Re: lien

Without reading the agreement no one can tell you definitively if you have a right to the deposit.

In order to file a lien in this circumstance, you need to file a lawsuit and ask for a lis pendens.

Any real estate attorney who does litigation can do this type of litigation for you.

Good Luck.

Re: lien

First of all, I am very sorry to hear about all you have gone through!

Your P&S probably has a "time is of the essence" clause, which provides that if the seller/builder cannot deliver the property in the condition required by the P&S by the date certain for the closing, the builder gets an additional 30 days to get the work done. I assume that this 30-day period has likewise expired. Under these circumstances you should get your deposit back, though I have certainly seen builders attempt to manufacture excuses and shift them onto the shoulders of buyers.

The deposit constitutes your remedy. You could only get a lien against the property if you could convince a judge that you were likely to recover an amount in excess of the deposit, such as multiple damages for "unfair and deceptive acts and practices" under what we call Chapter 93A. However, in 22 years of practice I have never seen any judge allow a lien where the deposit is being held by, say, the builder's broker or attorney.

I assume that there is a substantial amount of money at stake here; perhaps high five or low six figures. In the first instance I think you need to meet with an attorney and assess your options. Those options include litigation (which would include a claim for multiple damages but which would also be the most expensive option), an attempt at a reasoned discussion or mediation with the builder, or arbitration of the matter (which would result in an infinitely faster process and outcome than litigation but which would be binding on the parties and not subject to appeal). Please see my website (www.lawfang.com) and contact me if you wish to discuss the matter in detail.

Re: lien

The first previous answer your more detailed recitation of your problem appears to be on the mark. In your situation, you probably need creative counsel experienced in negotiating a sensible, (relatively) inexpensive solution to your situation. (I also agree, however, that any definitive legal analysis depends on the terms of the P&S at issue in your case.)

Assuming you do have legal rights for the return of the deposit, you should (unfortunately) probably expect the builder/ownner to resist the easy refund of your deposit. This is where creative counsel, accustomed to fashioning case-specific solutions through negotiation with the opposing parties, can hopefully negotiate a quick, fair, sensible solution for you. But I would NOT expect the easy return of your deposit without involvement of counsel on your behalf.

Also, in the worst case scenario, counsel should be ready and able to file suit on your behalf to create the leverage necessary to accomplish your goals. The existence of the suit and your claims can be leveraged to help bring about an effective solution.

I also agree your claim for an attachment to title to the property is a long shot at best, except the old procedure for lis pendens, which is not super-effective. However, counsel can likely accomplish the objectives you seek without the need for any attachment.

Feel free to contact this office directly for a more specific initial office consultation, without obligation on your end.