What Items are Lienable?

Generally

ALABAMA CODE § 35-11-210 provides that a lien can be claimed for work, labor or material constituting an improvement. The scope of the term “improvement” is left for determination on a case by case basis. Bates v. Harte, 26 So. 898 (1899). See also Mazel v. Bain, 133 So.2d 44 (1961). Courts are guided by the idea that a claimant’s right to lien depends upon the services rendered, not upon the title or classification of the claimant. Guaranty Pest Control v. Commercial Inv. & Dev. Corp., 264 So.2d 163 (1972).

Work performed by clearing, grading or excavating real property is considered a permanent improvement and is, therefore, lienable. Mazel v. Bain, 133 So.2d 44 (1961). An architect who prepares drawings and supervises work is also permitted to claim a lien. Hughes v. Torgerson, 11 So. 209 (1892). Construction of a coal mine and the supply of coal cars are also considered lienable. Central Trust Co. v. Sheffield & B. Coal Iron & Ry., 42 F. 106 (N.D. Ala. 1890).

The foregoing examples illustrate the lienability of work, labor, or materials furnished on the site or premises. A question that often arises, however, is whether work, labor, and materials manufactured or performed off site for materials that are to be incorporated into the improvement on site are also lienable. Alabama case law establishes that, in order to claim a lien for these “off site” items, it is necessary that the materials are furnished and the labor is performed on something that attaches to and becomes a part of the land, thereby substantially adding to its value. Waid v. Glencoe Lumber Co., 103 So.2d 730 (Ala. 1958). Thus, work performed on materials furnished for fabrication off site of components or equipment to be used on site should be subject to a lien.

Below Alabama courts have addressed other types of work as they relate to the availability of liens:

• The preparation of a surveyor’s map and the placing of stakes on the ground to mark the boundary lines of lots and streets according to such map are not considered lienable services. Wilkinson v. Rowe, 98 So.2d 435 (1957).
• A trade fixture, such as a printing press that can be easily removed, is not an improvement to land and, therefore, a mechanic’s lien will not attach to such a “trade fixture.” Forbes v. Alabama Machinery & Supply Co., 58 So. 398 (Ala. 1912).
• Pest control services are not a lienable contribution. Guaranty Pest Control, Inc. v. Commercial Inv. & Dev. Corp., 264 So.2d 163 (1972).
• Certain kinds of air conditioning systems are not considered to be trade fixtures and the contribution of labor to them may give rise to a claim of mechanic lien. Silverman v. Mazer Lumber & Supply Co., 42 So.2d 252 (1945).
• Over the course of construction, an owner may frequently request the contractor to perform work that has various worth or work that adds to the scope of work contemplated in the original contract. The contribution of such “extras” is typically treated as a contribution under the original contract and, consequently, is lienable. Wade v. Wyker, 55 So. 141 (1911).

Regarding damages, an issue in Alabama law is whether a lien claimant may obtain consequential damages such as delay or lost profit. The writer is not aware of any Alabama case addressing the question. However, considering that Alabama courts have extended lien coverage to interest and attorney fees, if the lien claimant’s contract unambiguously provides for such items, the claimant could argue that the lien should cover consequential damages.