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Lien Concern... Do I have a leg to stand on?


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2005 Merit Award Winner

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By Kevin in West Chester, OH on 7/21/2005


I thought I would ask to see if anyone had any insight on contract law, Lien's, etc..

Here's the situation. As my excavator started his work, he turned up some "bad soil', and this required that additional soil be brought to the site and the old soil be taken out.  As we were going through the process, I called the Origional Developer (who sold me the lot), and talked to him.  The Developer went out to the Job Site, and met with my Excavator - and said he would provide the soil/labor to 'fix' the lot.  This was Friday afternoon. 

My excavator, got impatient and the next day (Saturday), with out asking me and with out asking my developer, decided to find soil on his own pay for the soil, loading, and truck movement and do the compaction work on his own.  That Monday, the Developer called and said "I have your soil, when do you want it?".  At which point, less than one full business day later, it was too late because my excavator didn't want to wait a day.

My excavator, now says I owe him the $3,500 for him doing this work.. the cost of the soil, his normal trucking fee, his normal loader fee, etc.  I said that I don't have an obligation to pay, as my developer was going to provide all of this for free... if my Excavator waited a day.  The Developer says he'll help out with the cost - but only about $2,000 - which would have been his Cost to do the job (with no profit).  He says the $3,500 includes my Excavators profit.. which he isn't willing to pay since he could have done the job at his 'cost' basis. 

I have paid my excavator for the work that was in the Contract... the basement excavation, tree removal/ hauling, 1st half of the footer/drain tile work, etc.  However, I have not paid him for the work he did with out a contract, and with out my approval.  I am hoping the Developer pays a fair bit of it. 

Now, my excavator says he is going to file a lien against my property.  I don't think feel I should pay his cost for the following reasons

1) he did something with out my permission/approval which I could have had done for me for free

2) I did NOT have a contract with him saying I would pay for this work (I can't just go paint someone's house and then file a lien against them for not paying me... they didn't agree to have me do the work, so they have no obligation) 

3) I had a 'Fixed Price" bid to excavate my basement... just because it took more work, that is the risk he took giving me a fixed price.. had it been a Time & Material bid, I would have been more concerned.   If the job only took him a day, I don't think he would have been giving me money back because it was easier than intended.

I would appreciate anyone's thoughts on this matter.

Thanks,
Kevin


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By Jim in Austin, TX on 7/21/2005


Kevin,

First and foremost, you should obtain a lawyer. You should also have a lien release from your contractor prior to releasing any funds to him and definitely prior to releasing anymore funds to him.

Here are a couple of links that will familarize you with the current Ohio law regarding Mechanic's Liens:

http://onlinedocs.andersonpublishing.com/oh/lpExt.dll?f=templates&fn=main-h.htm&cp=PORC

Type "mechanic's lien" in the search window and get some coffee.

http://www.clelaw.lib.oh.us/Public/Misc/FAQs/Foreclose.html

Article is second section down.

I would also issue a stop-work order to your contractor until the issue is resolved. Having him out there working may be construed as your agreement to the charges. If any monies are outstanding, then prior to any payment, you should obtain a lien release releasing you from all outstanding liabilities. If he has hired day labor or contract labor outside his normal personnel, then you need lien releases from these people too. Again, prior to any release of funds.

Here is another good source of information for you and some contact numbers to the Attorney General's office: http://www2.ag.state.oh.us/sections/consumer/lib/pdf/HomeImprove.pdf

I would also get a notorized statement from the developer as to what role they played in this, since he seems to be a key in the whole process.

In any case, I highly suggest you contact legal representation to make sure you don't miss a step and have them review your other contracts as well.

I wish you luck on this.

Jim Gobel


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By James in Broadview Heights, OH on 7/21/2005


Hire an attorney is good advice....

 We had a lawn service for 3 years that filed a lien after we "owed them money". Our realtor contacted us out of state, and said they needed our number to send us a final bill.

They called, I said "send us a final", and in 1 WEEK we had a LIEN.

 

What a JOKE!

We paid them in a timely fashion, PLUS $600 for THEIR ATTORNEY.


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