If an owner of a one family house has a contractual dispute with a contractor and the contractor attempts to place a lien on the property pursuant to the Construction Lien Law, what happens if the lien claim is not lodged in accordance with lien law.
Here is where the issue arises. The property is located in County A and the lien claim was filed with the Clerk of County A. The homeowner filed an action in Special Civil Part in County B, where the contractor lives. The Special Civil Part in County A told him he had to file in County B because that is where the contractor resides. The Judge in County B is asking for a legal citation to the authority that permits him to direct the Clerk of County A to discharge the lien claim.
N.J.S.A. 2A:44A-14.b permits a property owner to file an action to compel the discharge of the lien claim. The statute does not address venue, but common sense suggests that the action should be filed in the same County where the real estate is located, and in which the lien claim has been filed. By Court rule, the proper venue for actions involving real estate is generally the County in which the realty is located. See .R.4.3-2.
Some lawyers think the Judge in County B has inherent authority, as a Superior Court Judge, to direct that the lien claim be discharged. If the Judge is unwilling to sign an order discharging the lien claim, perhaps he will enter an order transferring the case to County A. See.R. 4.3-3.
Another legal commentator believes the previously cited Court Rules apply in general to Chancery and Law Division, in which Rule 4:3-2 states, “Venue shall be laid by the plaintiff in Superior Court actions as follows: (1) actions affecting title to real property or a possessory or other interest therein, or for damages thereto, or appeals from assessments for improvements, in the County in which any affected property is situate.”
However, for Special Civil Part, Rule 6:1-3 applies, which states, “Except as otherwise provided by statute, venue in actions in the Special Civil Part and the Small Claims Section shall be laid in the County in which at least one defendant in the actions resides.”
So, a case filed in Chancery would need to be venued in the County of the property; whereas a case filed in Special Civil Part would need to base venue of the residence of the defendant as the County of defendant’s residence.
I think the best practice is to file the lien in the County where the property is located in either the Special Civil Part of the Superior Court or Superior Court depending on the particulars of the claim.
To discuss your NJ lien law matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Lien Law Attorney