We answer hundreds of questions (and probably more than that!) about payments from folks in the construction industry each and every week. And this really isn’t surprising, because construction payment is complicated and confusing. There are certain forms and documents that must be used, all kinds of deadlines that must be met, and the requirements often change from project to project depending on many different factors.
The questions we get cover a wide range of topics, but a common theme for many is around timing. Specifically, people are often confused about deadlines that specify when notices must be sent, when certain documents must be filed, and when those documents expire. One timing question we get again and again from contractors and others is: “How long do I have to wait before I can place a mechanics lien on a project?”
Please read on for the answer and a brief discussion.
Is There A Required Waiting Period Before Filing A Mechanics Lien?
Short answer: No.
We’ve addressed this question before in a previous article, “Can I File A Mechanics Lien Too Early?” A quote from that article sums it up:
“If you have done the work and remain unpaid, you have the right to file a mechanics lien as long as you have met any applicable preliminary notice and notice of intent to lien requirements.”
So, before you file a mechanics lien, please make sure that you completed all of the required work to the letter of your contract. It makes no sense to fight for a payment you haven’t earned. It’s not right either.
Depending on the state your project is located in, there may be preliminary notice and notice of intent to lien requirements (along with several other potential factors) that must be met in order to file a lien. It’s probably not a good idea to file a lien if you know you’ve missed one of these requirements along the way. A missed requirement could invalidate your lien claim, and your efforts might be for naught.
The Goal Is to Get Paid
Mechanics lien claims are undoubtedly a very powerful tool to help construction companies get paid the money they’ve earned. There’s no question that liens work, period. But Levelset’s goal for our customers is not to file liens — our goal is to help our customers get paid.
If we can help someone get paid the money they’ve earned without having to file a mechanics lien, that is an ideal outcome. Because let’s face it: at the end of the day, filing a lien is kind of a big deal. No one looks forward to a mechanics lien on a project, and if the underlying payment dispute can be resolved without having to file a lien, then everyone is better for it.
Think of Notices Not as Requirements, But as Tools
We make a big deal about all of the requirements around managing lien rights, and with good reason too. That’s because one single mistake can kill a company’s lien rights on a project, negating any leverage they had to guarantee they would receive the money they earned.
But instead of thinking of a notice as a requirement that must be met — a box to be checked off or just another task that has to get done — we suggest that you think of each of these documents as another tool that can help you get paid.
Here are a couple of facts about notices that you may not have already known:
Did you know that companies that send preliminary notices on their projects typically get paid faster than the companies that don’t?
Did you know that sending a notice a notice of intent to lien is often enough to prompt payment by itself, without having to resort to filing a mechanics lien?
Both of these notices are really forms of proactive communication that are meant to prevent a payment problem from escalating into a full-blown crisis. Both of these notices are really for the benefit of the recipients, since both are intended to give the paying parties the awareness and ability to manage the payments on a project in a timely manner, long before a true payment issue develops. And both of these notices have been proven to help people just like you get paid the money they’ve earned, without even getting close to filing a lien.
Don’t Be Afraid to Leverage Your Lien Rights
Nevertheless, when push comes to shove, if you’re still unpaid on a project even after sending notices and making every effort to manage the payment issue, then you should absolutely take advantage of your mechanic’s lien rights. And you should do so as soon as practical because your mechanics lien deadline will draw closer to expiration every single day, and lien deadlines are strictly enforced.