Sec. 49-37. Dissolution of mechanic's lien by substitution of bond. Joinder of actions on claim and bond.
Sec. 49-37. Dissolution of mechanic's lien by substitution of bond. Joinder of
actions on claim and bond. (a) Whenever any mechanic's lien has been placed upon
any real estate pursuant to sections 49-33, 49-34 and 49-35, the owner of that real estate,
or any person interested in it, may make an application to any judge of the Superior
Court that the lien be dissolved upon the substitution of a bond with surety, and the
judge shall order reasonable notice to be given to the lienor of the application. If the
lienor is not a resident of the state, the judge may order notice to be given by publication,
registered or certified letter or personal service. If the judge is satisfied that the applicant
in good faith intends to contest the lien, he shall, if the applicant offers a bond, with
sufficient surety, conditioned to pay to the lienor or his assigns such amount as a court
of competent jurisdiction may adjudge to have been secured by the lien, with interest
and costs, order the lien to be dissolved and such bond substituted for the lien and shall
return the application, notice, order and bond to the clerk of the superior court for the
judicial district wherein the lien is recorded; and, if the applicant, within ten days from
such return, causes a copy of the order, certified by the clerk, to be recorded in the town
clerk's office where the lien is recorded, the lien shall be dissolved. Whenever a bond
is substituted for any lien after an action for the foreclosure of a lien has been commenced,
the plaintiff in the foreclosure may amend his complaint, without costs, so as to make
the action one upon the bond with which the plaintiff may join an action to recover upon
his claim. Whenever a bond is substituted for any lien before an action for the foreclosure
of the lien has been commenced, the plaintiff may join the action upon the bond with
an action to recover upon his claim. Whenever a bond has been substituted for any lien,
pursuant to this section, unless an action is brought to recover upon the bond within one
year from the date of recording the certificate of lien, the bond shall be void.
(b) Whenever a bond has been substituted for any lien pursuant to this section:
(1) The principal or surety on the bond, if no action to recover on the bond is then
pending before any court, may make application, together with a proposed order and
summons, to the superior court for the judicial district in which the action may be
brought, or to any judge of the court, that a hearing be held to determine whether the
lien for which the bond was substituted should be declared invalid or reduced in amount.
The court or judge shall thereupon order reasonable notice of the application to be given
to the obligee on the bond and, if the application is not made by all principals or sureties
on the bond, shall order reasonable notice of the application to be given to all other such
principals and sureties, and shall set a date for the hearing to be held thereon. If the
obligee or any principal or surety entitled to notice is not a resident of this state, the
notice shall be given by personal service, registered or certified mail, publication or
such other method as the court or judge shall direct. At least four days notice shall be
given to the obligee, principal and surety entitled to notice prior to the date of the hearing.
(2) The application, order and summons shall be substantially in the form established by subsection (b) of section 49-35a, adapted accordingly. The provisions of subdivisions (1) and (2) of subsection (b) of section 49-35a, shall apply.
(3) If an action on the bond is pending before any court, any party to that action may
at any time prior to trial, unless an application under subdivision (1) of this subsection has
previously been ruled upon, move that the lien for which the bond was substituted be
declared invalid or reduced in amount.
(4) No more than one application or motion under subdivision (1) or (3) of this
subsection may be ruled upon with respect to any single mechanic's lien, except that
the foregoing does not preclude an application or motion by a person not given notice
of the prior application or not a party to the action at the time the prior motion was ruled
upon. Nothing in this subdivision shall be construed as permitting a surety on a bond
to bring an application for discharge or reduction, if the validity of the lien has previously
been ruled upon pursuant to section 49-35a.
(5) Upon the hearing held on the application or motion set forth in this subsection,
the obligee on the bond shall first be required to establish that there is probable cause
to sustain the validity of the lien. Any person entitled to notice under subdivision (1) of
this section may appear, be heard and prove by clear and convincing evidence that the
validity of the lien should not be sustained or that the amount of the lien claimed is
excessive and should be reduced. Upon consideration of the facts before it, the court or
judge may: (A) Deny the application or motion if probable cause to sustain the validity
of the lien is established; or (B) order that the bond is void if (i) probable cause to sustain
the validity of the lien is not established, or (ii) by clear and convincing evidence, the
invalidity of the lien is established; or (C) order the amount of the bond reduced if the
amount of the lien is found to be excessive by clear and convincing evidence.
(6) Any order entered upon an application set forth in subdivision (1) of this subsection shall be deemed a final judgment for the purpose of appeal.
(1949 Rev., S. 7221; 1955, S. 2975d; P.A. 75-418, S. 8, 10; P.A. 76-436, S. 649, 681; P.A. 78-280, S. 1, 127; P.A. 79-602, S. 93; 79-631, S. 36, 111.)
History: P.A. 75-418 required that action be brought to recover upon bond within one year from date of recording
certificate of lien, rather than within two years, and added Subsec. (b); P.A. 76-436 added reference to judicial districts in
Subsec. (a) and deleted reference to applications made to court of common pleas in Subsec. (b), effective July 1, 1978;
P.A. 78-280 deleted reference to counties in Subsec. (a); P.A. 79-602 made minor changes in wording but made no
substantive changes; P.A. 79-631 made technical correction in Subsec. (b)(5).
See Sec. 52-192 re precedence in order of trial of cases where bond is substituted for mechanic's lien.
In action on bond, no recovery can be had for loss due to being prevented from completing contract. 89 C. 107. Amending
complaint to show substitution of bond for lien. 96 C. 401. Cited. 144 C. 499. In an action to recover upon a bond, defense
that lien was invalid as a blanket lien must be specially pleaded. 147 C. 351. Cited. 168 C. 371. Cited. 169 C. 76. Principal
or surety on bond which has been substituted for mechanic's lien by private agreement of parties may apply for discharge
or reduction of bond. 172 C. 1. Cited. 180 C. 501. Plaintiff's rights on the bond can rise no higher than those acquired
under the underlying mechanic's lien. Id., 545. Cited. 183 C. 85; Id., 108. Challenge by general contractor to constitutionality
of mechanic's lien statutes discussed. 185 C. 583.
Cited. 33 CA 563.
Cited. 15 CS 361. Cited. 23 CS 380. Cited. 31 CS 209. Cited. 33 CS 552. Cited. 42 CS 460.
Cited. 2 Conn. Cir. Ct. 622. 6 Conn. Cir. Ct. 456.
Subsec. (a):
Cited. 176 C. 409. Meaning of "person interested" discussed. 183 C. 108. Cited. 224 C. 563.
Cited. 6 CA 443. Bond voluntarily furnished by defendant must be treated same as if bond had been furnished pursuant
to court order in accordance with subsection. 57 CA 227.
Subsec. (b):
Plaintiff waived requirement for defendant to show probable cause pursuant to Subdiv. (5) when plaintiff said it wasn't
necessary to go through that formality. 269 C. 599.
Subdiv. (1) cited. 6 CA 443. Subdiv. (3) cited. Id. Subdiv. (6) cited. Id.