Legal Question in Real Estate Law in California

can non hoa's file a lien without going to small claims court?


Asked on 3/02/10, 4:31 pm

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

I don't think Small Claims Court is where you go to "file a lien" whether you represent an HOA or not.

It is common for people to confuse the processes that give rise to liens with processes by which existing liens are given public notice and then enforced. First, liens fall into two major categories, voluntary and involuntary. A voluntary lien is one that the debtor causes to arise by giving a mortgage, deed of trust, or pledging collateral on a security agreement, etc. Involuntary liens arise from things like having a judgment recorded against you (which may be a Small Claims judgment), failing to pay your taxes, leaving your car for repairs, having a contractor work on your house, and so forth. Voluntary liens are "perfected" by filing UCC-1 forms with the Secretary of State (when the collateral given is other than real estate) or by recording the instrument creating the lien with the County Recorder where the collateral is real estate.

If Joe Doakes thinks John Doe owes him $5,000 for an unpaid loan or damaging his car or whatever, Joe cannot ordinarily "file a lien" anywhere. Joe's option to get a lien is to go to some court with jurisdiction, file and serve a lawsuit, and if he wins, get an abstract of judgment which then can be recorded with a County Recorder - and this creates a lien on John's real estate in that county. Joe also has many other options to try and get John to pay up.

A lien is an enforceable "charge" against property, not an unlitigated claim or contention of indebtedness.

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Answered on 3/07/10, 9:55 pm


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