National Mechanic’s Lien Law? A Response

Construction attorney, entrepreneur, and good friend Scott Wolfe (@scottwolfejr and @zlienit) recently posted his thoughts and endorsement of a uniform national mechanic’s lien law.  Aside from the interesting photo of his dog in sunglasses (I still want to know how he got the dog to sit still for the photo), Scott made some interesting arguments for why we should abandon the state by state, property law based, mechanic’s lien regime in favor of a national uniform law along the lines of the UCC or other uniform procedural statutes.

The post got me thinking.  As one that firmly believes that smaller units of government work more effectively to deal with the very fact specific nature of business and construction transactions, even I can see how such a change would be tempting.  This is particularly true for national construction suppliers and those few construction contractors with a national, multi-state, construction business.  In many ways, having these rules “nationalized” would make the lives of those that have this sort of geographically wide construction business much easier.

However, and in some ways to play devil’s advocate, a vast majority of construction is very much local.  For the numerous contractors and subcontractors for whom work is done in one state alone, these uniformity concerns are less of an issue, if they are an issue at all.  As a Virginia construction attorney with a relatively local practice, these types of issues rarely arise in my law practice.  In short, the lack of uniformity, while possibly annoying, is not as big an issue for me and my clients as one may think.

Aside from my general distaste for monkeying with mechanic’s lien laws, many of the more vexing concerns (some of which I’ve expressed when discussing the Virginia lien statute) that Scott expressed in his thoughtful piece have to do with the content of the various state lien statutes as opposed to the varied nature of those laws across state borders.  Frankly, I believe that these types of concerns will not go away just because we try a “one size fits all” national approach.  Any concerns with the statute driven, and sometimes overly form driven, nature of the process and its interpretation by the various state courts will only be moved (not necessarily elevated) to the national level.

My experience with uniform statutes is that the interpretation of those statutes once adopted (which is another issue that won’t be discussed here) is far from uniform.  for example, how a contract would affect mechanic’s lien rights varies from state to state.  Even under a uniform lien statute, adopted in all 50 states, contractual terms can, and should, affect the rights of the parties.  Virginia allows for the waiver of lien rights by contract while other states either by court opinion or statute do not.  Would a national uniform statute (as opposed to federal legislation) overrule these statutes?  Would it in effect modify thousands of contracts to add certain terms whether the parties decide to include them?  I do not know the answer, but these are just a few of the questions that come to mind.

Throw in a few hundred years of state property law, the constitutional issues with such national statutes, and years of local practice and the practical issues with the idea are nearly overwhelming. Certain areas of legal practice and commerce (for instance service of process and interstate sales of goods) lend themselves to uniform statutes in a practical and efficient manner.  I am just not sure that mechanic’s liens are one of them.

Thanks to Scott for the thought provoking post.

What are your thoughts on this idea?  Where do my thoughts run off of the rails?  Please let me know.

As always, I welcome your comments.  Also, please subscribe to keep up with this and other Construction Law Musings.