Missed That Lien Deadline – What Are Your Options?
By Alex Barthet
You believe you’ve missed a lien deadline, and as a result might have missed your chance to get paid. Don’t give up! There are still options to exhaust.
You may think you know the basic notice and lien rules, but do you also know there are exceptions:
- You must send any notice to owner within 45 days of your first work or delivery of materials to the site. Exception: If you have a direct contract with a bonded contractor, you don’t need to send a notice to owner/contractor to maintain your rights. (That said, it’s a sound practice to always send a notice to owner, regardless of what’s required.)
- Another exception: On a bonded project, the 45-day notice to owner requirement doesn’t start until you have actual or constructive knowledge of the bond. If a contractor doesn’t file/record the bond properly, you can’t know there is one. Keep digging and you might breathe new life into your claim.
- You must file any claim of lien or notice of nonpayment on a job within 90 days of your last work or delivery of materials to the site. Exception: If the job is public, you don’t have to send a notice of nonpayment to still have rights. (Again, it’s sound practice to always send timely notices, regardless of requirements.)
- You must file any suit to enforce the lien within one year of lien recording, or, for a bonded job, one year from last work on bond claims. Note the lien gives you a little more time.
Calculating dates correctly can be less of a burden with the Calc-U-Lien. Downloadable on IOS or Android devices, this app does the counting and remembering for you.
Once you confirm whether deadlines and exceptions apply to you, also make sure there isn’t another bond you could pursue. If you are a sub-subcontractor or a material supplier to a sub or sub-sub, you may have rights against the subcontractor’s bond. The catch is the bond doesn’t exist in the public record. Since you can’t do a search for this bond, you’ll have to ask the contractor for a copy. Often the contractor is happy to oblige and hopes this will keep you from filing against him. The subcontractor might not be as forthcoming, but you can ask. You can even send a written demand.
On occasion, a subcontractor will lie and say he doesn’t have a bond. We were involved in such a