by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

Normally, we do not report on many mechanic's lien cases because they tend to be jurisdiction specific. But this case states some mechanic's lien principles that might have wider application, and caught the editor somewhat by surprise. How would this case be resolved in your jurisdiction?

MECHANICS' LIENS; LIENABLE WORK: Hazardous waste removal activities are not lienable when part of "ordinary maintenance," but may give rise to a claim for restition on the part of a subcontractor against an owner, even if there is no privity. Haz-Mat Response, Inc. v. Certified Waste Services Limited, 896 P.2d 393 (Kan.App. 1995).

A subcontractor that performed hazardous waste-removal work brought suit to foreclose its alleged mechanics' lien. In reviewing the mechanics' lien statute, the court applied strict construction analysis in determining whether a lien attaches to the real property. The term "improvement" is generally defined as any physical addition made to real property that enhances the value of the land. Something must be added to the value of the property, although an actual increase in the value of the real property is not required. The work performed in this case was not part of any construction, improvement or renovation project, but was part of the regularly required maintenance and, therefore, was not determined by the court to be an improvement.

The court indicated that it was not basing its conclusion on the fact that the work of improvement did not result in the development of any new structure, but rather because it constituted a maintenance project, rather than an improvement project.

It went on to hold, however, that where the mechanic's lien statute does not apply, and the owner has not paid the general contractor for valuable work that a subcontractor has done with the owner's knowledge, the subcontractor may have a restitution claim directly against the owner. Here, the general contractor had declared bankruptcy, but it is unclear whether this circumstance is a precondition to the subcontracotr's restitution claim.

Comment: The court comments that this is a case of first impression in Kansas, and indeed cites few cases for most of its major premises in the development of the opinion. The concept that maintenance work, such as painting, roof repair, resurfacing, etc. is not lienable, is a new one to the editor, who perhaps should have paid closer attention. The court even goes so far as to suggest that equipment replacements are not lienable.

Thus, to extend the analysis, the court indicates that hazardous waste removal that is preliminary to a construction project may be lienable, but "mere maintenance" is not.

Having taken away with one hand, the court generously gives back with the other, providing a relatively broad equitable restitution right that may well catch the owner by surprise.

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