On February 20, 2003, Dick's Sporting Goods, Inc, entered into a lease with Simon Property Group for property Simon owned at the Greenwood Park Mall. The lease was for the express purpose of Dick's demolishing an MCL Cafeteria and Service Merchandise

Question

store that were on the property and for constructing a new Dick's store. The lease was for an initial term of 20 years, with options to extend it for a total of 50 years. In order to secure the consent of Simon's mortgage lender for the lease, Simon agreed to complete construction of the new building if Dick's did not do so. The lease required Simon to pay Dick's a part of the costs associated with demolishing the MCL Cafeteria and constructing a courtyard. Otherwise, Dick's bore the cost of the construction. Simon reviewed and approved the plans for the Dick's store prior to entering into the lease, but indicated on the plans, "Landlord's review of contract documents is for design intent and criteria compliance only." The building was to be surrendered to Simon when the lease ended. Dick's retained S.C. Nestel, Inc, as general contractor for the construction project. Nestel, in turn, sub-contracted window and glass work to McAndrews. McAndrews's (R.T.B.H., Inc is the corporation with the dba of McAndrews Window & Glass) representative interacted with representatives from Nestel and Dick's during construction of the store. There is no evidence that representatives from Simon ever interacted with any representative of McAndrews during the construction. The new Dick's store was completed without Simon's intervention. However, Nestel refused to pay McAndrews for its work on the store. Nestel filed a complaint for damages against McAndrews. McAndrews, in turn, filed a counterclaim against Nestel and against Simon, alleging that there was a valid mechanic's lien on the property and that it should be foreclosed. Discuss whether the lien is valid and why or why not.

Answer 1

Like all landlord lien cases, the question is whether the landlord had agreed to the work. The fact that the lease between Simon and Dick's called for the construction of a new building does not mean that Simon actively consented to improvements provided by McAndrews. The only designated evidence in the record is that Simon had no interaction with McAndrews during the course of construction, nor for that matter is there any evidence that Simon had any significant interaction with the general contractor, Nestel. It also appears from the record that Simon's approval of the design plan for the Dick's store was largely technical and perfunctory, as evidenced by the stamp placed on the design by Simon, "Landlord's review of contract documents is for design intent and criteria compliance only." Additionally, evidence that Simon was aware of the construction of the Dick's store, and even McAndrews' involvement in it, is not enough to establish "the sort of active consent needed to maintain a mechanic's lien."