Understanding A Mechanic’s Lien Consent Requirement
Our mechanic’s lien statute states that the mechanic’s lien claim arises “by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected …” Conn. Gen. Stat. § 49-33. Thus, there is no question you have lien rights if your contract is directly with the owner, but, if you do not have a contract directly with the owner, then you must claim that your work is based upon the “consent of the owner.” In that regard, our Supreme Court has stated:
A landowner does not subject his property to a mechanic’s lien by simply allowing work to be done on it. Nor does the owner’s knowledge that the work is being done subject the property to a mechanic’s lien. The consent meant by the statute must be a consent that indicates an agreement that the owner of at least the land shall be, or may be, liable for the materials or labor. Although an express contract is not necessary for such a consent, the services must be furnished under circumstances indicating an implied contract by the owner to pay for them.
Centerbrook, Architects & Planners v. Laurel Nursing Services, Inc., 224 Conn. 580, 591. This language does not take into account subcontractors and/or suppliers that claim through a general contractor, who has a direct contract with the owner. However, there has never been any question as to whether that general contractor’s subcontractor and/or supplier has lien rights. There are, however, a couple of instances where consent may be an issue.
In absence of an express, written contract between the owner and the person performing the work for the owner, our law requires an implied contract. The classic example of an implied contract is when you walk into a barber shop, sit in the barber’s chair, and receive a haircut without there ever having been any discussion about payment being required. In that case, there is an implied contract because it is understood that services are being provided for which payment is expected. In the construction context, a court will typically find an implied contract exists if an owner requests certain work be performed that the contractor then performs without objection from the owner despite there being no specific agreement on terms is then performed. The amount due for such work will be determined based upon the reasonable value of the work performed. The reason for that result is because, despite the lack of an express agreement, the parties’ conduct indicates there was an agreement the same way your conduct of sitting in the barber’s chair and receiving a haircut indicates an agreement.
One case that often creates confusion is when the general contractor is performing work on behalf of a tenant. In most cases, the only lien rights that then exist are against the tenant’s interest in the property or the “leasehold” interest. In that situation, liens against the landlord, i.e. the property owner, are often discharged because the owner did not “consent” to the work being performed. However, depending upon the language of the lease, there may be a way to argue that the owner did in fact consent. Thus, when confronted with work performed for a tenant on leased property, you do not have the time or the ability to obtain a copy of the lease if it is not recorded on the land records. Therefore, in those situations, it is best to file mechanic’s liens against both the owner’s and the tenant’s interests in the property to make sure you have attached the correct legal interest.
If you should have any questions about how to properly file a mechanic’s lien, please give me a call.
Scott Orenstein
(203) 640-8825