Our monthly review where we recognize amazing customer service and diligence from the greatest in recording, statute, and lien best practices...along with the lackluster. Take a look at who hits bullseye, and who is out of bounds.
This month we look at states that require proof of delivery when filing a mechanics lien. Sending a mechanics lien to other parties, such as the property owner, is sometimes required at the same time or before filing the mechanics lien. A few states require proof that the lien was sent out to conacts in order to even properly file the lien. This month, we examine a state with an incredibly easy proof of delivery method, that makes the process quick and painless. We will also take a look at one state that requires a very arbitrary but time consuming extra step for proving delivery. Hint: it generally involves a mandatory trip to the post office.
THE BEST: CALIFORNIA
It is always an extra step to show proof of delivery for a mechanics lien, but California makes this step easy. The Golden State wins gold this month for only requiring a simple "proof of service affidavit completed and signed by the person serving a copy of the claim of mechanics lien" that meets specific formatting requirements. This document generally suffices to prove service of the lien, and is required as a document to be sent to the recorder, along with the pre-recorded version of the lien. It should "show the date, place, and manner of service, and facts showing that the service was made." The affidavit may require tracking numbers that can be processed using tracking supplies from USPS, or be processed by an unaffiliated vendor. If you need to send multiple liens at once, or just don't happen to be by a postal office, this affidavit shouldn't hold you back for long.
THE Not-so-best: SOUTH DAKOTA
The Mount Rushmore state makes proving delivery of service not just an extra step, but an extra trip to the post office. South Dakota requires the claimant to send the lien statement to the property owner by registered or certified mail prior to recording the lien. The lien can then be sent to the register of deeds along with "the post office receipt for such mailing." That's correct - the origianl post office receipt must be included to file the lien, and in many counties the receipt must be officially stamped by a postal office employee. This extra step means more time before your lien can be filed, and using a copy of your receipt or an unstamped copy could mean a rejection of your document. With time sensitive deadlines on the line, any extra step that may seem arbitrary can be a disadvantage. When certified tracking numbers can easily be provided on an affidavit, an actual receipt from the post office seems to be an outdated practice.
IT’S NOT ALWAYS ABOUT WINNING
As Arnold H. Glasgow said, “Success is simple. Do what’s right, the right way, at the right time.” Thanks to all of the states and counties that work tirelessly to record documents the right way at the right time, and define their requirements to be fair and accessible. The construction industry wouldn't be the same without fair practices and dilligent work from state and county departments.