In Louisiana, liens are an effective tool to collect monies owed, but they can also cause massive headaches for both the lienholder who improperly files a lien as well as the owner of the effected property.
Most contractors that are owed money immediately think, “file a lien”. Filing a lien is as simple as filling out a form at the local clerk of court’s office. The clerk is required to record all liens presented without making a decision as to their validity. For this reason, many liens are improperly filed and suffer from fatal defects making them unenforceable.
Common Defects in Liens
The rules controlling liens are found in La. R.S. §9:4801 et seq. Common mistakes include failing to list the legal property description of the property, failing to provide proper notice, and failing to include all of the statutorily mandated content. Another problem is an untimely filed lien. In Louisiana, liens on construction projects must be filed within a certain amount of time based on the filing of the project’s substantial completion, notice of termination or default.
How to Cancel a Lien?
If a lien has been improperly filed, Louisiana law requires that a written demand be sent requesting cancellation of the lien within ten days of the receipt of the demand. The law further provides that if a person who has received a proper request for cancellation and refuses to do so may be liable for attorney fees and damages resulting from the failure.
If ten days pass and the improperly filed lien is not canceled, the challenging party has to resort to suing the recorder of the lien, the clerk of court, in a mandamus action. Fortunately, a mandamus action is a summary proceeding and can be heard as soon as two days after service on the improper filer.