Lien Deadline

Deadlines are omnipresent when it comes to mechanics lien law. There are deadlines by which notices of commencement must be posted, deadlines by which preliminary notices must be sent or filed, and deadlines by which liens must be recorded. Keeping track of these deadlines can be tricky, but abiding by them, even when they are known, can be even more difficult. In a case that lends credence to the axiom “a little knowledge is a dangerous thing”, a contractor in Missouri ended up attempting to be a little too clever – and wiped out his $195,000 lien.

Missouri Lien Deadline

A mechanics lien must be filed within 6 months “after the indebtedness shall have accrued.” In Missouri, according to RSMo § 429.080, a mechanics lien must be filed within 6 months “after the indebtedness shall have accrued”. Missouri courts have interpreted the time the indebtedness accrued to be the date of the claimant’s last furnishing labor and/or material to the project. In situations where the work was spread out over a long period of time, or there were multiple change orders, the court makes a factual determination whether the work was performed pursuant to one contract, or under separate contracts, for the determination of the deadline date. That is, that work performed under separate contracts does not extend the deadline by which a lien must be filed, even if the work is performed on the same property, and even, potentially, for the same general project.

Even if there is no separate contract, a lien claimant cannot perform additional subsequent work “merely to extend or revive” the time in which a mechanics lien may be filed. While it makes sense that a lien claimant would not be able to perform subsequent work unilaterally to extend a lien filing deadline, the same holds true for work performed that is not unilateral. Since a mechanics lien is a creature of statute, not contract, an agreement between parties has no effect on the deadline by which a lien may be filed.

This is not to say that a lien filing deadline may never be extended by the performance of subsequent work or later delivery of materials, however. Work performed, or material supplied, that is necessary or essential to the completion of the project, and not merely intended as a vehicle by which the deadline requirements of Missouri law may be circumvented will extend the lien filing deadline.

Recent Case And How Not To Extend A Missouri Lien Deadline

An interesting tidbit in the brief discussion of the extension of lien deadlines, above, is that the parties may not agree to extend the lien filing deadline. This is true whether the parties attempt to do so by specific contract, or attempt to do so by agreeing to more work on the project for the sole purpose of extending the deadline.

In the recent case, Watkins & Co. (“Watkins”), a developer on a condominium project, contracted with Manning Construction Co. for the construction of several buildings. Manning constructed one building before the project stopped due to a lack of additional financing. After a period of time, Manning, noting that the time in which they would be able to file a valid mechanics lien to protect their interests was running short, called a meeting with Tim Ealey, a representative of Watkins, and explained the same. Ealey requested that Manning not file a mechanics lien because a filed lien would detrimentally effect the ability to sell condominium units in the project, and the ability to secure additional financing.

work performed merely for the purpose of extending the deadline by which a mechanics lien must be filed will not serve that purpose
Instead of filing the mechanics lien, Manning and Ealey agreed that Watkins would hire Manning to do some additional trivial work at the property for the purposes of extending the time in which Manning’s mechanics lien was required to be filed. Approximately 6 months later, the two had a similar conversation that resulted in some additional subsequent work, for the same purpose. When Manning later filed a mechanics lien and attempted to foreclose, his mechanics lien was struck down by the trial court as untimely. The appeals court affirmed that decision.

As noted above, work performed merely for the purpose of extending the deadline by which a mechanics lien must be filed will not serve that purpose. While the reasons for this rule are clear, the outcome can be a harsh wake-up call. In this case, Manning presumably knew the deadline to file, and intentionally let that lien deadline pass because he thought that his subsequent work would extend it. He even had the developer agree to give him the subsequent work specifically for the purpose of extending the lien deadline, and held off on filing a lien so as not to interfere with the sale of property units or additional financing. That good deed left Manning out in the cold, however.

The clear and very important take-away is this. Missouri lien deadlines may not be extended by work performed purely for that supposed benefit, even if agreed to by the parties to the contract.