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Petition for release of mechanics lien in California

A petition for release of mechanics lien in California is the topic of this blog post. The rules governing petitioning for release of a mechanics lien in California are found in Civil Code sections 8110 through 8494.

A petition for an order releasing a mechanics lien can be filed once more than 90 days have passed since the mechanics lien was recorded with the County Recorder. This is due to the fact that Civil Code section 8460(a) states that, “(a) The claimant shall commence an action to enforce a lien within 90 days after recordation of the claim of lien. If the claimant does not commence an action to enforce the lien within that time, the claim of lien expires and is unenforceable.”

Civil Code section 8480 authorizes the filing of a petition for an order to release a mechanics lien. That code section states in pertinent part that,

““(a) The owner of property or the owner of any interest in property subject to a claim of lien may petition the court for an order to release the property from the claim of lien if the claimant has not commenced an action to enforce the lien within the time provided in Section 8460.”

The owner of the property must give the lien claimant notice demanding that they execute and record a release of the mechanics lien at least 10 days before any petition is filed. See Civil Code section 8482.

The notice demanding the release of the mechanics lien is governed by the provisions of Civil Code section 8102.

Note that section 8102 states that so long as the notice given is sufficient to substantially inform the person given notice of the information required by this section and other information required in the notice the notice is not invalid.

Civil Code sections 8106 and 8110 specify how notice to the lien claimant must be given.

Civil Code section 8106 states that, “Except as otherwise provided by statute, notice under this part shall be given by any of the following means:

(a) Personal delivery.

(b) Mail in the manner provided in Section 8110.

(c) Leaving the notice and mailing a copy in the manner provided in Section 415.20 of the Code of Civil Procedure for service of summons and complaint in a civil action.

Civil Code section 8110 states that, “Except as otherwise provided by this part, notice by mail under this part shall be given by registered or certified mail, express mail, or overnight delivery by an express service carrier.”

Civil Code section 8484 specifies what must be included in the petition for an order releasing a mechanics lien. It should be noted that in addition to including other required information such as the date that the claim of lien was recorded and the book and page number where the claim was recorded, the petition must be verified.

Civil Code section 8484 states that,

“A petition for a release order shall be verified and shall allege all of the following:

(a) The date of recordation of the claim of lien. A certified copy of the claim of lien shall be attached to the petition.

(b) The county in which the claim of lien is recorded.

(c) The book and page or series number of the place in the official records where the claim of lien is recorded.

(d) The legal description of the property subject to the claim of lien.

(e) Whether an extension of credit has been granted under Section 8460, if so to what date, and that the time for commencement of an action to enforce the lien has expired.

(f) That the owner has given the claimant notice under Section 8482 demanding that the claimant execute and record a release of the lien and that the claimant is unable or unwilling to do so or cannot with reasonable diligence be found.

(g) Whether an action to enforce the lien is pending.

(h) Whether the owner of the property or interest in the property has filed for relief in bankruptcy or there is another restraint that prevents the claimant from commencing an action to enforce the lien.”

The hearing date on the petition must be set no more than 30 days from the filing of the petition by the clerk unless the Court orders otherwise. Notice of the hearing must be served on the lien claimant at least 15 days before the hearing. See Civil Code section 8486.

At the hearing the petitioner has the burden of showing that they have complied with the notice and service requirements. The lien claimant has the burden of proof as to the validity of the lien. Note that the prevailing party is entitled to reasonable attorney’s fees. See Civil Code section 8488.

Attorneys or parties who would like to view or download a sample demand letter for release of mechanics lien in California created by the author can see below.

Attorneys or parties in California who would like to view a portion of a sample 9 page petition for release of mechanics lien containing brief instructions with citations to the Civil Code regarding the strict requirements for service of the notice, a verification, notice of hearing, and proposed order sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

To view over 300 sample legal documents for sale by the author of this blog post visit the View over 300 sample legal documents for sale

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You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

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