The Quarterly Newsletter for Commercial Real Estate Women | San Francisco
Taking Charge of Change
3rd Quarter 2012
LEGAL TIPS | Mechanic’s Lien Laws: Changes are Coming © 2012 Treven Tilbury, Esquire, and Arthur Woodward, Esquire, Downey Brand LLP In 2011, the lien statutes were amended to require that owners be served with notice of a recorded lien. In the past, the property owner might not find out a lien had been recorded until a lawsuit was filed, at which point resolution was much more difficult and costly. The spotlight on this issue occurred in the single-family residential world as unscrupulous general contractors failed to pay subcontractors, who would in turn lien the homeowner’s property. Though the issue was spotted in residential construction, the change in the statute affects both commercial and residential projects. Effective July 1, 2012, California law regarding construction remedies changed again, and on a broader scale. The 2012 changes work in conjunction with the 2011 changes. The widesweeping new statutes will result in many technical differences, together with a number of substantive changes as well. The good news is that the new statutory scheme works fundamentally in the same way as the old statutory structure, and many of the improvements benefit property owners. Nevertheless, there are a number of changes that affect every participant in the construction process.
• Revised Forms — One of the most practical changes to the code is that the forms that have been used for years must be revised. Release forms and preliminary 20-day notice (now just “preliminary notice”) form will now follow a new statutory form. Property owners that are hiring contractors should be aware that they will be receiving new 20-day notice forms, and that the lien-release forms to use are also changing. (For the new release language for all release forms, see California Civil Code sections 81328138; for the new Preliminary Notice language, see California Civil Code (for private works) sections 8102, 8200, 8202 and (for public works) sections 8102, 9300, 9302, 9303.) • Statute Numbering Changes — Though this change may not be critical to non-attorneys, the code numbering scheme has changed. Where the construction remedy statutes used to be found at California Civil Code sections 3082-3268, they are now found at California Civil Code sections 8000-9566. • Terminology Changes — Many of the common terms used in the past are now changed, though they have similar (but not necessarily identical) definitions.
For example, a “Preliminary 20-Day Notice” is now a “Preliminary Notice.” A “Materialman” is now a “Material Supplier.” The “Original Contractor” is now referred to as a “Direct Contractor” (a change clearly intended to address projects with multiple prime contractors). A “stop notice” is now referred to as a “stop payment notice.” • Direct Contractors Must Give Preliminary Notices — Under the previous law, persons that had a direct contract with the owner were not required to provide preliminary 20-day notices. The new law requires claimants with a direct contract with the owner to provide a Preliminary Notice to the construction lender. While this is a major change for general contractors, property owners should also be aware in the event their lender asks why (continued on page 2)
ISSUE HIGHLIGHTS: EVERYTHING EVENTS {P2} CHANGING THE FACE OF SFMOMA {P3} MEMBERSHIP MADNESS PHOTOS {P4} CREW SF CONVERSATIONS {P5} MEMBER SUCCESSES {P6} BEYOND LEED CERTIFICATION {P7} MEET OUR NEW MEMBERS {P9} OUR SPONSORS {P12}
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