Don’t Get Creative When Attempting To Enforce Mechanic’s Lien Rights

In Connecticut, the law pertaining to mechanic’s liens is well settled.  You will not come across many issues of first impression while trying to enforce a mechanic’s lien and, therefore, practitioners should not attempt to drive the proverbial square peg into a round hole.  Such an attempt was made (and failed) in a matter recently decided by the Connecticut Superior Court.

In that case, an assignee of a mortgage brought a foreclosure action and named a contractor as a defendant because the contractor’s mechanic’s lien was subsequent in right to the interest being foreclosed.  Normally, if the property proceeds all the way through the foreclosure process, a contractor holding a subordinate lien allows his interest in the property to expire because the only way to maintain the lien is to pay off the foreclosing mortgage but , in this case, the contractor did not give up that easily.

Here, the contractor alleged that the assignee became the “owner” of the property by virtue of the construction mortgage and, as such, was responsible to pay for the work that the contractor performed.  The court identified 2 issues that allowed the court to dispose of the contractor’s claim on summary judgment.  First, the idea that the holder of a mortgage could become the owner of a property directly contradicted the well settled law that the law of mortgages was built upon “legal fictions” and that a mortgage holder – while he has a legal interest in the property – is not the “owner.”  Second, the contractor’s argument would allow a junior encumbrancer to force out a senior lienholder, which is clearly impermissible.

I have had a successful construction law practice for many years and will not waste my time and your money pursuing frivolous courses of action.  If you need a mechanic’s lien done right, please give me a call at (860) 760-3317.

Scott Orenstein

 

 

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