We filed a pre lien and in the fine print of our contract it says the subcontractor must keep the project free of liens. We have not been paid on the job and the GC said we are in breech of contract for placing the prelien
Oct 16, 2018
That's a good question. First, it's worth noting that the Oklahoma mechanics lien statute does not explicitly address lien waivers given prior to work performed. So, unlike a number of states, lien waivers exchanged prior to work performed are not explicitly disallowed. However, as a general rule, courts typically disfavor the waiving of lien rights prior to the performance of work - especially when not granted for consideration. Thus, in most states, in order for a "no lien" clause to be effective, it must be clear and unequivocal. Hiding such a clause in fine print and using broad language would likely not be considered "clear and unequivocal". However, at the same time, it's hard to predict how a court would view the issue, and attempting to predict how a court may turn is typically not a good idea. Of course - that all relates to whether a lien itself is prohibited. If a contract merely prohibits lien claims and not any other sort of notice, it would be hard to see how sending preliminary notice would be in breach of a provision limiting the ability to simply file a lien. Sure, preliminary notice might be a prerequisite to filing an Oklahoma lien (depending on the project and role of the claimant), but a notice is just that - a notice. Preliminary notice is sent for all sorts of reasons - to improve payment chain visibility, to establish relationships and good communication, and, of course, to preserve the right to lien. But a notice, in and of itself, does not encumber the property like a lien. Rather, it's more like a letter that exchanges information while also attempting to preserve the eventual right to lien.
Post a question in our community to get free advice from Construction Attorneys in your state, typically within a week. Questions are public, so do not share personal information. For extra privacy, select the anonymous option.