Opinion
No. CV 05 4004077
November 8, 2005
MEMORANDUM OF DECISION
The plaintiff, Creative D. Builders, LLC, has made application to discharge a mechanic's lien filed on its property at 71 Nason Road in Higganum, Connecticut (the "Property") on the grounds that there is not probable cause to sustain the validity of the lien. After a hearing the court finds that the plaintiff and the defendant, Siniscalco Construction, Inc., entered into a contract dated December 8, 2004, under the terms of which the defendant agreed to perform certain work in connection with the construction of a new house at the Property, including site work, stump removal, installation and backfilling of foundation, installation of septic system, installation of various drains, removal of excess fill from the site, and maintaining erosion control.
The price which the plaintiff agreed to pay for all the work under the contract was $54,000. Subsequent to the signing of the contract, the parties agreed that the defendant would perform rock removal work for an additional $7,000. This brought the total cost of the contract and the extras to $61,000. The contract required that the defendant commence work on or about December 20, 2004, complete the foundation by January 10, 2005 and install the septic system no later than February 1, 2005. The defendant did not start any work until March 2005 and finished the foundation work on April 8, 2005. The plaintiff paid the defendant a total of $41,000.
By July 2005, the defendant still had not even started to install the septic system. In addition, the defendant had performed various work defectively or had not performed it at all. The drains installed by the defendant did not function properly, the foundation had a large crack which allowed water into the basement of the house, and the erosion control measures were virtually nonexistent and ineffective. Therefore, in July 2005 the plaintiff wrote to the defendant advising him that he had breached the contract and was not to continue any work under the contract.
The defendant filed the mechanic's lien at issue claiming that the plaintiff owed him $5,900. Mr. Siniscalco, president of the defendant, concedes that the defendant did not even start installation of the septic system and that there were defects in some of the work it performed. Mr. Siniscalco further admitted that he never sent a bill to the plaintiff for the amounts he claimed were owed to the defendant in the mechanic's lien.
The court finds that the defendant did breach the contract by performing the work late, poorly, or not performing it at all. The plaintiff has paid an additional $16,400 to another contractor for the installation of the septic system and will have to pay an additional $5,500 to complete the contract and/or correct the work performed poorly by the defendant. This means that the plaintiff will pay $62,900 for work which the defendant agreed to do for $61,000. Therefore, there are no amounts due from the plaintiff to the defendant and the mechanic's lien is invalid.
Under the terms of Connecticut General Statutes § 49-35b in a hearing on an application to reduce or discharge a mechanic's lien under § 49-35a "the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien." The defendant has failed to establish the validity of the lien.
The plaintiff also argues that the lien is invalid because the defendant did not have a license as a new home construction contractor. Connecticut General Statutes § 20-417a(5) defines "new home construction contractor" as "any person who contracts with a consumer to construct or sell a new home or any portion of a new home prior to occupancy" and § 20-417a(8) defines "consumer" as "the buyer or prospective buyer, or the buyer's or prospective buyer's heirs or designated representatives, of any new home or the owner of property on which a new home is being or will be constructed regardless of whether such owner obtains a building permit as the owner of the premises affected pursuant to section 29-263."
Several superior court decisions have held that the failure of the lienor to possess a contractor's certificate invalidates the lien. See Young v. Page, Superior Court, Judicial District of Windham, Docket No. CV 03 071263 S, 2004 Ct.Sup. 9534 (Jun. 28, 2004, Swienton, J.); Day v. Benjamin, Superior Court, Judicial District of New London at Norwich, Docket No. 128955, 2004 Ct.Sup. 11927 (Aug. 2, 2004, Purtill, J.T.R.); Keenan Navarro Builders v. Breault, Superior Court, Judicial District of Windham at Putnam, Docket Number CV-01-00655806, 31 Conn.L.Rptr. 11 (December 10, 2001, Kocay, J.); Hopko v. St. Peter, Superior Court, Judicial District of Middlesex at Middletown, CV02 0100039 S, 35 Conn.L.Rptr. 719 (November 17, 2003, Jones. J.).
The court in Keenan Navarro Builders v. Breault, supra, considered the new home construction act and concluded that the legislative intent was to bring new home contractors under the same set of regulations as home improvement contractors. The court quoted the General Law Committee hearings, Part 1, 1999 Sess., p. 12, that the act was intended to "extend all the protections we currently provide to people who are victims of home improvement contractor fraud when they are victims of the same kind of fraud or simple aggravated negligence involving new home construction."
Connecticut General Statutes § 20-429(a) provides in relevant part: "No home improvement contract shall be valid or enforceable against an owner unless it: . . . (8) is entered into by a registered salesman or registered contractor . . ." The New Home Construction Contractors statutes, §§ 20-417b to 20-417i, do not contain a similar provision. Had the legislature wished to invalidate contracts of unregistered new home construction contractors it could have inserted language similar or identical to the language of § 20-429(a)(8) into the New Home Construction Contractor statute. It did not. Therefore, the defendant's failure to have a new home construction contractor's certificate does not invalidate the lien.
As set forth above, the lien is invalid because no amount is due from the plaintiff to the defendant and, therefore, the application to discharge is granted and the lien of the defendant is ordered discharged.