Opinion
FBTCV166055748S
11-08-2016
Terra Mar Construction, LLC v. Andover Street Associates, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
Defendant Andover Street Associates, LLC ('Andover") has moved to discharge a mechanics lien filed by Terra Mar Construction, LLC ('Terra Mar") for certain construction work performed to improve property located in Bridgeport. For the reasons stated below, the mechanics lien is discharged.
The initial burden of proof on a hearing to discharge a mechanics lien under C.G.S § 49-35b is on the contractor who filed the lien:
General Statutes § 49-35b(a)2 provides that before a lien can be upheld the lienor must establish probable cause to sustain the validity of the lien. Proof of probable cause is not as demanding as proof by a fair preponderance of the evidence. Ledgebrook Condominium Asso. v. Lusk Corp., 172 Conn. 577, 584, 376 A.2d 60 (1977). " 'The legal idea of probable cause is a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.' Wall v. Toomey, 52 Conn. 35, 36 [1884] . . ." Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, supra .
In order to demonstrate probable cause to support a lien upon land that he has improved, a person must first show that he is one of those persons entitled to claim a lien. " 'Those who provide services or materials in connection with the construction of a building are entitled to claim a lien on the land that they have improved if they fall into one of two categories. Lienors are protected if they have a claim either (1) by virtue of an agreement with or the consent of the owner of the land, or (2) by the consent of some person having authority from or rightfully acting for such owner in procuring labor or materials.' Hall v. Peacock Fixture & Electric Co., 193 Conn. 290, 293, 475 A.2d 1100 (1984), quoting Seaman v. Climate Control Corporation, 181 Conn. 592, 595, 436 A.2d 271 (1980)." Newtown Associates v. Northeast Structures, Inc., 15 Conn.App. 633, 636-37, 546 A.2d 310 (1988).
Once probable cause to sustain the validity of the lien is shown by the contractor, the burden shifts to the movant to prove by clear and convincing evidence that the lien is invalid. See Rutka v. City of Meriden, 145 Conn.App 202, 211, 75 A.3d 722 (2013).
Connecticut General Statutes § 49-33(a) sets out the requirements for a valid mechanics lien:
(a) If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim. (Emphasis added.)
In New England Sav. Bank v. Meadow Lakes Realty Corp., 243 Conn. 601, 617, 706 A.2d 465 (1998), the Supreme Court held " . . . a lien is invalid unless the party requesting the work is the owner of the party or has an equitable interest in that property." Consent by the owner of the property on which the improvement is made, or someone having authority, must have consented to the services having been rendered; the consent of a tenant without more is not sufficient to support a lien on a landlord's property. See Hall v. Peacock Fixture & Electric, Inc., 193 Conn. 290, 294, 475 A.2d 1100 (1984).
In Hall the Supreme Court identified the two classes of people entitled to assert a mechanics lien:
We recently delineated in Seaman v. Climate Control Corporation, 181 Conn. 592, 595, 436 A.2d 271 (1980) the two classes of people entitled to claim a lien upon land that they have improved: " Those who provide services or materials in connection with the construction of a building are entitled to claim a lien on the land that they have improved if they fall into one of two categories. Lienors are protected if they have a claim either (1) by virtue of an agreement with or the consent of the owner of the land, or (2) by the consent of some person having authority from or rightfully acting for such owner in procuring labor or materials.
Terra Mar did not establish probable cause that the work was done with the consent of the owner of the property. There was evidence that Terra Mar was a subcontractor of a subcontractor, but no evidence that the subcontractor or any general contractor was working for the owner. The work was done at the direction of an engineer, but there was no evidence that the engineer was the agent of the property owner. Without proof of the owner's consent to the work the Contractor failed to satisfy its burden under C.G.S. § 49-35b so the mechanics lien must be discharged.
That Andover declined to put on a case does not matter because Terra Mar failed to sustain its initial burden of proving probable cause that the lien was valid under C.G.S. § 49-33.