Mechanics Lien Filing Package — Hawaii

Mechanics Lien Filing Package (HAWAII)

Quick-Reference Summary

Part A — Pre-Lien Notice (Voluntary)

VOLUNTARY PRELIMINARY NOTICE
(Hawaii does not require this notice; provided as best practice)

To: [OWNER NAME] and [GENERAL CONTRACTOR NAME]
Address: [______________________________________]
Date: [__/__/____]

YOU ARE HEREBY NOTIFIED that the undersigned is furnishing labor and/or materials for improvements to the real property described below, and reserves all rights under HRS §§ 507-41 to 507-49.

In the event of nonpayment, the undersigned reserves the right to file an Application for a Lien in the Circuit Court of the [______________] Circuit within 45 days after the date of completion of the improvement, as authorized by HRS § 507-43.

Signature: __________________________________
Print Name: [______________________________________]
Title: [______________________________________]

Part B — Application for a Lien and Notice of Lien (Filed in Circuit Court)

IN THE CIRCUIT COURT OF THE [__________] CIRCUIT
STATE OF HAWAII

Civil No.: [_____________]

APPLICATION FOR A LIEN AND NOTICE OF LIEN
(HRS §§ 507-41 to 507-49; HRS § 507-43)

COMES NOW the Applicant, [CLAIMANT NAME], by and through undersigned counsel, and respectfully applies to this Honorable Court for an order directing a mechanic's and materialman's lien to attach to the real property described below, and in support states:

1. Applicant / Lienor.

Name: [______________________________________]
Address: [______________________________________]
Role: ☐ General contractor ☐ Subcontractor ☐ Materialman ☐ Laborer ☐ Design professional ☐ Other: [______________]

2. Parties Who Contracted for the Improvement.

Name: [______________________________________]
Address: [______________________________________]

3. General Contractor.

Name: [______________________________________]
Address: [______________________________________]

4. Owner(s) of the Property and Persons with an Interest.

5. Mortgagees / Encumbrancers / Surety (optional under § 507-43(a)).

6. Property Description. The real property to which the lien is sought to be attached is situated in the [__________] Circuit, State of Hawaii, and is described as follows (sufficient to identify the property — TMK strongly recommended):

Tax Map Key (TMK): [_______________________]
Common address: [______________________________________]
Legal description:
[____________________________________________________________]
[____________________________________________________________]

7. Visible Commencement of Operations. Visible commencement of operations within the meaning of HRS § 507-41 occurred on or about [__/__/____].

8. Labor and/or Material Furnished by Applicant.

[____________________________________________________________]
[____________________________________________________________]

Date Applicant first furnished: [__/__/____]
Date Applicant last furnished: [__/__/____]
Actual completion or abandonment of the improvement: [__/__/____]
Notice of Completion publication completed (if any): [__/__/____]
Affidavit of publication and notice filed with circuit court clerk (if any): [__/__/____]

9. Amount of Claim.

10. Assignment (if applicable). ☐ The claim has been assigned by [ASSIGNOR NAME] to Applicant. ☐ Not applicable.

11. Timeliness. The statutory date of completion under HRS § 507-43(f) or (g) is [DATE], based on [TWO PUBLICATIONS SEVEN DAYS APART IN A QUALIFYING COUNTY NEWSPAPER, AFTER SUBSTANTIAL COMPLETION OR ACTUAL ABANDONMENT, WITH AFFIDAVIT AND NOTICE FILED WITH THE CIRCUIT COURT CLERK / NO VALID NOTICE PUBLISHED AND FILED WITHIN ONE YEAR AFTER ACTUAL COMPLETION OR ABANDONMENT, SO THE DEEMED DATE IS ONE YEAR AFTER THAT EVENT]. If the general contractor published the notice, the contractor made a prior written demand on the owner on [DATE], and the owner failed to publish within five days. This Application and the accompanying Notice are filed not later than 45 days after the statutory date, as required by HRS § 507-43(b).

12. Notice of Lien (HRS § 507-43(a)). The separate written Notice of Lien below accompanies this Application and sets forth the alleged facts by virtue of which Applicant claims a lien.

PRAYER

WHEREFORE, Applicant respectfully prays for:

A. An Order to Show Cause, returnable not less than 3 nor more than 10 days after service, setting a hearing on this Application;
B. A finding that probable cause exists to permit a mechanic's and materialman's lien to attach to the subject property in the amount of $[__________];
C. Entry of an Order Directing Lien to Attach in favor of Applicant; and
D. Such other relief as the Court deems just and proper.

Dated: [_____________], Hawaii, this [__] day of [__________], 20[__].

Respectfully submitted,

__________________________________
[ATTORNEY NAME], Hawaii Bar No. [______]
[FIRM NAME]
[ADDRESS]
[PHONE] | [EMAIL]
Attorney for Applicant [CLAIMANT NAME]

VERIFICATION

State of Hawaiʻi, County of [__________].

I, [______________________________________], being first duly sworn upon oath, depose and say: I am the Applicant (or duly authorized agent of the Applicant) in the foregoing Application for a Lien and Notice of Lien; I have read the foregoing Application and know the contents thereof; and the matters therein stated are true and correct to the best of my knowledge, information, and belief.

Signature: __________________________________
Print Name: [______________________________________]

Subscribed and sworn to before me this [__] day of [__________], 20[__].

__________________________________
Notary Public — State of Hawaii
My commission expires: [__/__/____]

Part C — Accompanying Notice of Lien and Service Record

[CLAIMANT / ATTORNEY LETTERHEAD]

Date: [__/__/____]

NOTICE OF LIEN — ACCOMPANYING APPLICATION FOR A LIEN
(HRS § 507-43(a))

To: [OWNER NAME] and [PARTIES WITH AN INTEREST]
Address: [______________________________________]

Cc: [GENERAL CONTRACTOR NAME]; [CONTRACTING PARTY]

Re: Filing of Application for a Lien
Property TMK: [______________________________________]
Common address: [______________________________________]
Circuit Court of the [__________] Circuit, State of Hawaii
Civil No.: [_____________]
Filing Date: [__/__/____]
Return-Day Hearing Date / Time: [__/__/____] at [____]
Hearing Location: [______________________________________]

Applicant [CLAIMANT NAME] claims a mechanic's and materialman's lien under HRS §§ 507-42 and 507-43 for labor or materials furnished to improve the property described in the Application above. The supporting facts, amount claimed, contracting parties, and property description appear in the accompanying Application and its exhibits. The Application and this Notice have been filed in the Circuit Court of the [__________] Circuit, State of Hawaiʻi, under Civil No. [NUMBER]. A copy of each is to be served as prescribed by HRS § 507-43(a).

YOUR RIGHTS AT THE HEARING (HRS § 507-43(a)). At the return-day hearing, the Court will determine whether probable cause exists to permit a lien to attach to the property. You are entitled to appear, offer testimony and documentary evidence, and otherwise be heard. If you assert a set-off or otherwise dispute the amount of the requested lien, the Court will hear admissible evidence and will permit attachment only in the net amount the Court determines is the reasonable probable outcome of the dispute.

THE LIEN WILL NOT ATTACH unless and until the Court enters an Order Directing Lien to Attach upon a finding of probable cause.

DISCHARGE (HRS § 507-45). An owner, lessee, principal contractor, or intermediate subcontractor may discharge a lien by filing cash or a bond for twice the claim amount with the circuit court clerk or, for covered registered land, the Land Court assistant registrar.

Enclosure: Application for a Lien and Notice of Lien (with all exhibits)

Sincerely,

__________________________________
[ATTORNEY NAME], Hawaii Bar No. [______]
Attorney for Applicant

CERTIFICATE OF SERVICE

I certify that on [__/__/____] I caused the accompanying Application and this Notice of Lien to be served upon [LIST EVERY OWNER, INTEREST HOLDER, CONTRACTING PARTY, AND GENERAL CONTRACTOR SERVED], with supporting proofs of service attached:

☐ Personal service by [process server name]
☐ Posting on the improvement (if any required person could not be served as provided in HRS § 507-43)
☐ Other authorized method: [______________________]

Signature: __________________________________

Part D — Suit to Foreclose Mechanic's and Materialman's Lien

IN THE CIRCUIT COURT OF THE [__________] CIRCUIT
STATE OF HAWAII

Civil No.: [_____________]

COMPLAINT TO FORECLOSE MECHANIC'S AND MATERIALMAN'S LIEN

COMES NOW Plaintiff [CLAIMANT NAME], by and through undersigned counsel, and alleges:

JURISDICTION AND VENUE

1. This lien-enforcement action is filed in the circuit court of the circuit where the property is situated under HRS § 507-47.

2. Venue is proper in this circuit because the subject real property is located within the [__________] Circuit.

PARTIES

3. Plaintiff is [a/an _______________] with its principal place of business at [______________________________________].

4. Defendant [OWNER NAME] is the record fee owner of the subject property.

5. Defendant [GENERAL CONTRACTOR NAME] is joined because [DESCRIBE INTEREST OR LIABILITY].

6. Defendant [MORTGAGEE] holds a recorded mortgage and is joined for determination of its interest in the property.

FACTUAL BACKGROUND

7. On or about [__/__/____], Plaintiff entered into an agreement with [HIRING PARTY] to furnish [labor / materials] for improvements to the subject property.

8. Property:
   TMK: [_______________________]
   Common address: [______________________________________]

9. Plaintiff first furnished labor / materials on [__/__/____] and last furnished labor / materials on [__/__/____]. The improvement was completed on [__/__/____].

10. The agreed price (or fair and reasonable value) of Plaintiff's labor and materials is $[__________]. After all credits and offsets, the unpaid balance is $[__________].

11. On [__/__/____], within 45 days after completion as required by HRS § 507-43(b), Plaintiff filed an Application for a Lien and Notice of Lien in Civil No. [____________].

12. On [__/__/____], following the return-day hearing under HRS § 507-43(a), the Court entered an Order Directing Lien to Attach in the amount of $[__________].

13. On [DATE], Plaintiff demanded payment of $[AMOUNT DUE] from [PERSON]; payment was [REFUSED / NEGLECTED]. Under HRS § 507-47, demand and refusal or neglect to pay precede enforcement. This action is commenced within three months after entry of the Order Directing Lien to Attach, as required by HRS § 507-43(e).

If registered land is involved, the certified attachment order was filed with the Land Court assistant registrar on [DATE / NOT APPLICABLE], within seven days after entry if HRS § 507-43(b) required that filing.

CLAIM FOR RELIEF — FORECLOSURE OF LIEN

14. Plaintiff incorporates the foregoing.

15. Plaintiff is entitled to foreclose its mechanic's and materialman's lien upon the subject property by judicial sale.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays:

A. For judgment confirming the validity, amount, and priority of Plaintiff's mechanic's and materialman's lien in the amount of $[__________];
B. For a decree of foreclosure ordering judicial sale of the subject property to satisfy the lien;
C. For determination of the rights, claims, and priorities of all Defendants in the subject property;
D. For interest, costs of suit, reasonable attorneys' fees as permitted by law, and such other relief as the Court deems just.

Dated: [_____________], Hawaii, this [__] day of [__________], 20[__].

Respectfully submitted,

__________________________________
[ATTORNEY NAME], Hawaii Bar No. [______]
[FIRM NAME]
[ADDRESS]
[PHONE] | [EMAIL]
Attorney for Plaintiff

Part E — Pre-Filing Checklist

Lien rights

☐ Claimant within HRS § 507-42 (labor or materials in improvement of real property; design professionals included).
☐ Claimant and any hiring contractors satisfy the licensing conditions in HRS § 507-49(b); for materials supplied to contractors on primarily dwelling property, assess the additional § 507-49(a) conditions.

Visible commencement and priority

☐ Date of visible commencement of operations identified (HRS § 507-41) — determines priority vs. mortgages.

Tracking completion

☐ Check for a valid published notice of completion or abandonment and its affidavit and notice copy filed with the circuit court clerk under HRS § 507-43(f).
☐ If none was validly published and filed within one year after actual completion or abandonment, calculate the deemed completion date under HRS § 507-43(g).
☐ If the general contractor published the notice, confirm prior written demand on the owner and the owner's failure to publish within five days under HRS § 507-43(f).

Application for a Lien and Notice of Lien

☐ Application drafted with all HRS § 507-43(a) elements: amount of claim; labor/material furnished; property description sufficient for identification (TMK included); contracting parties; GC; owners and persons with an interest; (optional) mortgagees / surety.
☐ Complete the verification block if required by the court or chosen filing practice.
☐ Filing deadline calculated: 45 days from completion (HRS § 507-43(b)).
☐ Filed in Circuit Court of the circuit where the property is located.

Service

☐ Application and Notice served in manner prescribed for service of summons on owner, persons with an interest, and contracting party (if other than owner).
☐ If any required person cannot be so served, notice posted on the improvement.
☐ Certificate of Service retained.

Return-day hearing

☐ Hearing date 3–10 days after service.
☐ Evidence prepared to show probable cause for the lien.
☐ Order Directing Lien to Attach obtained.
☐ If registered land is affected and the leasehold time-share exception does not apply, file a certified copy of the attachment order with the Land Court assistant registrar within seven days after entry under HRS § 507-43(b).

Enforcement / foreclosure

☐ Enforcement deadline calendared: 3 months after Order Directing Lien to Attach (HRS § 507-43(e)).
☐ Demand and refusal or neglect to pay established before the enforcement action under HRS § 507-47.
☐ Foreclosure complaint filed in circuit court.
☐ Parties with interests affected by the requested foreclosure identified for joinder.

Bond-off / discharge contingencies

☐ Aware owner may discharge by depositing cash or bond at 2x the claim under HRS § 507-45.
☐ If liened work or material was furnished to a contractor, owner-retention rights under § 507-48 have been evaluated; the section does not itself create release-after-payment damages.

Sources and References

• HRS Chapter 507, Part II — Mechanic's and Materialman's Lien: https://www.capitol.hawaii.gov/hrscurrent/Vol12_Ch0501-0588/HRS0507/
• HRS § 507-43 (Filing notice, contents): https://www.capitol.hawaii.gov/hrscurrent/Vol12_Ch0501-0588/HRS0507/HRS_0507-0043.htm
• HRS § 507-45 (Discharge by bond / cash): https://www.capitol.hawaii.gov/hrscurrent/Vol12_Ch0501-0588/HRS0507/HRS_0507-0045.htm
• HRS § 507-46 (Visible commencement / priority): https://www.capitol.hawaii.gov/hrscurrent/Vol12_Ch0501-0588/HRS0507/HRS_0507-0046.htm
• HRS § 507-47 (Demand and enforcement action): https://data.capitol.hawaii.gov/hrscurrent/Vol12_Ch0501-0588/HRS0507/HRS_0507-0047.htm
• HRS § 507-49 (Exceptions): https://data.capitol.hawaii.gov/hrscurrent/Vol12_Ch0501-0588/HRS0507/HRS_0507-0049.htm
• HRS § 507-48 (Owner may retain amount due): https://data.capitol.hawaii.gov/hrscurrent/Vol12_Ch0501-0588/HRS0507/HRS_0507-0048.htm