Insurance & LiensQuestion 580 of 1632

A subcontractor records a mechanics' lien but fails to serve a copy of the lien (with the required proof of service affidavit) on the owner. Under California's strict-compliance rule, the most likely consequence is that the lien:

a.Remains fully enforceable, because recording is all that is needed
b.Is unenforceable as a matter of law, service being required
c.Converts automatically into a stop payment notice on the lender
d.Becomes a money judgment against the general contractor instead

Explanation

§8416(e) says it flatly: failure to serve the copy of the claim of mechanics lien as the section prescribes, including the Notice of Mechanics Lien required by §8416(a)(8), causes the claim of lien to be unenforceable as a matter of law. Recording is only half the job, which is (a)'s error. §8416(c) sets out how service is made — registered, certified or first-class mail evidenced by a certificate of mailing, addressed to the owner or reputed owner at a residence or place of business, or at the address shown by the building permit, or as §8174 otherwise provides — and if the owner cannot be served that way, the copy may go to the construction lender or to the original contractor instead. §8416(d) makes service complete when the mail is deposited, which is why the proof of service affidavit required by §8416(a)(7) appears on the face of the lien itself. (c) and (d) invent conversions no section provides: a stop payment notice is a separate remedy the claimant must give for itself, and a money judgment only ever comes from a court.

Law Reference: Civil Code §8416(a)(7)-(8), (c)-(e); §8174

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