New Jersey § 2a:44a-21

§ 2a:44a-21.

a. The Legislature finds that the ability to sell and purchase residential housing

is essential for the preservation and enhancement of the economy of the State of New

Jersey and that while there exists a need to provide contractors, subcontractors and

suppliers with statutory benefits to enhance the collection of money for goods, services

and materials provided for the construction of residential housing in the State of

New Jersey, the ability to have a stable marketplace in which families can acquire

homes without undue delay and uncertainty and the corresponding need of lending institutions

in the State of New Jersey to conduct their business in a stable environment and to

lend money for the purchase or finance of home construction or renovations requires

that certain statutory provisions as related to the lien benefits accorded to contractors,

subcontractors and suppliers be modified. The Legislature further finds that the construction of residential housing generally

involves numerous subcontractors and suppliers to complete one unit of housing and

that the multiplicity of lien claims and potential for minor monetary disputes poses

a serious impediment to the ability to transfer title to residential real estate expeditiously. The Legislature further finds that the purchase of a home is generally one of the

largest expenditures that a family or person will make and that there are a multitude

of other State and federal statutes and regulations, including “The New Home Warranty

and Builders' Registration Act,” P.L.1977, c. 467 ( C.46:3B-1 et seq. ) and “The Planned Real Estate Development Full Disclosure Act,” P.L.1977, c. 419

( C.45:22A-21 et seq. ), which afford protection to consumers in the purchase and finance of their homes,

thereby necessitating a different treatment of residential real estate as it relates

to the rights of contractors, suppliers and subcontractors to place liens on residential

real estate. The Legislature declares that separate provisions concerning residential construction

will provide a system for balancing the competing interests of protecting consumers

in the purchase of homes and the contract rights of contractors, suppliers and subcontractors

to obtain payment for goods and services provided. b. The filing of a lien for work, services, material or equipment furnished pursuant

to a residential construction contract shall be subject to the following additional

requirements: (1) As a condition precedent to the filing of any lien arising under a residential

construction contract, a lien claimant shall first file a Notice of Unpaid Balance

and Right to File Lien by lodging for record the Notice within 60 days following the last date that work,

services, material or equipment were provided for which payment is claimed in accordance with subsection b. of section 20 of P.L.1993, c. 318 ( C.2A:44A-20 ) , and comply with the remainder of this section. (2) Upon its lodging for record, a Notice of Unpaid Balance and Right to File Lien, shall be served in accordance with the provisions for the service of lien claims in section 7 of P.L.1993, c. 318 ( C.2A:44A-7 ) . (3) Unless the parties have otherwise agreed in writing to an alternative dispute

resolution mechanism, within 10 days from the date the Notice of Unpaid Balance and Right to File Lien is

lodged for record , the lien claimant shall also serve a demand for arbitration and fulfill all the

requirements and procedures of the American Arbitration Association to institute an

expedited proceeding before a single arbitrator designated by the American Arbitration

Association. The demand for arbitration may be served in accordance with the provisions for the

service of lien claims in section 7 of P.L.1993, c. 318 ( C.2A:44A-7 ) along with: (a) a copy of the completed and signed Notice of Unpaid Balance and

Right to File Lien; and (b) proof by affidavit that the Notice of Unpaid Balance

and Right to File Lien has been lodged for record. If not yet provided at the time of service of the demand for arbitration, a copy of

the Notice of Unpaid Balance and Right to File Lien marked “filed” by the clerk's

office shall be provided by the claimant to the parties and the arbitrator, as a condition

precedent to the issuance of an arbitrator's determination. All arbitrations of Notices of Unpaid Balance and Right to File Lien pertaining to

the same residential construction shall be determined by the same arbitrator, whenever

possible. The claimant, owner, or any other party may also request consolidation in a single

arbitration proceeding of the claimant's Notice of Unpaid Balance and Right to File

Lien with any other Notice of Unpaid Balance and Right to File Lien not yet arbitrated

but lodged for record by a potential lien claimant whose name was provided in accordance

with section 37 of P.L.1993, c. 318 ( C.2A:44A-37 ). The request shall be made in the demand for arbitration or, in the case of a request

by a person other than the claimant, by letter to the arbitrator assigned to the arbitration

or, if none has been assigned, to the appropriate arbitration administrator, within

five days of when the demand for arbitration is served. The arbitrator shall grant or deny a request for a consolidated arbitration proceeding

at the arbitrator's discretion. (4) Upon the closing of all hearings in the arbitration, the arbitrator shall make

the following determinations: (a) whether the Notice of Unpaid Balance and Right

to File Lien was in compliance with section 20 of P.L.1993, c. 318 ( C.2A:44A-20 ) and whether service was proper under section 7 of P.L.1993, c. 318 ( C.2A:44A-7 ) ; (b) the earned amount of the contract between the owner and the contractor in accordance

with section 9 of P.L.1993, c. 318 ( C.2A:44A-9 ); (c) the validity and amount of any lien claim which may be filed pursuant to the Notice

of Unpaid Balance and Right to File Lien; (d) the validity and amount of any liquidated or unliquidated setoffs or counterclaims

to any lien claim which may be filed; and (e) the allocation of costs of the arbitration among the parties. When making the above determination, the arbitrator shall also consider all determinations

made by that arbitrator in any earlier arbitration proceeding pertaining to the same

residential construction. (5) If the amount of any setoffs or counterclaims presented in the arbitration cannot be determined by the arbitrator in a liquidated amount, the arbitrator, as

a condition precedent to the filing of the lien claim, shall order the lien claimant

to post a bond, letter of credit or funds with an attorney-at-law of New Jersey, or

other such person or entity as may be ordered by the arbitrator in such amount as

the arbitrator shall determine to be 110% of the approximate fair and reasonable value

of such setoffs or counterclaims, but in no event greater than the amount of the lien claim which may be filed. This 110% limitation for any bond, letter of credit or funds shall also apply to any alternative dispute resolution

mechanism to which the parties may agree. When making the above determinations, the arbitrator shall consider all determinations

made by that arbitrator in any earlier arbitration proceeding pertaining to the same

residential construction. (6) The arbitrator shall make such determinations set forth in paragraphs (4) and

(5) of this subsection and the arbitration proceeding shall be completed within 30 days of receipt of the lien claimant's demand for arbitration by the American

Arbitration Association unless no response is filed, in which case the arbitrator shall make such determinations

and the arbitration proceeding shall be deemed completed within 7 days after the time

within which to respond has expired . These time periods for completion of the arbitration shall not be extended unless otherwise agreed to by the parties and approved by the arbitrator . If an alternative dispute mechanism is alternatively agreed to between the parties,

such determination shall be made as promptly as possible making due allowance for

all time limits and procedures set forth in this act. The arbitrator shall resolve a dispute regarding the timeliness of the demand for

arbitration. (7) Any contractor, subcontractor or supplier whose interests are affected by the

filing of a Notice of Unpaid Balance and Right to File Lien under this act shall be permitted to join in such arbitration; but the arbitrator shall

not determine the rights or obligations of any such parties except to the extent those

rights or obligations are affected by the lien claimant's Notice of Unpaid Balance

and Right to File Lien. (8) Upon determination by the arbitrator that there is an amount which, pursuant to

a valid lien shall attach to the improvement, the lien claimant shall, within 10 days

of the lien claimant's receipt of the determination, lodge for record such lien claim in accordance with section 8 of P.L.1993, c. 318 ( C.2A:44A-8 ) and furnish any bond, letter of credit or funds required by the arbitrator's decision. The failure to lodge for record such a lien claim, or furnish the bond, letter of credit or funds, within the 10-day

period, shall cause any lien claim to be invalid. (9) Except for the arbitrator's determination itself, any such determination shall

not be considered final in any legal action or proceeding, and shall not be used for

purposes of collateral estoppel, res judicata, or law of the case to the extent applicable. Any finding of the arbitrator pursuant to this act shall not be admissible for any purpose in any other action or proceeding. (10) If either the lien claimant or the owner or community association in accordance with section 3 of P.L.1993, c. 318 ( C.2A:44A-3 ) is aggrieved by the arbitrator's determination, then the aggrieved party may institute a summary action in the Superior Court, Law Division, for the

vacation, modification or correction of the arbitrator's determination. The arbitrator's determination shall be confirmed unless it is vacated, modified

or corrected by the court. The court shall render its decision after giving due regard to the time limits and

procedures set forth in this act and shall set time limits for lodging for record the lien claim if it finds, contrary

to the arbitrator's determination, that the lien claim is valid or the 10-day requirement

for lodging for record required by paragraph (8) of this subsection has expired . (11) In the event a Notice of Unpaid Balance and Right to File Lien is filed and the

owner conveys its interest in real property to another person before a lien claim

is filed, then prior to or at the time of conveyance, the owner may make a deposit

with the county clerk where the improvement is located, in an amount no less than

the amount set forth in the Notice of Unpaid Balance and Right to File Lien. For any deposit made with the county clerk, the county clerk shall discharge the

Notice of Unpaid Balance and Right to File Lien or any related lien claim against

the real property for which the deposit has been made. After the issuance of the arbitrator's determination set forth in paragraphs (4)

and (5) of this subsection, any amount in excess of that determined by the arbitrator

to be the amount of a valid lien claim shall be returned forthwith to the owner who

has made the deposit. The balance shall remain where deposited unless the lien claim has been otherwise

paid, satisfied by the parties, forfeited by the claimant, invalidated pursuant to

paragraph (8) of this subsection or discharged under section 33 of P.L.1993, c. 318 ( C.2A:44A-33 ) . Notice shall be given by the owner in writing to the lien claimant within five days

of making the deposit. (12) Solely for those lien claims arising from a residential construction contract,

if a Notice of Unpaid Balance and Right to File Lien is determined to be without basis,

the amount of the Notice of Unpaid Balance and Right to File Lien is significantly

overstated, or the Notice of Unpaid Balance and Right to File Lien is not lodged for record: (a) in substantially the form, (b) in the manner, or (c) at a time in accordance with this act, then the claimant shall be liable for all damages suffered by the owner

or any other party adversely affected by the Notice of Unpaid Balance and Right to

File Lien, including all court costs, reasonable attorneys' fees and legal expenses

incurred. (13) If the aggregate sum of all lien claims attaching to any real property that is

the subject of a residential construction contract exceeds the amount due under a

residential purchase agreement, less the amount due under any previously recorded

mortgages or liens other than construction liens, then upon entry of judgment of all

such lien claims, each lien claim shall be reduced pro rata. Each lien claimant's share then due shall be equal to the monetary amount of the

lien claim multiplied by a fraction in which the denominator is the total monetary

amount of all valid claims on the owner's interest in real property against which

judgment has been entered, and the numerator is the amount of each particular lien

claim for which judgment has been entered. The amount due under the residential purchase agreement shall be the net proceeds

of the amount paid less previously recorded mortgages and liens other than construction

liens and any required recording fees.