Friday, March 1, 2013

Liens revisited: Nonstatutory and artisan's liens.

In addition to mechanic's liens, agricultural and harvester's liens, there are a few other liens worth mentioning: nonstatutory and artisan's liens. The liens I have discussed do not constitute an exhaustive list. But mechanic's liens are the most common, and most attorneys will never encounter the others in practice. It does not hurt to know what unconventional remedies may be out there for you.

A nonstatutory lien is a common law lien. Ironically, nonstatutory liens are generally provided in a statute. If you think you have lien rights but the facts do not fit within another lien type, you can file a nonstatutory lien. You would file in district court, and then there would be a hearing to determine the lien's validity. If valid, you would then file the lien with the county recorder, which would effectively "perfect" the lien.

If you worked on personal property (movable property) and did not get paid, you can file an artisan's lien. Mechanic's liens attach to buildings on property. Artisan's liens attach to personal property. To enforce an artisan's lien, you would need to have possession of the personal property, and you cannot commit a trespass to obtain possession of the personal property.

There are notice requirements, but if you follow those you would be able to sell the personal property on commercially reasonable terms. You would also only be able to sell items to repay the amount owed. If you are owed $2K and there are multiple items involved, you cannot sell more than $2K. You are only entitled to the amount you are owed. It is important to stress that if you do not follow the notice provisions, you would be in big trouble and possibly liable for conversion.

If this sounds too onerous, you could likely sue for breach of contract. Even when it does not involve liens or a breach of contract, if you have been wronged, there probably are multiple legal processes you can use to obtain payment.

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