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New York Lien Law and Insurance For NEW YORK LIEN LAW AND INSURANCE FOR NSTITUTE CONSTRUCTION I PROJECTS: A PRACTICAL LOOK Prepared in connection with a Continuing Legal Education course presented CLE at New York County Lawyers’ Association, 14 Vesey Street, New York, NY scheduled for February 26, 2015 Program Co-sponsors: NYCLA Construction Law Committee, Insurance Law Committee and Real Estate Section Program Chair: Ariel Weinstock, Katsy Korins LLP Faculty: Thomas Donohue, Baldon Group, Inc. Insurance; Al Stork, Lex Terrae Ltd/Old Republic National Title Insurance Company NYCLA This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 3 Transitional and Non-Transitional credit hours: 2 Professional Practice/Law Practice Management; 1 Skills. This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 3 hours of total CLE credits. Of these, 0 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law. ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey. Information Regarding CLE Credits and Certification New York Lien Law and Insurance for Construction Projects: A Practical Look February 26, 2015; 6:00 PM to 9:00 PM The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution. i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant. ii. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium. iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate. iv. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week. v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week. Thank you for choosing NYCLA as your CLE provider! New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646 New York Lien Law and Insurance for Construction Projects: A Practical Look Thursday, February 26, 2015 6:00 PM to 9:00 PM Program Co-sponsors: NYCLA Construction Law Committee, Insurance Law Committee and Real Estate Section Program Chair: Ariel Weinstock, Katsy Korins LLP Faculty: Thomas Donohue, Baldon Group, Inc. Insurance; Al Stork, Lex Terrae Ltd/Old Republic National Title Insurance Company AGENDA 5:30 PM – 6:00 PM Registration 6:00 PM – 6:10 PM Introductions and Announcements 6:10 PM – 9:00 PM Presentation and Discussion *** There will be two 10 minute breaks taken during the program. 2/23/2015 The NY Lien Law (Articles 2 and 3), Mechanic Liens, Building Loans and Applicable Case Law February 2015 Al Stork Senior Counsel Old Republic National Title Insurance Company/ Lex Terrae, Ltd Old Republic Title Insurance Group Who We Are • Over 250 offices, 4,000 employees, 8,200 agents • Nationwide reach – all 50 states • The fastest growing national title insurance company in the nation • Full line of title insurance & real estate settlement services • Emphasis on ethics & accountability • Industry leading financial strength ratings, strong balance sheet, conservative reserving 1 2/23/2015 Old Republic International About Our Parent • We are owned by Old Republic International • One of the nation’s 50 largest publicly held insurance organizations • Traded on the New York Stock Exchange, member of the Fortune 500 • 30 consecutive years of dividend growth • Over $16 billion in assets and over $3.7 billion in shareholders’ equity • Managed for the long run Balance Sheet Comparisons Consolidated GAAP as of 12/31/2013 $16.0 $14.0 $12.0 $10.0 $8.0 $'s in Billions $'s in $6.0 $4.0 $2.0 $0.0 ORI Fidelity 1st Amer Stewart Assets $16.5 $10.5 $6.5 $1.3 Reserves & Equity $13.2 $7.2 $3.5 $1.2 2 2/23/2015 Title Industry Market Share By Underwriting Family Market Share Inc (Dec) Yr 2008 Yr 2009 Yr 2010 Yr 2011 Yr 2012 Yr 2013 6 mo's 14 08 to 14 Fidelity 45.3% 41.6% 40.8% 37.6% 36.8% 34.6% 32.9% ‐27.4% 1st American 29.1% 27.8% 26.7% 26.8% 26.3% 26.9% 27.5% ‐5.5% ORT 5.6% 8.1% 11.0% 13.0% 13.5% 14.9% 14.8% 164.3% Stewart 12.6% 14.5% 13.7% 13.7% 13.0% 12.2% 12.7% 0.8% Regionals 7.4% 8.0% 7.8% 8.9% 10.4% 11.4% 12.1% 63.5% Total 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% Per ALTA statistics based on total premiums written. Market share for all years reflect the current family organization structure. 5 Overview •Purpose of the lien law •Mechanic’s liens (filing, priority, duration, how discharged) •Building loan contracts and how to ensure priority over potential mechanic’s liens •Applicable Case Law 3 2/23/2015 Purpose of Lien Law •Enacted to protect those parties who were not paid for labor performed or materials furnishedinconnectionwith the improvement of real property What is a mechanic’s lien ? •Created by state statute; secures priority of payment of the price or value of work performed and materials furnished in erecting or repairing a building or other structure •Attaches to the land as well as buildings and improvements erected thereon •Encumbers real property at the time a notice of lien is filed •No need for judicial approval prior to filing a mechanic’s lien •Challenges to the constitutionality of the lien law based upon a claim of deprivation of property without due process of law have been rejected. (Warren’s Weed NY real property, Mechanic’s liens, Section 1.03) •May be foreclosed pursuant to the provisions of the RPAPL. (Section 43 NYS Lien Law) 4 2/23/2015 Filing a Mechanic’s Lien •The right is afforded to a contractor, subcontractor, laborer, material men, landscape gardener, nurseryman or person or corporation selling fruit or ornamental trees, roses, shrubbery, vines and small fruits who performs labor or who furnishes materials for the improvement of real property with the consent or at the request of the owner or owner’s agent, contractor or subcontractor (Section 3 of the Lien Law) •What happens if works to the premises is ordered by a lessee and a mechanics lien is filed? •It is a question of fact as to whether the work was done with the consent or at the request of the fee owner or his agent Filing a Mechanic’s Lien If the lease requires the lessee to make improvements (not as general requirement to keep the premises in good repair), then the lessors consent will be found. Other factors to consider are: •If lessor fails to object to the improvement; •If lessor receives a benefit from the improvement; •If lessor gives a credit for improvement; •If lessor signs for authorization of plans for government authority; •If lessor expresses satisfaction with the work; •If lessor fails to attempt to stop the work; •If lessor waives a lease provision requiring his approval for the work; 5 2/23/2015 Filing a Mechanic’s Lien •If lessor is aware of improvements being made prior to execution of formal lease; •If lessor submits an application to municipality to have improvements connected with utility services. (Warren’s Weed NY Real Property, Mechanic liens, Section 2.03) •This analysis applies to coop unit leases also. •Section 2 (4) of the Lien Law defines “improvements” and items for which a mechanic’s lien may be filed •Lienor’s can obtain a lien by filing a notice of lien in the County Clerk’s office in the County in which the real property is located Filing a Mechanic’s Lien • Section 9: Notice of lien contents • Section 10: Lien must be filed within 8 months (or 4 months for a single family dwelling) after the completion of the contract or the final performance of the work or the furnishing of materials dating from the last item of work performed or materials furnished. Provided further where the notice of lien is for retainage, the notice of lien may be filed within 90 days after the date the retainage was due to be released.
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