Back to Basics: Tennessee Lien Law PART 2

In a continuing four-part series, LT Construction Lawyer Wally Irvin discusses the Tennessee lien law.  Wally recently posted Part 1 of 4 on “Speaking the Lien Language.”  Wally continues his examination of the Tennessee lien law.

Back to Basics: Tennessee Lien Law
Post 2 of 4 (Lien on What?)

16641272499_98c0f3f6a4_zUnder Tennessee lien law, a lienor may assert a lien when it performs work or furnishes materials that improve real property.  Naturally, the next question is “to what property does the lien attach?”  Common sense indicates the lien should attach to the entirety of the owner’s property; however, Tennessee’s mechanics’ and materialmen’s lien law (the “Act”) imposes limits on the properties subject to a lien.  In this post, Tennessee Construction Lawyers look at what differentiates public and private property and the effect a property’s use has on a lienor’s ability to assert and enforce a lien.

Public Property

A crucial factor in determining when a lien may be asserted under the Tennessee lien law is whether the project is public or private.  In general, public property is not subject to a lien for public policy reasons, regardless of whether the project is a federal, state, county or municipal project.  Seee.g.Tennessee Supply Co. v. Young, 218 S.W. 225 (Tenn. 1919);Heglar v. McAdoo Contractors, Inc., 487 S.W.2d 312 (Tenn. Ct. App. 1972).  Public works are deemed exempt from statutory liens for public policy reasons; but, generally, prime contractors on these projects are required to furnish a payment bond to protect remote contractors under both Tennessee and federal law.  Tennessee Construction Lawyers will review payment bond claims in a separate series; however, there are a few points that bear mentioning.  First, the payment bond ensures that all remote contractors are paid and, theoretically, takes the place of a mechanics’ and materialmen’s lien.   Thus the payment bond provides the exclusive remedy for those who are unpaid on a public construction project.  Because the prime contractor is dealing with a governmental entity, the risk of nonpayment from the owner is not present.

[N]othing is more clear than that laborers and materialmen do not have enforceable rights against the [government] for their compensation . . . .  They cannot acquire a lien on public buildings . . . and as a substitute for that more customary protection, the various statutes were passed which require that a surety guarantee their payment.Matter of RAH Development Co., Inc., 184 B.R. 525 (W.D. Mich. 1995)(quoting United States v. Munsey Trust Co., 332 U.S. 234 (1947)).

Although the government is protected by sovereign immunity from suit by remote contractors, a governmental unit has a “moral” obligation to see that contract funds are used to pay persons whose labor or material went into the performance of the work.  United States Fidelity & Guaranty Co. v. United States, 475 F.2d 1377 (Ct. Cl. 1973).  As we will discuss in a future series, bond claims contain just as much potential for trips and pitfalls as a mechanics’ lien, despite the government’s “moral” obligation to pay.

But, even in instances where the property is not entirely public, a court may not allow a lienor to encumber the underlying real property.  For instance, a court denied enforcement of a lien against a federally subsidized low rent housing development.  V.L. Nicholson Co. v. Transcon Inv. and Fin. Ltd., Inc., 595 S.W.2d 474 (Tenn. 1980).  In Nicholson, a developer created a not-for-profit corporation that owned real property upon which it constructed a housing development.  The corporation, however, leased the property to a municipal housing authority (the “Authority”).  During construction, disputes arose out of the corporation’s failure to pay for extra work, prompting the contractor to file a lien against the property.  Upon final review, the Tennessee Supreme Court analyzed decisions from other states and found most states did not allow a lien on the property of state or local governments or of housing authorities.  The court noted the corporation’s charter characterized the corporation as an agency and instrumentality of the Authority.  Additionally, although the corporation received minimal funding in relation to the total cost of the project, the project was designated under the United States Housing Act of 1937.  In addition, the corporation was not a wholly private enterprise because it existed for the purpose of providing low rent public housing.  Finally, title to the property could vest in the Authority at its request after the corporation discharged its indebtedness.  Based on these facts, the court found the overall character of the property was public and deserved protection against liens and encumbrances.  Accordingly, it is important to determine at the contracting state whether or not the property to be improved is public or private.  If the property is public, a contractor may not assert a lien.

Private property

In contrast to public property, private property is almost always subject to a lien.  In our prior post, we defined a prime contractor to be a person that contracts with the owner for an improvement to real property.  In general, when an owner contracts for an improvement to its property, the contractor (lienor) may assert a lien for any unpaid balance.  But, the fee owner is not the only person entitled to contract for improvements.  Tennessee lien law defines an owner to include anyone who has a possessory or ownership interest in real property.  Thus, an owner may include the fee owner and a lessee, among others.

Lessees

A lessee is generally entitled to improve the leasehold estate.  When a contractor furnishes labor or materials in furtherance of an improvement to a leasehold estate, it is entitled to assert a lien for any unpaid contract sums.  The lien typically only attaches to the lessee’s interest, the leasehold estate, and does not affect the title of the record owner.  However, in certain situations, the owner may require the lessee to make improvements to the property.  In such a case, the lien also attaches to the owner’s interest in the property.  If the lease does not require improvements, but only permits the lessee to make improvements or does not specifically address the issue, the lien may not attach to the owner’s interest.

Notwithstanding the foregoing, a lienor may not encumber a fee estate where the lienor contracts with a lessee unless the lessee is the owner’s agent.  To determine if a lessee is the fee owner’s agent, courts looks to whether:

  1. the fee owner had the right to control the conduct of the lessee with respect to the improvement;
  2. the lease required the lessee to construct a specific improvement on the fee owner’s property;
  3. the cost of the improvement is borne by the fee owner through corresponding offsets in the amount of rent paid by the lessee;
  4.  the fee owner maintains control over the improvement; and
  5. the improvement becomes the property of the fee owner at the end of the lease.

Tenn. Code Ann. §66-11-102(d).  When a contractor performs work pursuant to a contract with a tenant or lessee, it is important to analyze these factors at the contracting stage to ensure adequate safeguards are in place to avoid nonpayment by the owner and to protect the contractor’s lien rights.

Residential versus non-residential real property

A lienor may assert a lien against non-residential real property; but, in some instances, residential real property may also be subject to a lien.  Thus, a lienor must understand the difference between residential and non-residential property.

On most construction projects, a lienor knows whether the property is residential or non-residential property.  However, the issue is more complex if the project involves multiple dwelling units or the owner does not intend to make the structure his or her principal place of residence.  Property classified as residential real property for zoning purposes is not, per se, residential real property for mechanics’ and materialmen’s lien purposes.  To distinguish between residential and non-residential real property, the Act sets forth elaborate definitions of “residential real property.”

“Residential real property” is defined in two ways.  Determining which definition controls depends upon: 1) whether the improvement is intended for use as the owner’s primary residence; and 2) the owner’s relationship to other contracting parties.

Where the improvement is intended for use as the owner’s primary residence, residential real property is defined as:

“. . . a building consisting of one (1) dwelling unit in which the owner of the real property intends to reside or resides as the owner’s principal place of residence, including improvements to or on the parcel of property where the residential building is located, and also means a building consisting of two (2), three (3) or four (4) dwelling units where the owner of the real property intends to reside or resides in one (1) of the units as the owner’s principal place of residence, including improvements to or on the parcel of property where the residential building is located.” Tenn. Code Ann. §66-11-146(a)(1).

Most residential construction projects fall within this definition of residential real property.  The statutory definition encompasses a house, duplex or small apartment complex (with no more than four units), so long as the owner resides or intends to reside in one of the units.  Accordingly, large apartment complexes exceed the scope of this definition and fall within the lien provisions that govern non-residential real property.  Similarly, if the improvement meets the description set forth above, but the owner does not intend to primarily reside on the property, the property is non-residential property.  C&C Aluminum Builders Supply v. Rynd, 4 S.W.3d 191 (Tenn. Ct. App. 1999) (where record owner did not intend to use property as residence and subsequently conveyed property to another person, the property was not residential real property and not immune from materialmen’s lien).

However, Tennessee lien law provides an additional definition of residential real property that applies where the owner and the general contractor are the same person or entity, or where a single person or entity controls both the owner and the general contractor.  In these situations, the definition of residential real property changes; and is expanded to include:

“. . . improvements to or on a parcel of property upon which a building is constructed or is to be constructed consisting of one (1) dwelling unit intended as the principal place of residence of a person or family.”

Tenn. Code Ann. §66-11-146.  Although the Act defines residential real property in two ways, application of the two definitions generally produces the same result; only prime contractors may assert a lien on residential real property.  Accordingly, where the owner intends for the improvement or a unit in the improvement to serve as the owner’s primary residence, a lien arises only in favor of a prime contractor.  Where the owner and the prime contractor are the same person, or the same person controls both entities, a lien arises only in favor of remote contractors in privity with the prime contractor.  The language of section (b) is misleading, but in application, it is similar to section (a): only those lienors who have a contract with the owner or the owner/prime contractor may claim a lien.

Privity of contract with the owner is generally a prerequisite for a party to assert a lien on residential real property.  Nevertheless, suppliers repeatedly argue they are entitled to assert a lien despite a lack of privity.  Suppliers frequently argue the prime contractor is the owner’s agent.  For example, in W.T. Hardison & Co. v. Harding, 251 S.W.2d 829 (Tenn. Ct. App. 1952), a supplier attempted to enforce a lien on residential real property, arguing it sold material directly to the owner through the owner’s agent, the contractor.  The supplier, however, billed the materials directly to the contractor.  The court found a supplier must allege and prove it furnished the materials under a contract with the owner or his agent to claim a lien on residential real property.  Because the supplier could not prove this essential fact, the Harding court held the supplier could not claim a lien.

CONCLUSION

Tennessee lien law only permits a contractor to assert a lien against private property.  When a project is defined as residential property, Tennessee lien law further restricts the class of lienors to the first tier, requiring they have a contract with the owner.  In our next post, Tennessee Construction Lawyers will review the extent to which a lien encumbers an owner’s property and the notices required to assert the lien.  If you have any questions regarding the mechanics of Tennessee lien law, please feel free to contact us.

Photo: GotCredit

Earn CLE and PDH with Tennessee Construction Lawyers

It’s that time of year.  Thanksgiving is nearly upon us and Christmas is just around the corner, which means one thing: it’s time to make sure you have earned enough CLE and PDH before it is too late.  Take a break from the holiday stress and earn your remaining CLE or PDH with us.  Join Tennessee Construction Lawyers Steve BartonJimmy Duckworth, Preston HawkinsJ. Wallace Irvin and Jared Garceau at one of two live seminars produced by National Business Institute entitled: “Construction Defect Disputes & Litigation: Using Coverage, Case Law and Indemnification to Shift Liability.”  This presentation is geared to architects, engineers and personal injury lawyers, but is open to anyone interested in learning more about shifting risk and liability in the construction industry.

Do you understand the definition of an “occurrence”?  Do you know which “occurrences” cause property damage?  Does “faulty workmanship” qualify as an accident?  Courts across the country are split on the answers to these questions and many more.  In this course, we will dig deep into the heart of the issue of construction defect cases and define policy language with the most current case law.  The attorneys from Lewis Thomason’s construction practice group will equip you with techniques for allocating continuous coverage triggers and using CGL exclusions and exceptions as ammunition.  You will also learn how to use indemnification language to strategically shift liability to the contractor, subcontractor and/or owner. Register today!

On December 7, Steven Barton, Jimmy Duckworth and J. Wallace Irvin present in Memphis at the Holiday Inn Hotel & Suites – Wolfchase, beginning at 9:00 a.m. CST.  On December 8, J. Wallace Irvin, Preston Hawkins and Jared Garceau travel to Johnson City and will speak at the Carnegie Hotel.

For more information or to register, please click on Memphis (December 7) or Johnson City (December 8)

Agenda / Content Covered

I. The Interplay of Multiple Policies: Detangling Coverage and Allocating Liability
9:00 – 9:30, Written by All Faculty. Presented by Stephen C. Barton and Wallace Irvin in Memphis and Preston Hawkins and Wallace Irvin in Johnson City.

  • Locating Historical Insurance and Using it Strategically
  • Commercial General Liability (CGL) and Wrap Policies
  • Builder’s Risk
  • Umbrella and Excess Liability Coverage
  • Professional Liability, E&O and Design Malpractice
  • Performance Bond Coverage

II. Defining “Occurrence,” “Property Damage,” “Accident” and “Faulty Workmanship” with Recent Case Law
9:30 – 10:15, Written by All Faculty. Presented by Stephen C. Barton and Wallace Irvin in Memphis and Preston Hawkins and Wallace Irvin in Johnson City.

  • What is the Definition of a “Defect” Under the Act?
  • Is Violation of the IRC/UBC a Per Se “Defect”? Can the Builder/Vendor Shift Liability on the Subs?
  • When is the Contractor (or Insured) “Legally Obligated to Pay?”
  • Occurrence vs. Claims Made Policies
  • Definition of “Occurrence”
  • Definition of “Accident”
  • What “Occurrences” Cause “Property Damage”?
  • Property Damage That Triggers Duty to Defend
  • Does “Occurrence” Apply to “Faulty Workmanship”?
  • Does “Faulty Workmanship” = Accident?
  • State Statute Update, Current Trends and Recent Developments

III. Trigger Allocation and Allegations; When did the Trigger Occur?
10:30 – 11:15, Written by All Faculty. Presented by Stephen C. Barton and Wallace Irvin in Memphis and Preston Hawkins and Wallace Irvin in Johnson City.

  • Finding the Source of Construction Loss/Damage
  • Poorly Drafted Construction Records
  • What if the Maintenance Records are Nonexistent?
  • Using Experts Effectively
  • Continuous Coverage Triggers
  • Exposure? Injury-in-Fact? Manifestation?
  • Pro Rata Time on the Risk
  • Recent Case Law, State Statutes and Current Trends

IV. EXCLUSIONS: Court Interpretation and Litigation Strategy
11:15 – 12:15, Written by All Faculty. Presented by Stephen C. Barton and Wallace Irvin in Memphis and Preston Hawkins and Wallace Irvin in Johnson City.

  • “Your Work,” “Your Property” and/or “Your Product”
  • The Subcontractor Exception
  • Contractual Liability
  • Progress Loss, Residential and/or EIFS
  • Pollution Exclusions
  • Impaired Property
  • CGL Exceptions
  • Recent Case Law, State Statutes and Current Trends

V. Detangling Indemnification and Shifting Liability
1:15 – 2:15, Written by All Faculty. Presented by Stephen C. Barton and Wallace Irvin in Memphis and Preston Hawkins and Wallace Irvin in Johnson City.

  • Who’s Responsible: Architect? Engineer? Designer?
  • Proving Joint and Several Liability and Extent of Responsible Party
  • Using Indemnification and Hold Harmless Agreements/Provisions to Shift Liability
  • What Language Works and What Doesn’t?
  • How to Enforce
  • Defenses
  • Additional Insured Provisions
  • Recent Case Law, State Statutes and Current Trends

VI. How to Determine the Priority of Coverage: Vertical and Horizontal Exhaustion
2:15 – 3:15, Written by All Faculty. Presented by Stephen C. Barton and Wallace Irvin in Memphis and Preston Hawkins and Wallace Irvin in Johnson City.

VII. Litigating the Construction Defect Claim: Coverage vs. Liability
3:30 – 4:30, Written by All Faculty. Presented by Stephen C. Barton and Wallace Irvin in Memphis and Preston Hawkins and Wallace Irvin in Johnson City.

  • Differentiating Between Tort and Coverage Issues; Bifurcating Coverage from Liability
  • Deposition Techniques: Insurance Actuary, Architect, Contractor
  • Economic and Non-Economic Damages
  • Filing a Dispositive Motion
  • Action for Declaratory Relief
  • Recent Case Law, State Statutes and Current Trends

Back to Basics: Tennessee Lien Law

Back to Basics: Tennessee Lien Law
Post 1 of 4 (Speaking the Lien Language)

16641272499_98c0f3f6a4_zArguably, the most important aspect of any construction project is not the construction itself but ensuring the contractor receives payment. If a contractor does not receive payment, the contractor may assert a mechanics’ and materialmen’s lien against the project and sell the underlying property to satisfy the debt. However, creating and enforcing a valid lien requires more than simply recording a lien in the local register of deeds office. Further, even if a contractor possesses a valid lien, the contractor must take affirmative steps to preserve and enforce the lien. The Tennessee lien law consists of more than 40 complex statutes. Accordingly, it is important to have at least a working understanding of how to perfect, preserve and enforce a valid lien claim.

Over the course of the next several weeks, Tennessee Construction Lawyers will review tips for avoiding traps of Tennessee’s lien laws from the contractor’s perspective and review the basics to allow a contractor to perfect and enforce a lien in Tennessee. In the coming weeks, Tennessee Construction Lawyers will also analyze Tennessee lien law from the owner’s viewpoint, reviewing applicable defenses and suggestions for discharging the lien.

What is a lien?

A lien is an encumbrance on the title to real property, converting the property into collateral to secure a debt owed to any person who improves the land. Shipley v. Metropolitan Life Ins. Co., 158 S.W.2d 739, 741 (Tenn. Ct. App. 1941). The Act provides what gives rise to a lien, who is entitled to assert a lien and what property is subject to the lien. The Act also sets forth the procedure for acquiring, perfecting and enforcing a lien.

A lien is perhaps the strongest weapon available to contractors in demanding payment. Because an action to enforce a mechanics’ and materialmen’s lien is an in rem action, a judgment validating a lien acts as a judgment against the land. Thus, a contractor may sell the underlying property to satisfy the judgment. Because the lien encumbers the underlying property, the owner must take steps to remove the encumbrance, or post a bond to release the lien, prior to obtaining financing or transferring the property to a subsequent purchaser.

Talking the talk

Before diving into the Tennessee lien law, it is important to understand the meaning of important terms. Although the definitions for some terms track their common meaning, the Tennessee lien law includes additional definitions for each term that may affect, to some extent, the validity or enforceability of a lien.

A lien encumbers real property upon which a person makes an improvement, but only to the extent the person who improved the property is not paid. Thus, the lien in Tennessee can never exceed the contract price. Tenn. Code Ann. §66-11-120. The Contract Price is the amount the contracting parties agree a person will be paid for performing work or furnishing material in furtherance of an improvement to the property, increased or diminished by the price of extras or breach of contract, including defects in workmanship or materials. Tenn. Code Ann. §66-11-101(2). If the contracting parties do not agree to a price, the contract price is equal to the reasonable value of the work or materials. Id.

Tennessee lien law provides a lien in favor of any person who improves real property. Tenn. Code Ann. §66-11-102(a). A Lienor, therefore, is any person who has the right to claim a lien. Tenn. Code Ann. §66-11-101(7). The term lienor encompasses general contractors, subcontractors and suppliers, regardless of tier. Nevertheless, Tennessee lien law distinguishes between those contractors who have a contract with the owner of the underlying property and those who have a contract with another contractor. A Prime Contractor is a person who is in direct privity of contract with an owner, or the owner’s agent, of the improvement. Tenn. Code Ann. §66-11-101(12). In contrast, a Remote Contractor is a person who enters into a contract with a person other than an owner or the owner’s agent. Tenn. Code Ann. §66-11-101(14). The Act defines the Owner is defined to include: 1) the owner in fee, or of a less estate, of the underlying real property; 2) a lessee for a term of years; 3) a vendee in possession under a contract for the purchase of real property; and 4) any person who has any right, title or interest, legal or equitable, in real property, that may be sold under process. Tenn. Code Ann. §66-11-101(8).

A Contract is any agreement for improving real property, written or unwritten, express or implied. Tenn. Code Ann. §66-11-101(8). The contract also includes any extras and changes authorized by the owner but not included in a prior contract. Tenn. Code Ann. §66-11-101(3). Most importantly, a lienor may obtain a lien regardless of whether the lienor’s contract is oral or written, formal or informal.

To obtain a lien, a lienor must either perform work or furnish materials in furtherance of the improvement. An Improvement is broadly defined to include the result of any action or any activity in furtherance of:

1) constructing, erecting, altering, repairing, demolishing, removing, or furnishing materials or labor for any building, structure, appurtenance to the building or structure, fixture, bridge, driveway, private roadway, sidewalk, walkway, wharf, sewer, utility, watering system, or other similar enhancement, or any part thereof, on, connected with, or beneath the surface;

2) the drilling and finishing of a well, other than a well for gas or oil;

3) the furnishing of any work and labor relating to the placement of tile for the drainage of any lot or land;

4) the excavation, cleanup, or removal of hazardous and nonhazardous material or waste from real property;

5) the enhancement or embellishment of real property by seeding, sodding, or the planting on real property of any shrubs, trees, plants, vines, small fruits, flowers, nursery stock, or vegetation or decorative materials of any kind;

6) the taking down, cleanup, or removal of any existing shrubs, trees, plants, vines, small fruits, flowers, nursery stock, or vegetation or decorative materials of any kind then existing; excavating, grading or filling to establish a grade;

7) the work of land surveying, as defined in § 62-18-102;

8) the performance of architectural or engineering work, as defined in title 62, chapter 2, with respect to an improvement actually made to the real estate, except for one or two-family detached unit homes.

Tenn. Code Ann. §66-11-101(5); Tenn. Code Ann. §66-11-102(c)(3).

Most of the work that constitutes an improvement is self-explanatory; however, the phrase “Furnish Materials” deserves some discussion. A lienor furnishes material by supplying materials that are intended to be, and are, incorporated in the improvement. Tenn. Code Ann. §66-11-101(4)(a)(i). However, a lienor may furnish materials even if the materials are not used into the improvement. If a lienor specially fabricates materials for use in the improvement and the materials are not readily resalable, the lienor furnishes materials regardless of whether the lienor delivers the materials to the project site. Tenn. Code Ann. 66-11-101(4)(a)(iii). Nevertheless, regardless of whether the materials are specially manufactured, the delivery of materials to the site of the improvement is prima facie evidence of their incorporation in the improvement. Tenn. Code Ann. §66-11-101(4)(b).

In the next 3 posts, Tennessee Construction Lawyers will review more of the Tennessee lien law and discuss what property is subject to a lien, what is required to preserve and assert a lien and the steps necessary to enforce the lien to ultimately receive payment.

Photo: GotCredit

New Pay Transparency Rule for Federal Contractors

5537915034_c8ec2c3f47_zDoes your company have a policy that prevents your employees from discussing or disclosing their own pay or the pay of their co-workers? If you are a federal contractor or subcontractor, you better be aware of the new pay transparency rule that takes effect on January 11, 2016.

This new rule comes from the Office of Federal Contract Compliance Programs (OFCCP) of the U.S. Department of Labor.

Prohibiting pay secrecy policies and promoting pay transparency helps address the persistent pay gap for women — which remains at 23 cents for every dollar earned by men — and provides employers access to a diverse pool of qualified talent. That is why the U.S. Department of Labor today issued a commonsense rule that finally lifts the veil on pay for employees of federal contractors and subcontractors. – Michael Trupo, US Dept. of Labor

Under this new rule, federal contractors and subcontractors are prohibited from firing or discriminating against employees for “discussing, disclosing, or inquiring about their own pay or that or their co-workers.” This rule also applies to discussions about pay with job applicants.

Job applicants and employees of federal contractors and subcontractors who believe they have been fired or subjected to discrimination for discussing, disclosing or inquiring about their own pay or the pay of others will be able to file a discrimination complaint with the OFCCP.

Pay secrecy practices will no longer facilitate the pay discrimination that is too often perpetrated against women and people of color in the workplace. Indeed, forward thinking companies that have embraced greater transparency find that it benefits them and their workforce by helping them attract and retain talented workers. And research suggests these approaches have a substantially positive impact on society, workers, the workforce, and the economy as a whole. – OFCCP Director Patricia Shiu

What Steps Should You Take?

 This new rule requires federal contractors to incorporate a nondiscrimination provision / pay transparency provision into their existing employee manuals or handbooks and provide a copy of the nondiscrimination / pay transparency provisions to employees and job applicants.

Make sure to update your employee manuals or handbooks with the information required by this new pay transparency / nondiscrimination rule and provide a copy to your employees. You should also update your job application materials. Please feel free to contact us for suggestions on how to incorporate these required updates into your manuals, handbooks and job application materials.

Employer Defenses

The new pay transparency rule provides employers with two defenses to allegations of discrimination:

  1. Enforcement of another workplace rule that does not prohibit the discussion of pay information; and
  2. An essential job functions defense

You can learn more about the new pay transparency rule here.

Photo: opensource.com