I built a house about a year ago. It looks like I am having more trouble than I imagined. Most issues are dealt with and slowly going away. One remaining issue is with the plumber. The pipe from hot water heater to vent out exhaust is a little too long. It can handle low volume but we can’t fill the soaking tub. I held off the last payment of about $5,000 until it is fixed. I thought we were still discussing for a mutually agreeable solution when they placed a lien on the house. That was over 4 months ago. I looked it up the state laws. They have to sue within 120 days after filing a lien as far as I can understand. Does that mean it is too late for them to sue? I would split the cost and pay them fully minus repair cost. On the other hand, their aggressive approach angers me wrong and wouldn’t mind seeing them not get anything. I will be talking to a lawyer. While waiting for the appointment, I’d like to organize my thoughts.
You may want to consider- does work meet local building code? Was permit approved?
Collect records of communications and payments to discuss with lawyer.
How did you determine this? There are likely minimum clearance requirements.
This isn’t the plumber’s issue. You bought too small of a tank. You could also check the water temperature in the tank. Soaking tub are huge volume. We have dual hot water heaters and filling the tub only works if you are not using hot water other places.
I am not an attorney (or a plumber), but I think that you will lose.
It is a new build. I assume everything is in order. The plumber did all the plumbing and had specs for the tub. Should have known how much hot water it needs. The plumber got the heater.
FYI - $5,000 is not worth of a “regular” lawsuit. It is a small claims court kind of money. Any reasonable person would understand that (but folks can be unreasonable).
Sounds like you have an instant hot water heater… they don’t work well with soaking tubs. Plan to add a holding DHW tank.
@BunsenBurner Are you saying they could be just saying to scare me off to cough up the money? I have not plan to sue them. In case they sue in a small claims court, I could defend myself? I am more worried about the lawyer fee.
First, I’m not a lawyer, I’m just familiar with the lien process.
Answering your question, it’s too late to foreclose, but MAYBE not sue.
State laws where you are may be different, but filing a lien for not being paid is part of the normal process of a contractor trying to get paid, if their job is complete. They must foreclose, a judicial process, on the lien within the specified time period designated by law. But the contractor can still sue you for a year or more, depending on the state.
The foreclosure process is judicial and in front of a judge. Both parties present their defense and the judge rules one way or another. It obviously can be a rather inexpensive process compared to a what I’d consider a “traditional” lawsuit.
ETA: A lien forclosure is a lawsuit, my apologies.
Generally small claims is everyone representing themselves. YMMV.
In my state, only individuals can use small claims court. If it is a small business the owner can, but if it is a corporation they have to go to county court and would need an attorney to represent the corporation.
It really varies widely who can use small claims and how much the biggest claim can be ($1000, $5000, $10,000).
@sushiritto The law reads they have 120 days to “enforce” the lien. Does it mean a foreclosure or a lawsuit? Can they not enforce the lien and proceed to sue?
A lien foreclosure action is a lawsuit to foreclose the mechanics lien. Just not in my view a traditional lawsuit, because more often than not, the contractor doesn’t typically need a lawyer though they may choose to have one.
The foreclosure period has passed. You may need to file something with the court/title company to discharge the lien from the record. That’s the good news.
The contractor may still try to sue you though, but I don’t know if that would fail miserably with an expired lien. I have not heard of that, probably because the court would throw it out since the lien period has expired.
With the expired lien period, I think you’re pretty much “golden.” Maybe there’s another remedy for the contractor, but I’m just not a savvy lawyer or a dumb one either. 
Did you have a general contractor? Usually it is their responsibility to clear all the liens.
Since the OP was paying the plumber directly, my guess is that the OP was acting as the GC
The mistake the plumber made was not putting the lean on a soon as the work was done prior to closing.
I disagree. The only thing that the plumber has given up is the security of the debt. Unless the OP was in a high equity position in they property, the plumber likely wouldn’t have received anything in a foreclosure. The real power for the plumber will come from placing/selling the debt to a collection agency. Reporting a $5k non medical debt to the bureaus will tank the OP’s credit score enough that they will likely pay.
Again, I’m not a lawyer, and I did say, maybe there’s some other way to collect after the lien has expired. But I have not heard of an expired mechanics lien being placed or sold to a collection agency, here in CA, IME. Not once. The contractor has either filed the lawsuit during the lien period or they walked away, because they missed the deadline.
Again, here in CA.
Personally, I would have the lien removed discharged from the court and title record and then send that item to collection agency, if the debt was referred to one. If the collection agency want’s to tank someone’s credit, based on an expired mechanics lien, then that opens them up for legal problems.
Also Igloo could just report the discharge of the lien to the credit agencies.
I disagree. The only thing that the plumber has given up is the security of the debt. Unless the OP was in a high equity position in they property, the plumber likely wouldn’t have received anything in a foreclosure. The real power for the plumber will come from placing/selling the debt to a collection agency. Reporting a $5k non medical debt to the bureaus will tank the OP’s credit score enough that they will likely
No it won’t, the collection isn’t based upon the lien, it is because the OP received goods and services from the plumber and didn’t pay. Only bankruptcy gets you out of debt. The only thing that happened at expiration of the lein was the debt converted from secured to unsecured. It is that easy for someone to walk away from their obligation.
The plumber could also decide to cancel the debt and send the OP a 1099-C and let the government collect their part.
That’s NOT the position of the property owner. They have a disagreement with the quality (or lack thereof) of the work, so they withheld payment until that issue is corrected by the plumber. The job is NOT done or wasn’t done correctly.
That isn’t how it works. Also, the plumber likely has a contact to install a XX gallon water heater. Buyers remorse isn’t a defense. The first complaint is laughable unless it is grossly wrong.
Actually, yes, that’s how it works, at least IME.
Some or most construction contracts in fact will have a retention, a % of the contract held back until x days after a job is complete. Igloo is holding $5,000 pending a resolution to the problem.
And even if the water heater was spec’ed out and written into a contract, the property owner should argue that it was the wrong one for the job. The property owner isn’t the plumbing expert here. No buyer’s remorse, just poor selection or sizing of the water heater for the job.