I would like to refinance, and have a mechanics lien on my home from 10/2015 for 8k. The contractor was given a stop work order and botched so many things I had to hire people to repair the poor workmanship. In Michigan it is only enforceable for 1 year. Do I need to initiate legal action to get it removed or whill I be able to refi without issue?
In Michigan, a lien claimant has one (1) year from recording its lien to enforce it through a foreclosure lawsuit. A lien that is more than a year old, 5 years, in this case, cannot be enforced although it still appears in the chain of title (property records). This of the lien as "stale" or "expired."
There is a mechanism, short of a lawsuit, for removing an old lien. It requires making and submitting an affidavit to the county clerk where the property is located.
If the clerk confirms more than one year has passed without a foreclosure action, they will issue a certificate which must be recorded with the register of deeds. Recording this certificate has the effect of discharging the old lien.
This process for discharging an old lien is outlined in Section 128 of the Michigan Construction Lien Act:
Sec. 128. If any statement or claim of lien has been recorded in the office of a register of deeds, and the time within which proceedings to enforce the lien through foreclosure has elapsed without commencement of the proceedings, a person with an interest in the real property affected by the lien, or that person's agent or attorney, may make and present to the county clerk of the county in which the statement or claim of lien was recorded, an affidavit showing the time when the statement or claim of lien was recorded and the names of the parties to the statement or claim of lien. The county clerk shall examine the records of his or her office, and if it appears that proceedings to enforce the lien have not been commenced with the time provided by law, the county clerk shall execute and deliver to the owner a certificate of that fact, bearing the seal of the circuit court. The certificate may be recorded in the office of the register of deeds for the county where the statement or claim of lien was recorded, after which the statement or claim of lien shall have no effect.
Pre-Covid, the discharge process usually took a few weeks. Due to Covid-19 restrictions, the process may take longer.
Ask LevelSet if they have the affidavit described in Section 128 among their standard forms. If they don't or can't help you, contact my office for assistance.
Peter Cavanaugh
Cavanaugh & Quesada, PLC
Tel: (248) 543-8320