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L is for Lien.

Suzannah Newboult is a lawyer at Eversheds LLP. She is a specialist in resolving construction and engineering disputes, and is currently based in Doha, Qatar

Contractors, sub-contractors, suppliers and consultants cite not getting paid as one of the biggest challenges in Qatar. Effective, practical methods are proving difficult. Liens are not without their difficulties, but are another method to throw into the mix.

A lien is a priority right over property, moveable or immovable. Liens can arise where money is due from one party to another in order to satisfy or secure that debt.

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In its simplest form, it is hanging on to goods/materials/equipment which are properly in your possession but belong to someone else who owes you money.

In the construction context, this becomes more difficult when those goods or materials are delivered and incorporated into a building or structure. At this stage the lien is exercised as a priority right or an attachment, broadly similar to a mortgage.

A supplier has a lien or priority right over the materials supplied for as long as they maintain their intrinsic nature. Again, in the construction context, once incorporated into a building or structure, they are likely to be inseparable, no longer of the same intrinsic nature.

A further problem arises if the goods or materials are sold on and the purchasing party knows nothing of the debt owed to the supplier - in these circumstances, the lien may be lost.

There is a risk that the goods or materials may be subject to other priority rights. Judicial costs, costs of sale, costs of preserving or storing the materials and wages to workers all take precedence over the supplier's right to recover its debt.

Qatari law makes specific provision to cover the fees of contractors and designers whose work is in immovable property. i.e. the construction, rebuilding, restoring or maintaining of buildings or installations.

Such contractors and designers have a priority right over the building or installation to the extent of the value in the building or installation arising from the work of the contractor or designer.

These priority rights must be registered as a charge over the property. They will rank behind other prior registered charges save where these were in existence before the works carried out by the contractor or designer added value to the property.

Registered charges, while securing a debt, may do little to assist in the short term as the contractor or designer, the lien holder, may not be able to force the sale of the property to recover its money.

Some contractors are deprived of the opportunity to secure payment by way of lien or priority right by being obliged to provide waivers or releases. A release indicates completion and payment, or that a claim has been satisfied. Releases may be required as a precondition to payment or to the issue of a taking over or initial acceptance certificate.

A waiver is typically obtained before commencement of the works, and may be drafted into the terms of the contract itself.

A waiver relinquishes any existing or future right to a lien/priority right. It is sensible for the construction client to protect itself by requiring that a contractor provide waivers or releases from its subcontractors.

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Publication:Construction Week
Geographic Code:7QATA
Date:Feb 6, 2013
Words:559
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