Court Permits Late Extension of Mechanic’s Lien

A mechanic’s lien on residential property lasts for one year from the date of recording.  In order to extend the lien for an additional year, a Court order is required, or the lien must be foreclosed upon and a notice of pendency filed prior to expiration of the lien.

Because a residential mechanic’s lien requires a Court order to extend, an application must be made to the Court but the application does not have to be on notice.  Some appellate courts have held that the Court does have the power, in certain instances, to extend a mechanic’s lien “nunc pro tunc.”  Basically, “nunc pro tunc” means to extend the lien as if the application for an extension had been made on time.  In Matter of Shilian v. All Sons Elec. Corp. the Court was faced with an application to discharge a lien that was extended through the filing of an extension of lien but without Court permission.  The lienor cross-moved to deem the lien extended nunc pro tunc.  Interestingly, the lien had been extended through the filing of an extension and the payment of the appropriate fee.  The lienor claimed that the service it used to file the lien never told it that a court order was required to extend the lien and that it only learned of this fact when it was served with the petition to cancel the lien.

The Court found that under these circumstances the lienor had established a justifiable reason for not obtaining a court order in a timely fashion and also noted that there was no prejudice to the property owner by extending the lien and that extensions of liens are “routinely granted.”

While this lienor was successful in his nunc pro tunc application, you probably don’t want to rely on this case to justify your own late filing.  Its rarely a good idea to be the test case.

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