For those craftsmen and materialists who provide labor or material in the improvement of real property in Hawaii and do not receive payment for their services and materials, Hawaii law allows such persons an opportunity to obtain a lien on the improvement. . as well as on the interest of the owner of the improvement in the property on which the improvement is based. Hawaii’s “Mechanic’s and Materialman’s Link” statute provides for such a remedy.
Anyone claiming a mechanical or material lien must file an application with the circuit court where the property is located. Said person must submit a “Link Request” together with a “Link Notice” in writing. The Link Request must contain the following information: (1) the amount of the claim; (2) the labor or material provided; (3) a sufficient description of the property; (4) the names of the parties who contracted for the improvement; (5) the name of the general contractor; (6) names of the owners of the property and any person with an interest in it; and (7) any other matter necessary for a clear understanding of the claim. The Notice of Lien must set forth the alleged facts under which the person claims a lien.
The Application and Notice may be filed no later than forty-five days after the “completion date” of the improvement against which it is filed. “Completion Date” means the time the improvement owner or general contractor completes the posting of a notice that the improvement has been completed or abandoned and an affidavit of posting has been filed, along with a copy of the warning. at the clerk’s office of the circuit court where the subject property is located. If a valid notice of completion is not posted and filed within one (1) year after the actual completion or abandonment of the improvement, the completion date will be deemed to be one year after the actual completion or abandonment.
The Application and Notice must be delivered to the owner of the property and any person with an interest in it and to the party or parties who contracted for the improvements if they are not the owner of the property or any person with an interest in it. The Application and Notice are required to be returnable no less than three nor more than ten days after service.
If both parties have not been able to reach a compromise before the return day hearing, the court will schedule a “probable cause” hearing in which the court will determine whether probable cause exists to allow the lien to be attached to the property. Probable cause for attaching a link is shown by actual or visible improvements to the property in question. Any person required to be served has an opportunity to offer testimony and exhibits at the probable cause hearing on the question of whether probable cause exists to allow the lien to be applied. The bond will not be attached to the property until the court determines that probable cause exists and orders it to be so.
If the court finds that there is probable cause to allow the lien to be attached to the property, the court will issue an “Order That Lien Be Attached.” The lien expires three months after the entry of the Order ordering levying to levy, unless proceedings are commenced within that time to collect the amount due by executing the lien.
As you can see, the process of claiming and attaching a mechanic and material worker lien in Hawaii is complex, especially if the lien will be contested and a probable cause hearing is required. Therefore, you should seek a consultation with a Hawaii attorney experienced in Hawaii mechanical and material liens.
