I performed work on a commercial property in New Jersey, but did not get payment. I tried to work with the property owner but was forced to lien the project the day before my rights expired. The property owner now says they will mail my check but I must release my lien first. If I do release the lien, and I don't receive the check, can I lien the project again? Or are my rights gone?
'Interesting scenario and question. I would suggest that the aswer is, "yes and no." Would you lose your right to re-lien the project if you tried to re-file after the 90-day deadline because the property owner said they would pay if you released the lien but then didn't pay? - Yes. Are your rights gone? - well, that's a more complex question. Your lien rights? - Yes. But ... you would then appear be the victim of fraud by the property owner. In other words, the owner knowingly represented to you what they would do if you released the lien and did so with the intent that you rely upon that representation. You would have reasonably and justifiably relied ... and suffered damages as a result. So, you'd have a fraud claim and a negligent misrepresentation claim and a breach of an oral agreeement claim and perhaps more. So, you'd still have those rights.
But? - Who wants to have rights to sue, which is quite the hassle? You want your lien rights. The upshot is, it would be best to tell the owner no and that if they intend to pay, they can pay, and you see no reason to release your lien and lose your lien rights on their promise to pay. Finally, you could enter a formal, written agreement with them and that would include them providing monies due to an attorney's escrow account with the agreement that once you release the lien, the monies can be released to you. But - That's going to require preparation of an agreement by an attorney.
Those are my thoughts and you're welcome to give me a call if you wish to discuss.
Terence W. Camp, Esq.
Marin Goodman LLP in Harrison, NY and practicing out of Berkeley Heights, NJ
Direct line: (914)412-7261 and tcamp@maringoodman.com
One option is to have the payment deposited to an attorney trust account if either of you have an attorney that would agree to do that. When an Owner makes payment, the lien has been “satisfied” and can then be discharged. But before the payment is made, the lien is not considered satisfied.