Full question:
Can a construction company file a lien against a property or estate for work performed without approval from the owner? There was no signed contract by the owner that approved the contractor to perform the work.
- Category: Real Property
- Subcategory: Liens
- Date:
- State: Kansas
Answer:
There are two separate questions implicit in your question. The first question is who can file a lien? The second question is what are the elements of a valid lien claim under Kansas law?
In Kansas as in most other states, merely filing a notice of lien claim does not create a valid lien.
A statute that may or may not bar the claim of lien is the statute of frauds, which exists in some form in every state, and which requires certain contracts to be both n writing and signed by the person sought to be charged in order to be enforceable. The relevant Kansas statute of frauds reads as follows:
"33-106. Specific cases where writing required. No action shall be brought whereby to charge a party upon any special promise to answer for the debt, default or miscarriage of another person; or to charge any executor or administrator upon any special promise to answer damages out of his own estate; or to charge any person upon any agreement made upon consideration of marriage; or upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.
History: G.S. 1868, ch. 43, § 6; L. 1905, ch. 266, § 1; March 21; R.S. 1923, 33-106."
The relevant Kansas statute of frauds set forth above does not include a building contract (except one that explicitly is for a period greater than year); therefore, the relevant Kansas statute of frauds appears not to bar the contractor's lien claim.
Be aware that merely filing a notice of lien, as a general rule throughout the states, does not create an enforceable lien upon the property. The lienor (the contractor) first files a notice of claim of lien not with a court, but in the deed records. That notice of claim of lien must be filed within so many days or months of the last date the lienor provided labor or materials to the site. After filing the notice of claim of lien in the deed records in Kansas, the lienor then has several months - about four months or so, generally - in which to commence a judicial proceeding against the landowner in which the lienor must prove to the court, over over the defense of the landowner, that the lienor (the contractor) has a legally valid claim against the landowner. The landowner can either wait until served with notice of the judicial proceeding to defend against the contractor's claim, or the landowner can file a motion to expunge the notice of claim of lien immediately without waiting for the lienor's (contractor's) judicial action.
I have given legal information. The landowner may want to get legal advice from a Kansas lawyer regarding this situation. For that reason, I have included a link below to US Legal's website regarding Kansas real-estate lawyers. Please read the other links that appear below this response, for those links contain relevant legal information that may educate the landowner generally about these legal issues.
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.
