Keeping A Mechanic’s Lien Checklist? Here’s One More Thing to Add to Your Mechanic’s Lien Checklist: A Check for Recording Fees.
It’s a detailed and sometimes cumbersome process to ensure your mechanic’s lien rights are secured. The process is more than painstakingly researching the project, properly serving the correct parties, and ensuring you have sufficient backup documentation to support your claim. Did you know your mechanic’s lien could be rejected by the recording office if you fail to provide a check for the exact amount of the recording fees? It happened to one lien claimant in New York, when it sent two checks to the recorder’s office and neither check was for the correct amount.
Quick Look at New York Lien Deadlines
Before we go through the case, let’s review the mechanic’s lien deadline. For commercial projects in New York, the lien should be filed within 8 months from last furnishing. The lien claimant in this case last furnished March 12, 2020, which means its mechanic’s lien deadline was November 12, 2020.
Now, I’m just going to put this out there: in general, the claimant was cutting it close, especially in an unpaid balance lien state. Remember, in New York, the lien is enforceable for the unpaid portion of the contract, either what is owed by the owner or what is owed to your customer.
OK, onto the case.
The Twice Rejected Mechanic’s Lien
In this case, the lien claimant mailed its mechanic’s lien to the Kings County Clerk for recording. Included with its lien was a $35 check and a $10 check.
The clerk received the two checks and the mechanic’s lien on November 4, 2020; the lien was dated October 29, 2020, and the date of last furnishing was March 12, 2020.
The clerk rejected the lien because the claimant failed to include a check for the correct fees. The clerk returned the lien, the two checks, and a note explaining the rejection, to the lien claimant.
Under New York’s Civil Practice Law & Rules 8021(b)(4), the fee to file a notice of mechanic’s lien within the city of New York (Kings County) is $30.
“For filing a notice of mechanics lien, or a notice of lending, in counties within the city of New York, thirty dollars, and in all other counties, fifteen dollars. No fee shall be charged for filing a notice or order continuing, amending or cancelling same, but when a mechanics lien is discharged by deposit with a clerk of the court, there shall be a fee of three dollars in all counties other than those within the city of New York.”
Then, on November 13, 2020, the clerk received the same lien for recording, this time with a check for the correct fee. However, based on the last furnishing date listed on the mechanic’s lien (03/12/2020), the deadline to file the lien was November 12, 2020. So, the clerk rejected the lien and returned the lien to the claimant because the lien was “past the date of filing as per statute of limitations 8 months.”
Can We Blame COVID?
The lien claimant did not dispute the second rejection; understanding the lien was received a day late. However, the claimant did dispute the original rejection.
The lien claimant argued it couldn’t timely correct the initial filing issue (incorrect check amount) because the Kings County Clerk’s Office was closed to the public during the pandemic. Further arguing, the clerk should have called the claimant to see what it should do with the check for $35.
Perhaps the lien claimant should have called the clerk’s office, because as it turns out, the clerk’s office was not closed to the public during the pandemic.
“The Kings County Clerk’s Office was not and is not closed to the public. The Kings County Courthouse where The Kings County Clerk’s Office is located at all relevant times was open to the public, and a person seeking to file in person a notice of mechanics lien at could do so. Persons filing were not permitted to enter room 189, however a representative was available at the entrance to Room 189 to review the notice and if found to be in compliance with statutory requirements, accept it on behalf of The Kings County Clerk’s Office.”
This means, the lien claimant had an opportunity to timely record its lien in person. Unfortunately, since the lien claimant failed to do so, its mechanic’s lien rights were lost.
Nope, can’t blame COVID.
Double Check: Check Your Check and Check Your List
Add a check to your checklist – not a checkmark check but a monetary check – never mind. Don’t forget to confirm with the recording office the cost of the fees to record the document(s) and then include a check for the exact amount of the recording fees. Failing to include payment or including an incorrect payment, is enough to have a lien filing rejected by the clerk of courts. Also, don’t wait until the last minute. While this claimant couldn’t blame COVID, COVID has put a hamper on timely mail and caused building closures.
Is it too soon to say, “A day late and a dollar short?”
