90 Days to File Suit

#9 of the Top 10 Misconceptions about Mechanic's Liens

After recording a mechanic's lien, a claimant has 90 days to file suit on the mechanic's lien, otherwise the claimant loses his entire mechanic's lien rights

90 days to file suit?

The deadline to file suit on a recorded mechanic's lien is 90 days after the date that the mechanic's lien was recorded.

The status of the project is not directly relevant to the deadline for filing suit on a particular mechanic's lien.

What is important is the date on which the mechanic's lien is recorded.

If the claimant fails to file a lawsuit within 91 days after the mechanic's lien is recorded, the claimant must provide or record a mechanic's lien release, or risk that the owner will file an action in court seeking the release of the mechanic's lien, on which the law allows the owner to recover his attorneys' fees.

But here's the most important part, the part that explains why you don't necessarily have just 90 days to file suit...

If 91 days pass after a mechanic's lien is recorded but the deadline to record a mechanic's lien has not yet passed (based upon the rules affecting the deadline to record a mechanic's lien), the claimant still has the legal right to record a new mechanic's lien if the previous mechanic's lien has been released.

Mechanic's Lien Release vs. statutory mechanic's lien "waiver and release"

There is a distinction between a mechanic's lien release and a statutory mechanic's lien "Waiver and Release" pursuant to California Civil Code section 3262.

  • A mechanic's lien release relates only to the particular mechanic's lien that is referenced by the release;
  • A section 3262 Waiver and Release forever releases the claimant's mechanic's lien rights related to the project, whether through a specific date (via a "progress" Waiver and Release) or entirely (via a "final" Waiver and Release).
So there you have it... "90 days to file suit or you completely lose your lien rights" is not necessarily an accurate statement.

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Above article written by:
David J. Barnier,
Partner at Barker Olmsted and Barnier, APLC

Disclaimer -
This article presents a discussion of general laws, rules, and strategies related to mechanic's liens and other construction issues and is intended to provide background information that will assist the reader in understanding the general laws and rules that apply. Examples and hypotheticals are described in this article for the purpose of illustrating these general rules, however no information within this article should be relied upon when analyzing a specific real-life situation.

For each real-life situation that the reader experiences, it is necessary that the reader consult with an experienced construction law attorney to ensure that the reader's specific situation is evaluated. The laws and rules affecting mechanic's liens and construction are extremely complex and no attorney can provide in a writing an explanation that will empower the reader to use only the information in an article to evaluate how the law will apply to a specific real-life situation. In other words, the reader should not rely on the information in this article when addressing a particular real-life situation.

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