On January 5, 2011 Governor Deval
Patrick approved an amendment to the Massachusetts Mechanic’s Lien Statute
(M.G.L.c. 254 et seq.) by adding a section providing design professionals with
lien rights for professional services provided on private construction
projects. The new law goes into effect on July 1, 2011.
The statute defines "design
professional" as:
"An architect, landscape architect,
professional engineer, licensed site professional or land surveyor who is
licensed or registered as such in the commonwealth, and any corporation,
partnership, limited liability company, or other legal entity that is authorized
under the laws of the commonwealth to practice or hold itself out as practicing
any of the foregoing professions."
and "professional services"
as:
"Services that are customarily and
legally performed by or under the supervision or responsible control of design
professionals in the course of their professional practice, including without
limitation, programming, planning, surveying, site investigation, analysis,
assessment, design, preparation of drawings and specifications and construction
administration services."
M.G.L.c. 254, §2C gives a design
professional entering into a written contract (relating to the
proposed or actual erection, alteration, repair or removal of a building or
improvement to real property) with the owner of any interest in real property or
with any person acting for, or on behalf of (i.e. a lessee), or with the consent
of, such owner, a lien to secure the payment of the amounts due or to become due
under the contract.In order to enforce the lien, the design professional must
file a Notice of Contract not later than the earlier of: 90 days
after the design professional last performed professional services, or 60 days
after the filing and recording of a Notice of Substantial Completion.Likewise,
subcontractors to a design professional who provide professional services are
also accorded lien rights pursuant to M.G.L.c. 254, §2D. Click the link below for samples of the statutorily prescribed
Notice of Contract forms.
Once a Notice of Contract is
recorded, the design professional must record a Sworn Statement of Account (a
document which provides a just and true account of amounts owed) no later
than 120 days after the date that the design professional last performed
professional services or within 90 days of the filing and recording of a Notice
of Substantial Completion – whichever date is earlier.
Both the Notice of Contract and
Statement of Account must be recorded in the registry of deeds or in the
registry district of the land court in the county in which the construction
project is located. Thereafter, within 90 days of recording its Statement of
Account, the design professional must file a Verified Complaint in the District
or Superior Court in the county in which the project is located to "perfect" its
lien. Thereafter he/she must record a certified copy of the Verified Complaint
within 30 days of commencing the lawsuit in the same manner and registry where
it recorded the other lien documents.
If you
would like more information about the mechanic’s lien, or have questions about
any construction law issue, please contact Hugh J. Gorman, III, the
author of this alert. Hugh is chair of Prince Lobel’s Construction Law Practice
Group. He can be reached at 617 456
8093 or hgorman@princelobel.com.