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Ask the County Law Librarian: How Do I Get a Lien on Mom’s House?

Ask the County Law Librarian: How Do I Get a Lien on Mom's House?

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Q. I had been living in the family home with my mother up until she died a few months back. I am a good handyman, and I have spent a lot of time and money fixing the house up. I’ve also paid the property taxes a couple of years when Mom couldn’t afford to. Now that she’s passed, my brother and I have inherited the house 50/50. He wants to sell the house and he promised to repay me the property taxes and some of the money I’ve spent fixing the place up out of the proceeds. I want to put a lien on the house to make sure I get paid when the house sells. How do I do that? I heard I could use a “mechanic’s lien,” but I didn’t repair any vehicles, just the home. – John

A. I’m sorry for your loss, John. It does seem fair that you should get back a portion of what you’ve spent on the house, since your brother will benefit from the repairs you have done and the fact that the taxes were kept up to date.

Unfortunately, it doesn’t sound like you qualify to put a lien on the house.

A “mechanic’s lien” does sound like it would be for car repairs, but it is in fact used on construction projects. However, there are very strict requirements for using a mechanic’s lien. You must have provided the owner (your mother in this case) with a Notice of Mechanic’s Lien in a particular format (Cal. Civil Code (CC) § 1416), and you must have recorded (filed) the lien with the Recorder’s Office within 90 days of finishing the work (CC § 8412). In addition, the lien becomes invalid if you do not foreclose (file a lawsuit) the lien within 90 days of recording the lien (CC § 8460). (And, if you are not a licensed contractor, you can record a lien, but you can’t foreclose on it if it’s over $500. Cal. Bus & Prof. Code 7031.) It doesn’t sound like your situation qualifies.

Generally, unless some special statute applies (like the mechanic’s lien statute), you cannot file a lien on property until you sue the owner and get a judgment. If your brother does sell the house and refuses to pay you, you could sue him. If you win, you could then put a lien on any real estate he owns. Hopefully it won’t come to that!

If your brother is willing let you put a lien on the property, you may be able to do so by having him sign a promissory note and deed of trust (essentially, a mortgage). You can find information about that process, as well as samples of both documents, in our guide on the Law Library’s website at Deed of Trust (Using Real Property as Security for Loan).

It can be hard to work out financial disputes when you are also dealing with the emotional effects of the loss of a family member. I hope that you and your brother are able to work this out smoothly. All the best to you and your family.

Do you have a question for the County Law Librarian? Just email [email protected]. If your question is selected your answer will appear the next column. Even if your question isn’t selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian

Ask the County Law Librarian: How Do I Get a Lien on Mom’s House? via @sacramentopress

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