In another post, we discussed the requirements for protecting your work with a mechanic’s lien. There are strict deadlines and often contractors don’t realize that they are being cheated until the deadlines have passed. There is no substitute for knowing what you are doing but if you miss the deadlines because of something the property owner said or did to mislead you, there may be alternatives.

Under certain circumstances, a contractor may have a right to impose an equitable claim of lien or even a judgment lien on real property. A common scenario where an equitable lien may apply is where a customer continually promises the contractor that he will pay the contractor for construction work performed but then fails or refuses to pay the balance after the lien window has expired. Some customers may even make partial payments in order to lull a contractor into believing he will pay the final balance. In that scenario, the contractor may be entitled an equitable claim of lien.

Equitable liens arise when (a) a written contract provides for charging some particular property with the debt or obligation, and (b) when declared by a court of equity out of general considerations of fairness as applied to the parties and the circumstances in the particular case. Further, there is the obvious possibility of suing either the person who signed the contract (contract claim) or the property owner who was benefits by your work (unjust enrichment) and obtaining a simple judgment lien, which would apply to all real estate owned by one of more of those persons.

Where a contractor supplies labor, materials, or equipment in the improvement of real estate, filing an equitable claim of lien upon the improved property as security for payment may be appropriate. The fact that a contractor may have a legal claim through construction or mechanic’s lien law does not preclude that contractor from seeking equitable relief by using the improved property as security for payment of the amount owed him. The Court will examine the facts of each case and determine whether it would be equitable (or “fair”) to impose a lien for the unpaid balance.

An equitable claim of lien may be an option for a contractor who has missed the filing deadline for a construction lien.

Our thanks to Attorney Vince Heuser, Louisville, KY, (502) 458-5879, for the suggestion of the idea in this post.

Vincent F. Heuser, Jr.
3600 Goldsmith Lane
Louisville KY 40220
(502) 458-5879
https://heuserlawoffice.com

Wow! What a mess! Under the Families First Coronavirus Recovery Act, employers get a tax credit for wages paid out for emergency leave because of COVID-19 absences.

Figuring it out seemed ridiculously complicated, so we turned to Vince Heuser Attorney to get is up to speed. According to Mr. Heuser, the new law provides for payments to employees who are personally affected by COVID-19 or who have to care for family members who are affected.

Mr. Heuser created a table for us:
FFCRA-table

The employer then files a form (IRS form 7200) with the IRS to get the tax credit on the monthly or quarterly payroll return, Form 941:
f7200

It seems pretty straightforward with such a clear explanation! According to Mr. Heuser, employers can get more information here:
IRS page on the Tax Credit forms

Save Your Receipts and Records!
The tax credit is administered by the IRS so some employers will be subject to an IRS audit. DOL advises that an employer should retain appropriate documentation, including any needed substantiation to support the credit. For example, if an employee takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or a child care provider is unavailable, due to COVID-19, it is advisable that the employer require documentation like that under the rules for FMLA requests. Documentation might also include such things as a notice that has been posted on a government, school or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care or child care provider.

Certification requirements under the FMLA remain in effect for employees taking leave for one of the existing qualifying reasons under the FMLA. If an employee is taking leave beyond the two weeks of emergency paid sick leave because of a medical condition related to COVID-19 that constitutes a serious health condition, an employee must provide medical certifications under FMLA if required by an employer.

Don’t forget the Tax Credit for Health Insurance Coverage
Employers can get an additional tax credit based on costs to maintain health insurance coverage for an employee during the FFCRA-covered leave period. How this will be handled is not yet clear.

Our thanks to the Heuser Law Office, 3600 Goldsmith Ln, Louisville, KY 40220, for the information.

Vincent F. Heuser, Jr.
3600 Goldsmith Lane
Louisville KY 40220
(502) 458-5879
https://heuserlawoffice.com

Now, this isn’t legal advice. It’s just an outline of a process that lots of guys get wrong — mechanics liens — and what we see lawyers doing to get it right. We offer links to certain resources by permission, as does the law library, but this is not advice on how to practice law or handle your case. This material is provided so that you can have an intelligent conversation with your lawyer.

Before we jump into the details, we should say that filing a mechanic’s lien without having a written contract is like building a house without a foundation. The first thing a craftsman should get right is having the work described in writing and an estimate and terms signed by the owner, general contractor or other customer.  This is the only way you will be able to recover your attorney fees.

If you have not read the post on this and followed the advice then you should start here:
Contracts- Avoid Arguments and Lawsuits

Did you check the records to see who the real owner is before you bid on the job? Why not? Next time know who you are dealing with and get it in writing.
Find the Property Owner’s true legal name
In counties other than Jefferson, you may have to call the county Property Valuation Administrator for owner information or referral to their website.
According to attorney Vince Heuser, most counties have a taxpayer lookup page or a third party fee-based service that provides this information.

So there’s a Problem. It is too late?
Ok, so you didn’t verify the actual owner up front, are you doing it as soon as you got a hint of a  problem?  You should do this on any job where you can’t afford to be ripped off. If payment is overdue by 45 days or more, call your lawyer! The lawyers can check in minutes and save you thousands of dollars. (For a small fee, of course.)

“NOTICES ARE REQUIRED, NOT OPTIONAL.”
Once the work has actually ended, you may have to send certain notices.  Let’s hope its not too late.  If you did not deal with the owner of a property, you have to send a notice of your intent to hold the property responsible. You have 75 days if the job was owner-occupied or under $1000 and 120 days if not owner-occupied and over $1000.  KRS §376.010 sets out the rules.  Take a look at:
Mechanic’s Liens — Filing of statement — Notice to owner

There are different styles of drafting documents and as long as a notice complies with the statute, it should be fine.  We’ve found some forms out there to give you an idea what that might look like.  Realize that there are many styles.  Here is one example:

http://heuserlawoffice.com/forms/MECLIEN1-Notice-of-Intent-to-Lien.DOC
http://heuserlawoffice.com/forms/MECLIEN1-Notice-of-Intent-to-Lien.pdf
 
GET PROOF OF MAILING — ASK THE POSTAL CLERK FOR A “CERTIFICATE OF MAILING”.
 
Whew.  Glad that’s done on time! Now we can just sit back and wait for the check!  Oh wait!  Was that the correct person for sending the notice?  Hope so…

Within six (6) month of the end of the work, the next thing you have to do is prepare and file the lien statement. This is filed and sent regardless of who you dealt with. Again we got samples from the Heuser Law Office:
http://heuserlawoffice.com/forms/MECLIEN2-Statement-of-Lien.DOC
http://heuserlawoffice.com/forms/MECLIEN2-Statement-of-Lien.pdf

Don’t forget to include the property description which you can copy from the Deed.
Mechanics Lien Statement with Property Description
The Mechanics Lien Statement Must Include the Property Description to be Valid!

GET PROOF OF MAILING THE COPY TO THE OWNER — ASK THE POSTAL CLERK FOR A CERTIFICATE OF MAILING.
 
FILE AND SERVE THE STATEMENT OF MECHANICS LIEN
So now what do you do with this fine form?  It gets filed in the county clerk’s office where the property is located. It must be filed within six (6) months of the last work date and a copy sent to the owner of the property. That’s two notices if you didn’t deal with the owner. You might want to read the statute:
Filing of Statement (This is a second mailing.)

After proper notice and proper filing, you still may have to sue to get paid. Good thing you have an “attorney fees” clause in your proposal or estimate form! Otherwise, you might not find a lawyer you can afford.  The reason for a signed proposal is to shift the cost of collection to any deadbeats who don’t pay. You don’t want your profits going for attorney fees!

By the way, this isn’t legal advice. Don’t rely on it without talking to an attorney!

PS Hope you didn’t miss the deadlines but if you did… visit:
Alternatives to Mechanic’s Liens

PPS:
Our thanks to
Vincent F. Heuser, Jr.
3600 Goldsmith Lane
Louisville KY 40220
(502) 458-5879
https://heuserlawoffice.com
for sample forms and some clarifications.

We’ve been watching the filings of mechanics liens and noticing how the big guys always seems to win and the little guys often get the short end of the stick. We think there’s more to this than size. The main difference is preparation. Are you unprepared for business? We’d like to offer a proposal to improve the situation.
As a contractor, a craftsman or a worker, you have the right to expect to be paid for your work. Funny thing is, most working guys think they can’t afford a lawyer. It seems to us that he can’t afford to be without one. There are two times you can consult an attorney:

• before things are a mess.
• after things are a mess

Did I mentions that the former is much cheaper than the latter?

The first thing a contractor has to realize is that he is entering a contract. An unprepared contractor says to the customer, “I’ll do some work for you and you’ll for it. You’re good for it, right?” Often such a verbal contract will work out. Of course, the time it doesn’t work out will involve a bigger money or a more difficult job and the loss will be a big deal. That’s when you will end up paying your profits to the lawyer just to get your expenses back and that’s if your lucky.

A more professional approach is to use estimate or proposal forms with a cost estimate block and an acceptance and authorization signed by the customer. You’ll have a lot fewer arguments when you get it in writing. We contacted the Heuser Law Office for permission to copy some templates from their website that might be just what you need. This is a suggested style: Proposal1 or  Proposal2
(Created from templates found at Heuser Law Office in MS Publisher and MS Word)

When you start the relationship off right, you are in a better position to complaint about breaches and break ups.  The business contract is a lot like a pre-nup in life.  When the relationship is good, it seems unnecessary.  When the romance is over, you’ll b e glad you did it.    And if you want to really do right, you can have the form printed on multi-part paper so you can give the customer a signed “carbon” copy.

Call
Vincent F. Heuser, Jr.
3600 Goldsmith Lane
Louisville KY 40220
(502) 458-5879
https://heuserlawoffice.com
for other form and printing suggestions.