You Don’t Have to Be a Mechanic to File a Mechanic’s Lien: Understanding What Types of Services Are Lienable in Connecticut
A mechanic's lien is an extremely effective tool for getting paid on privately owned construction projects. However, not everyone who provides services in connection with such projects is entitled to file a lien. Connecticut courts are routinely asked to decide whether certain types of services are lienable, including landscaping work, snow and debris removal, the provision of rental equipment, and work that is not ultimately incorporated into the liened property. In addition, liens filed by certain professionals are frequently contested in court, including liens filed by engineers, architects, surveyors, attorneys, real estate developers and insurance agents. This article discusses the legal standard for determining whether services are lienable in Connecticut and provides specific examples of both lienable and non-lienable work.
The starting place for determining whether particular services are lienable is Connecticut General Statute §49-33.
Lien rights are governed by statute. Unfortunately, the statute that addresses the types of services that give rise to a mechanic's lien is not very specific. Conn. Gen. Stat. §49-33(a) defines the persons entitled to file a mechanic's lien as those who have furnished "materials" or rendered "services" in connection with "the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land. …" So what types of services are included in this statutory definition, and what sort of service-providers can file liens?
To answer this question, it is helpful to look at an earlier version of the statute. Prior to 1974, Conn. Gen. Stat. §49-33(a) required, as a condition of lienability, that the work done be incorporated in or utilized in the building to be constructed, raised, removed or repaired. This meant that many types of services were not lienable, including, for example:
- the installation of fixtures that did not become part of the property;
- electrical work that was not permanently attached to the property;
- the removal of pipe from one building that was not incorporated into the building that was its replacement; and
- the furnishing of materials or equipment that was not shown to have gone into the construction or repair of a building.
In 1974, the legislature extended the reach of a mechanic's lien to encompass claims for materials furnished or services rendered "in the improvement of any lot or in the site development or subdivision of any plot of land. …" A key purpose of the amendment was to eliminate the requirement that the work be incorporated or utilized in a building and to extend the coverage of §49-33 to two distinct types of services: (1) services rendered in the improvement of any lot; and (2) services rendered in the site development or subdivision of any plot of land.
While the 1974 amendment to Conn. Gen. Stat. §49-33(a) expanded the types of services that may give rise to a mechanic's lien, the statute still does not provide much guidance regarding the specific types of services that are lienable. Connecticut courts have stepped in to provide more detail.
The next step in evaluating whether work is lienable: the physical enhancement test.
In order to provide more clarity regarding the types of services that are lienable, Connecticut courts have adopted the "physical enhancement test." Under this test, Conn. Gen. Stat. §49-33(a) extends to services and materials that have enhanced the property in some physical manner, laid the groundwork for physical enhancement of the property, or played an essential part in the scheme of physical improvement.
Per the physical enhancement test, services performed by attorneys and insurance agents, which services are not directly associated with the physical construction or improvement of land, are not lienable. Conversely, services performed by engineers, surveyors, and architects are typically lienable because such services are associated with the physical construction or improvement of land.
Specific examples of services that are not lienable in Connecticut.
Connecticut courts have rejected mechanic's liens based on the following types of services:
- a supplier who delivered construction equipment to a property, but who could not prove that the equipment was actually used to enhance the property;
- an attorney who provided services in connection with the rezoning of land;
- a real estate developer who provided services in connection with the subdivision of a property;
- an insurance agent who attempted to collect unpaid premiums from an insured subcontractor;
- a professional surveyor who assisted with an appeal of a boundary line dispute;
- cleaning services and hauling away of trash;
- mowing and watering a lawn; and
- cutting and watering shrubs.
Specific examples of services that are lienable in Connecticut.
Connecticut courts have allowed mechanic's liens to stand based on the following types of services:
- surveying and engineering services concerning site development and the subdivision of a plot of land;
- an architect's plans and drawings used to secure necessary permits from a town to enable such improvement efforts to occur lawfully;
- repairing a site for construction and roads;
- the services of an architect and engineer in preparing plans for the development of a property, even if no actual construction occurred on the parcel as a result of the plans if the plans were used in applications for zoning or subdivision approvals or other permits; and
- the provision of rental equipment that is actually used to improve property.
A mechanic's lien is a powerful collection tool that is available to anyone who has furnished materials or rendered services that have enhanced a property in some physical manner, laid the groundwork for physical enhancement of the property, or played an essential part in the scheme of physical improvement.
Reprinted with permission.
Paul R. Fitzgerald, Esq., of Michelson, Kane, Royster & Barger PC in Hartford, Connecticut, practices in the areas of construction and surety law, where he handles a broad range of construction-related matters on behalf of subcontractors, contractors, public and private owners and sureties.