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the Business of BuildinG real estate, Business, construction and environmental law alert: Are you Covered by the New Design Professional's Lien Law? p ropert Y ownerS, Contr aCtorS, lenders, architects, engineers, licensed site professionals (LSPs) and surveyors should be aware of important new legislation allowing "design professionals" to place a lien against a property to secure payments due under a contract for profession a l ser v ices . The l i s t of desig n professionals includes architects, professional engineers, LSPs, land surveyors and landscape architects who are licensed or registered in Massachusetts. (The list does not include professional wetland scientists, registered sanitarians or other environmental professionals.) This new law took effect July 1, 2011. The Mechanic's Lien Law, General Laws Chapter 254, has long provided a mechanism for building contractors, subcontractors and material suppliers to recover money due under a construction contract. Chapter 254 describes how the lien is created (file a notice of contract), perfected (file a lawsuit to enforce the lien), and enforced (sell the property and collect amounts due relative to other recorded security interests), along with many other critical details. However, prior to the July 1 amendments, architects, engineers, LSPs, and other design professionals typically did not have rights under the Mechanic's Lien Law. 26 | Greater Boston Builder+architect Here are some considerations for design professionals (and building owners, developers, landlords and lenders) under the new law. Of course, the statute must be read in full to appreciate all its considerations. > There must be a written contract. If the written contract is not directly with the owner (e.g., a subcontract with the prime, or first-tier, design professional), the owner must approve of the contract in writing. > It must be a private project, due to the continued exception for public property. > The design professional must be licensed or registered in Massachusetts. The lien can be claimed by an individual professional or a corporate entity that is authorized to practice one of the professions. > The design professional's lien can be created and enforced whether or not the building or improvement is commenced or completed and whether or not the professional services have been completed. > The design professional may record its notice of contract at the registry of deeds (or land court district) at any time, as long as it is before the end of the statutory deadlines (i.e., the earlier of 60 days after notice of substantial BoSton.BuilDerarChiteCt.Com completion or 90 days after last performing services), and provide notice of the recording to the owner. > The design professional must record its statement of account within 30 days after the deadlines to record the notice of contract (see above). > The design professional must file its lawsuit (a verified complaint) in court to enforce its lien within 90 days after filing its statement of account, and record the complaint at the registry within 30 days after it is filed. > The design professional must prevail in its lawsuit and then move to enforce the judgment (e.g., force a sale and recover proceeds) if the matter has not been resolved. > Owners, developers and lenders should consider requiring lien waivers from design professionals — as well as design professional subcontractors — just as they require them from contractors, subcontractors and material suppliers. Owners and developers should consider modifying their construction contracts to require contractors to address liens created by design professionals and to provide indemnification and defense of such liens, just as those provisions may be required for liens created by contractors, subcontractors and material suppliers. Attorney Peter Feuerbach's practice concentrates in real estate, business, construction and environmental law. He obtained his LEED Accredited Professional qualification in March 2009. Feuerbach may be reached at (617) 330-7136 or via e-mail at pfeuerbach@ rubinrudman.com. This article is intended to provide general information about an area of law. It is not legal advice. You should consult with legal counsel for advice specific to your circumstances. This memorandum is not an invitation to enter into and does not create an attorney-client relationship. Please do not send confidential information without first receiving permission to do so from Feuerbach or one of his attorneys. n