a licensed Structural PE in your state? Did he put his "PE stamp" on these poor quality drawings he sent you? In most states it is illegal to practice engineering to the public without being a PE. If he continues to threatens to file a lien you could threaten to complain to the Engineering License board for your state and submit his work and the emails as proof of unprofessional conduct. Might get him fined by the Board or his license suspended


Cheers and Good Luck OP

Good point.

Also it should be noted that many states do not allow a lien to be filed if the engineer is unlicensed.

SteveG 



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