Bill Text: CA AB457 | 2009-2010 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Liens.

Spectrum: Bipartisan Bill

Status: (Passed) 2009-08-06 - Chaptered by Secretary of State - Chapter 109, Statutes of 2009. [AB457 Detail]

Download: California-2009-AB457-Amended.html

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BILL NUMBER: AB 457	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 25, 2009

INTRODUCED BY   Assembly Member Monning
   (Coauthor: Assembly Member Emmerson)

                        FEBRUARY 24, 2009

    An act to repeal and add Section 3144 of the Civil Code,
relating to   An act to amend Sections 3084 and 3146 of
the Civil Code, relating to  liens.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 457, as amended, Monning. Liens. 
   The California Constitution gives workers the right to a mechanic'
s lien for the value of labor and materials provided for the
improvement of real property, and authorizes the Legislature to
provide for the speedy and efficient enforcement of these liens.
Existing law defines claim of lien in this regard, requiring it to
contain specified information. Existing law provides that a lien
claimant, after filing of the complaint to enforce the lien in the
proper court, may record in the office of the county recorder where
the property is located a notice of pending proceedings, and from the
time of the recording a purchaser or encumbrancer of the property is
deemed to have constructive notice of the pendency of the action.
 
   This bill would provide that the definition of "claim of lien" is
also the definition of "mechanic's lien" and would include within
this definition a Notice of Mechanic's Lien, which would contain
specified information regarding the legal effect of the lien. The
bill would require the mechanic's lien and the Notice of Mechanic's
Lien to be served, as specified, on the owner or reputed owner of the
property, or on the construction lender or the original contractor
if those parties cannot be served. The bill would require a proof of
service affidavit to be completed in a specified form and signed by
the person serving the Notice of Mechanic's Lien, and this form would
be included as part of the mechanic's lien or claim of lien. The
bill would provide that a failure to serve the mechanic's lien,
including the Notice of Mechanic's Lien, as required, would cause the
mechanic's lien to be unenforceable as a matter of law.  
    The bill would also revise the permissive provisions regarding
the recording of the complaint to enforce the lien, as described
above, to make them mandatory. The bill would make also make
correctional, style, and conforming changes.  
   Existing law provides that a lien for a private work of
improvement does not bind any property for more than 90 days after
the recording of the claim of lien unless an action to foreclose the
lien is commenced within that time in a proper court. The lien may
continue in force, however, if credit is given and notice of the
credit is recorded in the office of the county recorder after the
recording of the lien and prior to the expiration of the 90-day
period, but not longer than one year from the time of completion of
the work of improvement.  
   This bill would revise and clarify those provisions. The bill
would instead require the claimant to commence an action to enforce a
lien within 90 days after recordation of the claim of lien and to
record a notice of the pendency of the action, as specified, within
110 days after recordation of the claim of lien. If the claimant
fails to commence the action and record the notice within the time
required, the bill would provide that the claim of lien expires and
is unenforceable. These provisions would not apply if the claimant
and owner agree to extend credit and notice regarding the facts and
terms of the extension of credit is recorded either within 90 days
after recordation of the claim of lien or more than 90 days after
recordation but before a purchaser or encumbrancer for value and in
good faith acquires rights in the property. Under those
circumstances, the bill would provide that the lien expires and is
unenforceable if the claimant does not commence an action to enforce
the lien and record a notice of the pendency of the action within 90
days after the expiration of the credit, but, in no case, later than
one year after completion of the work of improvement. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 3084 of the   Civil
Code   is amended to read: 
   3084.  (a) "Claim of lien"  or "mechanic's lien"  means a
written statement, signed and verified by the claimant or by the
claimant's agent, containing all of the following:
   (1) A statement of the claimant's demand after deducting all just
credits and offsets.
   (2) The name of the owner or reputed owner, if known.
   (3) A general statement of the kind of labor, services, equipment,
or materials furnished by the claimant.
   (4) The name of the person by whom the claimant was employed or to
whom the claimant furnished the labor, services, equipment, or
materials.
   (5) A description of the site sufficient for identification. 
   (6) An affidavit completed and signed by the person serving the
Notice of Mechanic's Lien pursuant to paragraph (7) in the following
form: 

   PROOF OF SERVICE AFFIDAVIT  
   I, (insert name of person making service), declare that I served a
copy of the mechanic's lien by registered mail, certified mail, or
first-class mail, evidenced by a certificate of mailing, postage
prepaid, addressed to the following owner or reputed owner of the
property (insert name and title of person served) at the following
address______________________________________________, on this
date:____________.  
   Signed at___________________________, on this date___________.
 
    _(Signature of person making service) 

   (7) The following statement, printed in at least 10-point boldface
type. The letters of the last sentence shall be printed in uppercase
type, excepting the Internet Web site address of the Contractors'
State License Board, which shall be printed in lowercase type: 

   NOTICE OF MECHANIC'S LIEN  
   ATTENTION!  
   Upon the recording of the enclosed MECHANIC'S LIEN with the county
recorder's office of the county where the property is located, your
property is subject to the filing of a legal action seeking a
court-ordered foreclosure sale of the real property on which the lien
has been recorded. That legal action must be filed with the court no
later than 90 days after the date the mechanic's lien is recorded.
 
   The party identified in the mechanic's lien may have provided
labor or materials for improvements to your property and may not have
been paid for these items. You are receiving this notice because it
is a required step in filing a mechanic's lien foreclosure action
against your property. The foreclosure action will seek a sale of
your property in order to pay for unpaid labor, materials, or
improvements provided to your property. This may affect your ability
to borrow against, refinance, or sell the property until the mechanic'
s lien is released.  
   BECAUSE THE LIEN AFFECTS YOUR PROPERTY, YOU MAY WISH TO CONTACT AN
ATTORNEY IMMEDIATELY, OR FOR MORE INFORMATION ON MECHANIC'S LIENS GO
TO THE CONTRACTORS' STATE LICENSE BOARD WEB SITE AT www.cslb.ca.gov.


   (b) A  mechanic's lien or  claim of lien in otherwise
proper form, verified and containing the information required by this
section shall be accepted by the recorder for recording and shall be
deemed duly recorded without acknowledgment. 
   (c) (1) The mechanic's lien and the Notice of Mechanic's Lien
described in this section shall be served as follows:  
   (A) For an owner or reputed owner to be notified who resides in or
outside this state, by registered mail, certified mail, or
first-class mail, evidenced by a certificate of mailing, postage
prepaid, addressed to the owner or reputed owner at the owner's or
reputed owner's residence or place of business address or at the
address shown by the building permit on file with the authority
issuing a building permit for the work, or as otherwise provided in
subdivision (j) of Section 3097.  
   (B) If the owner or reputed owner cannot be served by this method,
then the notice may be given by registered mail, certified mail, or
first-class mail, evidenced by a certificate of mailing, postage
prepaid, addressed to the construction lender or to the original
contractor.  
   (2) Service by registered mail, certified mail, or first-class
mail, evidenced by a certificate of mailing, postage prepaid, is
complete at the time of the deposit of that first-class certified or
registered mail.  
   (d) Failure to serve the mechanic's lien, including the Notice of
Mechanic's Lien, as prescribed by this section, shall cause the
mechanic's lien to be unenforceable as a matter of law. 
   SEC. 2.    Section 3146 of the   Civil Code
  is amended to read: 
   3146.  After the filing of the complaint in the proper court 
to foreclose on the mechanic's lien  , the plaintiff 
may   shall  record in the office of the county
recorder of the county, or of the several counties in which the
property is situated, a notice of the pendency of  such
  the  proceedings, as provided in  Section
409   Title 4.5 (commencing with Section 405) of Part 2
 of the Code of Civil Procedure  on or before 20 days after
the filing of the mechanic's li   en   foreclosure
action  . Only from the time of recording  such
  that  notice shall a purchaser or encumbrancer of
the property affected thereby be deemed to have constructive notice
of the pendency of the action, and in that event only  if
  of  its pendency against parties designated by
their real names.
   SEC. 3.    The amendments proposed by this act shall
be operative on January 1, 2011.  
  SECTION 1.    Section 3144 of the Civil Code is
repealed.  
  SEC. 2.    Section 3144 is added to the Civil
Code, to read:
   3144.  (a) The claimant shall commence an action to enforce a lien
within 90 days after recordation of the claim of lien and shall
record a notice of the pendency of the action under Title 4.5
(commencing with Section 405) of Part 2 of the Code of Civil
Procedure within 110 days after recordation of the claim of lien. If
the claimant does not commence an action and record notice of the
pendency of the action within the time provided in this subdivision,
the claim of lien expires and is unenforceable.
   (b) Subdivision (a) does not apply if the claimant and owner agree
to extend credit, and notice of the fact and terms of the extension
of credit is recorded (1) within 90 days after recordation of the
claim of lien or (2) more than 90 days after recordation of the claim
of lien but before a purchaser or encumbrancer for value and in good
faith acquires rights in the property. In that event the claimant
shall commence an action to enforce the lien and record a notice of
the pendency of the action within 90 days after the expiration of the
credit, but in no case later than one year after completion of the
work of improvement. If the claimant does not commence an action and
record a notice of the pendency of the action within the time
provided in this subdivision, the claim of lien expires and is
unenforceable.