For those artisan(s) and materialman(s) who furnish labor or material in the improvement of Hawaii real property and do not get paid for their services and materials, Hawaii law allows such persons to have the opportunity to obtain a lien upon the improvement as well as upon the interest of the owner of the improvement in the real property upon which the improvement is situated. Hawaii’s “Mechanic’s and Materialman’s Lien” statute provides for such remedy.
Any person claiming a mechanic’s or materialman’s lien is required to apply to the circuit court where the property is situated. Such person must submit an “Application For a Lien” together with a written “Notice of Lien”. The Application For a Lien must contain the following information: (1) the amount of the claim; (2) the labor or material furnished; (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 therein; and (7) any other matter necessary to a clear understanding of the claim. The Notice of Lien must set forth the alleged facts by virtue of which the person claims a lien.
The Application and Notice can be filed no later than forty-five days after the “date of completion” of the improvement against which it is filed. “Date of completion” means the time when the owner or general contractor for the improvement completes the publication of a notice that the improvement has been completed or has been abandoned and an affidavit of the publication, together with a copy of the notice has been filed in the office of the clerk of the circuit court where the property involved is situated. If a valid notice of completion is not published and filed within one (1) year after the actual completion or abandonment of the improvement the date of completion shall be deemed to be one year after actual completion or abandonment.
The Application and Notice must be served upon the owner of the property and any person with an interest therein and upon the party or parties who contracted for the improvements if other than the owner of the property or any person with an interest therein. The Application and Notice is required to be returnable not less than three nor more than ten days after service.
If both parties have been unable to reach a compromise prior to the return day hearing, the court will schedule a “probable cause” hearing in which the court will determine whether probable cause exists to permit the lien to attach to the property. Probable cause for the attachment of a lien is shown by the existence of actual or visible improvements to the subject property. Any person to whom notice is required has the opportunity to offer testimony and documentary evidence at the probable cause hearing on the issue of whether probable cause exists to permit the lien to attach. The lien shall not attach to the property until the court finds probable cause exists and so orders.
If the court finds that a probable cause exists to permit the lien to attach to the property, the court will issue an “Order Directing Lien to Attach”. The lien expires three months after the entry of the Order Directing Lien to Attach unless proceedings are commenced within that time to collect the amount due thereon by enforcing the same.
As you can see the process of claiming and attaching a mechanic’s and materialman’s lien in Hawaii is complex, especially if the lien will be contested and a probable cause hearing is required. Therefore, you should seek consultation with a Hawaii attorney experienced in mechanic’s and materialman’s lien in Hawaii.