5078

VETOES

general contractors, except that they need
not even provide notice of intent to claim a
lien. In short, the Maryland mechanic's lien
law permits an owner to be deprived of a
significant property interest without notice
or a prior hearing, and thus is
unconstitutional unless it provides
protections such as those discussed in
Mitchell [v. W. T. Grant, 416 U.S. 600
(1974)] and North Georgia Finishing [Inc. v.
Di-Chem, Inc., 419 U.S. 601 (1975)] ..." Id.

The safeguards demanded by Mitchell and North Georgia
included the provision of a sworn affidavit setting forth
the basis for the lien, the filing of a bond by the
lienholder to protect the debtor, preliminary scrutiny of
the affidavit by a judicial officer, and the opportunity for
a prompt postseizure hearing. As the Court pointed out in
Barry, although the property owner might seek a declaratory
judgment to invalidate the mechanic's lien, according to
statute he was not entitled to an immediate hearing as
contemplated by the Supreme Court, but only to a "hearing in
the ordinary course of administering the court's trial
assignment calendar." Barry Properties, supra, at 31-32.

Senate Bill 473 contains none of the safeguards which
would overcome the absence of notice or a prior hearing.
Moreover, Senate Bill 473 would not satisfy the procedures
contained in the Arizona mechanic's lien law upheld in
Spielman-Ford, Inc. v. Hanson's, Inc., 379 F. Supp. 997 (D.
Ariz. 1973) (per curiam), aff'd, 417 U.S. 901 (1974) and
discussed in Barry Properties, supra, at 33-34.

In summary, under Senate Bill 473 there is a lien which
arises immediately upon the filing of a "statement of
homeowner's association lien" in the land records and in a
nonjudicially determined amount, thereby leaving the
property owner wholly unable to dispose of his property
pending the ultimate determination of the amount of the lien
in a foreclosure proceeding. If state action existed,
clearly, such a scheme would constitute a taking of property
without due process of law under the teaching of Barry
Properties. See also Residential Industrial Loan Co. v.
Weinberg, supra. However, because there is considerable
doubt as to whether the remedy of Senate Bill 473 involves
State action, we cannot conclude that the bill is
unconstitutional.

Secondly, the title of Senate Bill 473 provides that
certain assessments by homeowners' associations are liens on
the homes of their members. The body of the bill, however,
provides that the lien attaches to not only the "house," but
also to the "land under the house" and "any and all rights
or property to which the member may be entitled by virtue