LLC v. Glenn S. Weiser et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISSOLVE–DISCHARGE MECHANIC'S LIEN (# 114.00) AND OBJECTION THERETO (# 122.00)

This case comes to this court as a motion to discharge the mechanic's lien.   The court heard argument and evidence.

The parties have stipulated to the facts as appear of record dated June 21, 2013 being pleading 127.00.

A mechanic's lien is a claim placed on land records to secure payment for work performed and materials furnished for the improvement of real property or buildings attached to the land.   They are controlled by Connecticut General Statutes §§ 49–33 through 49–40a.   The mechanic's lien is a creature of statute and gives a right of action which did not exist in common law.   The purpose is to give one who furnishes materials or services, the security of the building and land for the payment of its claim by making such claim a lien thereon.   So it is clear, that one must do work or furnish materials in order to get a mechanic's lien.   The mechanic's lien statute defines the materials and services for which a mechanic's lien is available.   See, § 49–33a.   The statute is designed to furnish security for a contractor's labor and materials, not to provide a security interest for a builder's expectation of profit or other contract measure of damages.

Persons entitled to claim a mechanic's lien are those who provided services or materials in connection with any of the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot in the site development of a subdivision of any plot of land.

The court has adopted in Thompson & Peck, Inc. v. Division Drywal, 241 Conn. 370 (1997) a physical enhancement test.   Under this test, the statute does not extend to services and materials that have not enhanced the property in some physical manner, laid the ground work for physical enhancement of the property, or that did not play an essential part in the scheme of physical improvement.   Surveyors and engineers lay the groundwork for physical enhancement of the subdivision.

Accordingly, an architect provides services or materials in connection with the construction of a building and may seek a mechanic's lien.

Section 20–419 of the Home Improvement Act provides in Section 4, that a Home Improvement includes, but is not limited to the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation ․ Accordingly, since being architect complies with the mechanic's lien statute, thus by definition, the architect has furnished materials or services.   This court finds that an architect must be registered as a home improvement contractor unless exempted.   Section 20–428 provides for the exemptions and it specifically provides that persons “holding a current professional or occupational license issued pursuant to the General Statutes ․ provided such person engages only in that work for which such person is licensed or registered.”   It is clear that the plaintiff Gregory McGuire is not a licensed architect.   Therefore, there must be compliance with the Home Improvement Act and there must be a valid or enforceable contract.

It is clear to this court based on the testimony, that there is no valid or enforceable contract against the owner.   It was (1) not in writing, (2) not signed by the owner and the contractor, (3) did not contain the entire agreement between the owner and the contractor, (4) did not contain the date of the transaction, (5) did not contain the name and address of the contractor and the contractor's registration number, (6) did not contain a notice of the owner's cancellation rights in accordance with the provisions of Chapter 740, (7) did not contain a starting date and completion date, (8) was not entered into by a registered salesman or registered contractor.   The plaintiff was not a registered contractor.

In addition § 42–110b of the statutes provides for unfair trade practices.   The language provides “no person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.   This court finds that based on Exhibit 7, a joint Exhibit, being the building permit application, it provides in the application for an architect or professional engineer, this is filled out by the plaintiff as Gregory McGuire.   Then it clearly provides for the Connecticut Registration Number.   In simple common parlance, this is what is your registration number to wit, what is your architectural license number.   The plaintiff testified that the registration number he wrote down 30218269 was not his architectural number since he has no architectural license, but rather his membership number in the American Institute of Architects.   Clearly a misstatement.

The court finds that this is an unfair trade practice.

The court is provided under § 42–110g(d) with the right in addition to damages, or in lieu of damages, injunctive or equitable relief.

The court determines that equitable relief requires that this lien be deemed invalid and discharged.

For all the foregoing reasons the mechanic's lien is discharged and released.

SO ORDERED.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

Karazin, Edward R., J.T.R.