Illinois Mechanics Liens

How Not to Do It

 

Here you can look at an actual mechanics lien that someone hired an attorney to handle, but unfortunately selected an attorney who was not familiar with fundamental aspects of how to properly establish a mechanics lien.

 Errors

(Following this list of errors, you can click to see the actual documents.)

The lien identifies the wrong owner. Unfortunately, the attorney and his client probably relied on the person with whom they spoke at the property to determine who owned the property. This caused them to misidentify the owner - the developer had declared a condominium and transferred the majority of the property to others, namely the unit owners. This can be a difficult part of the lien if the recorder's office is behind in their work, but that was not a concern in this particular case.
The lien misidentifies the property. The misidentification of the owner leads to a misidentification of the property. The property no longer exists in this form, and accordingly the legal description is deficient. The correct thing to do would be to identify the property as it existed at the time of doing the work, not as it existed two years earlier (which is essentially what they did here).
 The lien claims a nonexistent contract with the "owner." Because the lien misidentifies the "owner," it misstates with whom the contract was made. As a consequence, the procedure for properly establishing a lien with an owner cannot have been followed, and no legitimate lien can exist.

SUICIDE! The attorney signed the form. The attorney should never be the one to sign the form, unless the attorney was actually on the job site swinging a hammer, and doesn't intend to litigate the lien (and probably not even then). This is true for several reasons - First, if the attorney wasn't on the job site, there is someone else who is in a better position to state what work was done, and when, etc., and thus would make a more convincing witness about what the lien claims. Second, because attorneys are prohibited from litigating a case in which they act as a witness, the attorney to whom the company turned for help is now eliminated from litigating the matter. Third, the attorney will now likely be required to submit to a deposition by the property owner's attorney, since he has sworn under oath that it contains true statements in the lien form. Fourth and most importantly, if anything in this form is false, it constitutes a false statement under oath, which is perjury and one of the reasons that attorneys get disbarred. The contractor's attorney can't afford to have this lien litigated, since if any of the above three items are determined by a judge to be inaccurate, he will likely have a problem with his license, and a pretty good malpractice claim against him. OOPS!

 

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Copyright 2002, Thomas J. Westgard