Full question:
I need to file a warehouseman's lien against a former handyman who breached contract/covenant. He has a large amount of goods stored on my property and I will not relinquish until he pays for back rent, storage and other torts. I cannot find the proper legal forms to be legal about this issue.
- Category: Judgment Liens
- Date:
- State: Nevada
Answer:
The proper form will partly depend on the nature of the relationship to the handyman, such as whether he is a tenant or whether you operate a storage facility for hire. This service provides information of a general legal nature and if you wish to purchase forms, I have provided links below to forms so you may determine if they suit your needs.
A lien is a claim to property for the payment of a debt, typically one connected to the property. It is the right to retain the lawful possession of the property of another until the owner fulfills a legal duty to the person holding the property. The right of lien generally arises by operation of law, but in some cases it is created by express contract. There are two kinds of liens; particular and general. When a person claims a right to retain property, due to money or labor invested in that property, it is a particular lien. Liens may arise by express contract; from implied contract, as from general or particular usage of trade; or by legal relation between the parties, such as created with common carriers and inn keepers. To create a valid lien, it is essential that the party claiming a lien should have the absolute property or ownership of the thing or, at least, a right to vest it; that the party claiming the lien should have an actual or constructive, possession, with the assent of the party against whom the claim is made; that the lien should arise upon an agreement, express or implied and not be for a limited or specific purpose that contradicts the express terms or the clear, intent of the contract. In certain circumstances, the lien holder may foreclose on the property if the debt is not paid in full. Liens can generally be removed by the payment of the amount owed. This payment can occur at any time up to and including the stage at which the closing documents for the sale of the property are signed.
When a contract has been breached, the party who fails to uphold their end of the bargain may be sued for a breach of contract. If the plaintiff is successful, the court can award money damages. The plaintiff is then called a judgment creditor (JC) and the defendant is a judgment debtor (JD). If the JD fails to pay the judgment, the JC can ask the court to create a judgment lien to attach the assets of the JD.
When a person who is not a landlord agrees to hold property for another, a bailment is created. When the person holding the property, called the bailee, is not being compensated, it is called a gratutous bailment and the bailee must use reasonable care to protect the property.
There are different types of bailments- "bailments for hire" in which the custodian (bailee) is paid, "constructive bailment" when the circumstances create an obligation upon the custodian to protect the goods, and "gratuitous bailment" in which there is no payment, but the bailee is still responsible. There is a lower standard of care imposed upon the bailee in a gratuitous bailment, and the parties may contract to hold the bailee free from liability in any bailment. As the law of bailments establishes a lower standard of care for the bailee in a gratuitous bailment agreement, such an agreement or receipt should indicate explicitly that the bailee is acting without compensation. When a bailment is for the exclusive benefit of the bailee, the bailee owes a duty of extraordinary care. If the bailment is for the mutual benefit of the bailee and bailor, the bailee owes a duty of ordinary care. A gratuitous bailee must use only slight care and is liable only for gross negligence. To create a bailment, the alleged bailee must have actual physical control with the intent to possess. Physical control and intent to possess will be interpreted according to the expectations of the parties. If a court thinks that liability would be unexpected or unfair, it can usually find that the defendant did not have “physical control” or “intent to possess.” For example, courts are more likely to find a bailment of a car exists in a garage with an attendant than in a park and lock garage. Florida statutes require a landlord to use reasonable care in storing abandoned property of a former tenant. A landlord will be liable for damage caused by the landlord's deliberate or negligent act.
To obtain a statutory lien as a warehouseman, the property must be a qualified facility. Please see the statutes below to determine applicability:
The following are NV statutes:
NRS 108.4733 "Facility" defined.
"Facility" means real property divided into individual spaces for storing
personal property which are rented or leased to individual occupants and to
which the individual occupant has access. The term does not include a
garage or storage area in a private residence.
NRS 108.4753 Lien of owner of facility; priority of lien created by
document of title.
1. The owner of a facility and his heirs, assignees or successors have a
lien on all personal property located at the facility for the rent, labor
or other charges incurred by the owner pursuant to a rental agreement and
for those expenses necessarily incurred by the owner to preserve, sell or
otherwise dispose of the personal property.
2. Any lien created by a document of title for a motor vehicle or boat
has priority over a lien attaching to that motor vehicle or boat pursuant
to NRS 108.473 to 108.4783, inclusive.
NRS 108.440 Right of bailee to sell property on bailor's failure to pay
storage charges.
1. When any property to be placed in storage has been received by any
person, firm or corporation acting as bailee for hire of the property to be
placed in storage in any room, building or other structure belonging to or
leased by the bailee, the bailee may, in accordance with the provisions of
NRS 108.450, sell the property at public auction to the highest bidder if
the bailor has failed to pay the storage charges on the property.
2. The sale must not be made in any manner which is contrary to any
agreement between the bailor and the bailee.
NRS 108.450 Notice and advertisement of sale; redemption of property.
1. The bailee shall notify the bailor of the intended sale as follows:
(a) The notice must be delivered in person or sent by mail to the last
known address of the bailor.
(b) The notice must include a statement of the claim, a description of
the goods, a demand for full payment and a statement that the goods will be
advertised for sale and sold at public auction unless payment is made in
full before the time and date of the sale specified in the notice.
2. An advertisement of the sale must be published once a week for 2 weeks
consecutively in a newspaper of general circulation in the town or township
where the bailee resides. The advertisement must include a description of
the goods, the name of the person on whose account they are being held, and
the time and place of the sale. The first publication of the advertisement
must take place at least 15 days after the date on which the notice was
delivered or mailed, and the sale must take place at least 15 days after
the first publication. If there is no newspaper of general circulation in
the town or township where the bailee resides, the notice may be given by
posting notices in three or more public places in the town or township for
at least 10 days before the sale.
3. The bailor may redeem his property at any time before the public
auction by paying to the bailee the amount of storage charges, charges for
late payment, costs of advertising and storage charges incurred by the
bailee on account of the property. A bailor has no right to redeem his
property if it has been sold at an auction held at the time and place
specified in the notice.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
