§507-42  When allowed; lessees, etc. 
Any person or association of persons furnishing labor or material in the
improvement of real property shall have a lien upon the improvement as well as
upon the interest of the owner of the improvement in the real property upon
which the same is situated, or for the benefit of which the same was
constructed, for the price agreed to be paid (if the price does not exceed the
value of the labor and materials), or if the price exceeds the value thereof or
if no price is agreed upon by the contracting parties, for the fair and
reasonable value of all labor and materials covered by their contract, express
or implied.



Where the terms of a lease, contract of sale,
or instrument creating a life tenancy require the improvement of the real
property, the interest of the lessor, vendor, or remainderman in the
improvement and the land upon which the same is situated shall likewise be
subject to the lien, and any provision for forfeiture or other penalty against
the lessee, vendee, or life tenant in case of the filing of a mechanic's or
materialman's lien or actions to enforce the same, shall not affect the rights
of lienors. [L 1888, c 21, §1; RL 1925, §2891; am L 1929, c 207, §1; am L 1933,
c 143, §1; RL 1935, §4365; RL 1945, §8769; am L 1949, c 241, §2; am L Sp 1949,
c 28, §1; RL 1955, §193-41; HRS §507-42]



 



Cross References



 



  Condominiums, see §§514A-16 and 514B-43.



 



Attorney General Opinions



 



  Public works not subject to lien.  Att. Gen. Op. 72-13.



 



Case Notes



 



  Where plaintiff did not provide to homeowners the lien
disclosure notices before or upon signing of the contract or prior to the
commencement of the work as required by §444-25.5(a), plaintiff's conduct was
an unfair or deceptive practice that rendered its contract void and
unenforceable at law or in equity under §480-12; thus, plaintiff was not
entitled to a lien upon homeowners' property under this section, and trial
court did not err in dismissing its lien application.  111 H. 349, 141 P.3d
996.



 



Abandonment.



  Work by contractor does not work a forfeiture of rights of
subcontractor to lien for materials furnished prior to abandonment.  10 H. 151,
157.



 



Allowed when; nature of lien.



  Though the lien is given by statute, and not by contract, it
is dependent upon and does not, exist in absence of contract.  14 H. 448, 451;
16 H. 23; 20 H. 693, 696-698; 22 H. 765, 769; 24 H. 181, 188.  It is necessary
to allege and prove the contractual relation.  16 H. 23.



  As §480-12 voided the contract between homeowner and
contractor, §480-12 and this section precluded the imposition of a lien under
this section upon the homeowner's property by contractor who failed to comply
with the requirements of §444-25.5.  96 H. 365 (App.), 31 P.3d 222.



 



Construction.



  Statute strictly construed and all the provisions of the
statute must be strictly complied with.  9 H. 23, 25; 10 H. 151, 159; 25 H.
214, 218.  But remedial portions should be liberally construed.  22 H. 765; 24
H. 39, 43; 40 H. 325.  See 38 H. 372.



 



Estoppel.



  Materialman who is surety on contractor's bond to owner not
estopped to assert materialman's lien.  9 H. 364.  Materialman's lien cannot be
destroyed by provisions in contract between owner and contractor against liens
of which he was not a party and had no notice.  20 H. 693.  Materialman does
not waive lien by charging items on materialman's books to subcontractor.  14
H. 448.  Assignment to materialman by the contractor of all moneys payable
under the contract, accepted by the owner "subject to all the conditions
of the contract," does not estop the materialman from enforcing lien.  10
H. 151.



  Materialman who fails to warn homeowner of financial
precariousness of contractor, when estopped.  56 H. 251, 535 P.2d 129.



  Actual or visible improvements must exist before lien can
attach.  62 H. 13, 608 P.2d 405.



  Cited:  59 H. 612, 585 P.2d 1265.



 



Liability of owner.



  Not personally liable in assumpsit upon implied promise of
subcontractor or materialman for materials furnished the contractor.  16 H.
23.  Payment, waiver.  32 H. 913.



 



Liability of vendor.



  Upon breach of covenant to pay by vendee.  40 H. 325.



 



Lien.



  Cannot exist or be enforced against a structure separately
from the interest of the owner in the land.  20 H. 180; 21 H. 585, 598.  Nor
can it exist unless the improvement is authorized by the owner.  20 H. 693,
697-698.



  When State is vendor, second paragraph of section making
interest of vendor subject to lien is not applicable.  51 H. 87, 451 P.2d 809.



  Fact that project site is owned by government in fee simple
does not make private leasehold interest thereon immune from lien.  52 H. 298,
475 P.2d 362.



  Enforcement by trustees of employee benefit trust fund
upheld.  63 H. 566, 633 P.2d 1106.



  Preparers of architectural and engineering plans entitled to
mechanic's lien to the extent of the value of their services which are
incorporated into the final structure.  3 H. App. 58, 641 P.2d 337.



 



Lien accrues.



  In favor of subcontractors and materialmen independently of
the original contractor and not by way of subrogation to the rights of the
latter.  10 H. 151, 153, 154; 20 H. 693, 695.  A person furnishing materials to
a subcontractor comes within the statute.  14 H. 448.  Lien runs to any person
furnishing labor or materials.  20 H. 693, 695.  Except a mere trespasser.  16
H. 23; 20 H. 693, 697-698.



 



Materials.



  No lien for materials furnished for but not incorporated in
the building.  10 H. 151.  Cash advanced is neither labor nor materials.  14 H.
448.  Proof that materials were ordered for and delivered to the building is
prima facie evidence that they were put into the building.  10 H. 151, 158; 12
H. 356.  Lien cannot be enforced for lienable items under entire contract which
includes non-lienable items unless price severable.  16 H. 418, 425, rev'd on
other grounds, 205 U.S. 340.



 



Owner.



  Includes a lessor whose lease requires the erection of
buildings although the lessee contracted for the building.  22 H. 765; 24 H.
181, 188.  Lessor and lessee both owners.  22 H. 765; 24 H. 181, 188.  Lien
attaches to equitable interests.  30 H. 882.



  Where a lease requires the construction of improvements by a
lessee, the lessor's interest in the property is subject to mechanic's and
materialman's liens.  2 H. App. 339, 631 P.2d 1211.



 



Preemption.



  ERISA does not explicitly or implicitly preempt this section;
section may thus be used by laborers' trust fund to collect delinquent trust
fund contributions.  81 H. 487, 918 P.2d 1143.



 



Price.



  "For the price agreed upon", see 10 H. 151,
154-155.  The amount for which the property may be charged with a lien in favor
of a subcontractor or materialman is not limited to the amount payable by the
owner to the contractor.  10 H. 151, 153-154; 14 H. 448, 452, 453.



  Where lien applicant contended that the value of the work
exceeded the contract price, there was no merit in applicant's complaint that
the court cut short applicant's presentation of evidence on the amount expended
in doing the work.  2 H. App. 90, 626 P.2d 204.



 



Remedy.



  Materialman may rely upon lien given by law as well as upon
the personal liability of the subcontractor and in absence of any showing to
the contrary it is presumed that he intended to avail himself of both remedies
so far as necessary.  14 H. 448.



 



Surety.



  Relieved by voluntary payments by owner, when.  32 H. 913.