This paper will address time periods within which a Notice of Lien may be filed on both a Private and Public project. Private improvements may be liened at any time during the progress of the work or within 8 months after last performance of work or furnishment of material. If the project consists of a residential home the period for filing is reduced to 4 months and the lien must state whether the property consists of a residential home. The mechanics lien remains valid for one year provided the affidavit of service of lien is properly completed and filed. The one year time period is measured from filing in the County Clerks Office.
The lienor is required to serve a copy of the Notice of Lien on the property Owner, Contractor and/or Subcontractor within 30 days of filing of the lien. Then, within 35 days after the lien is filed, the lienor must file an affidavit of service of the lien with the County Clerk. Failure to file the affidavit of service within the designated time period shall terminate the lien.
If, within the one-year period, an action is properly commenced to foreclose the lien and a Notice of Pendency (a/k/a Lis Pendens) is filed with the County Clerk then the lien continues to be effective. Failure to file, and renew after three years, the Notice of Pendency will be fatal to the lien.
If no lien foreclosure action has been commenced a lien, other than a lien on a single family property, may be extended for one year by filing an affidavit of extension of lien in the County Clerk’s office in which the lien was originally filed. Following the one-year extension period, the lien will automatically terminate unless further extended for an additional year by a Judge or Justice of a court of record and thereafter for two successive years by Court Order. If a foreclosure action has been commenced a lien extension is unnecessary.
A lien on real property of a single family home, or property to be improved by a single family home, may only be extended by Court Order and each extension can be for no more than one year and is limited to two successive years.
A Public Improvement lien significantly differs from a private lien. A lien on Public Improvement does not attach to the public property but rather only to those funds remaining to be paid under the contract to improve public property. Hence if all funds have been expended the lien will be ineffective and fail.
A Public Improvement Lien must be filed with the head of the department, or bureau, having charge of the construction AND with the Comptroller of the state or financial officer of the public corporation or other person charged with custody and disbursement of the public funds of the specific project. Mandatory service of the Notice of lien must also be served on the Contractor, Subcontractor or legal representative and an affidavit of service must be filed simultaneous with filing, or 5 days before, with the head of construction and financial officer. Failure to file the affidavit of service is fatal to the lien.
A Public Improvement Lien may be filed at any time before the public project is completed and accepted and within 30 days after completion and acceptance. It is noted the filing time limitation period is not measured from last furnishment of labor or material, but rather completion and acceptance of the project.
A Public Improvement Lien is valid for a full one-year period. If an action to foreclose the lien occurs during that time, and a Notice of Pendency is filed, no extension is required. It is critical that a Notice of Pendency be filed or the lien will automatically expire. If a foreclosure action is not initiated within that year the lien extension form must be filed with the same parties that received the initial lien. A Public Improvement Lien may be extended for one year and, thereafter in two successive years by Court Order.
The above time periods for filing the Notice of Lien and affidavit of service are critical to the survival of a lien. Furthermore, it is prudent to file the lien, on either a public or a private project, as early as feasible to insure the retention of sufficient funds to satisfy the lien.
| Walter G. Breakell Senior Counsel 10 Airline Drive, Suite 205 Albany, NY 12205 Phone: (518) 869-5552 Email: wbreakell@hhk.com |
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