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Can a lien be filed against retainage amount only?

All statutes for filing a mechanic's lien seem to be related to the last day that materials were delivered. It says there are no specified deadlines or policies on making a claim to recover retainage, so what does that mean with how we should proceed to collect an outstanding retainage debt?

1 reply

Dec 13, 2019

In Tennessee, the date by which a mechanics lien must be filed is dependent on the role of the lien claimant, whether the project was residential, and whether or not a Notice of Completion was recorded and served. The deadlines for a mechanics lien are as follows:

GENERAL CONTRACTOR

Residential (Notice of Completion Recorded and Served): Lien and response to Notice of Completion required within 10 days of date on which Notice of Completion filed. Residential (Notice of Completion NOT simultaneously recorded and served): Lien and response (if applicable) required within 90 days of actual completion of project. Commercial (Notice of Completion Recorded and Served): Lien and response to Notice of Completion required within 30 days of date on which Notice of Completion filed. Commercial (Notice of Completion NOT simultaneously recorded and served): Lien and response (if applicable) required within 90 days of actual completion of project. Note, however, that a GC is not technically required to file a lien affidavit, and may just proceed with a lawsuit to enforce. However, reliance on the lawsuit alone without filing a lien may result in lien rights being cut-off by a third party.

SUBCONTRACTOR

Residential: No mechanics liens allowed. Commercial (Notice of Completion Recorded and Served): Lien and response to Notice of Completion required within 30 days of date on which Notice of Completion filed. Commercial (Notice of Completion NOT simultaneously recorded and served): Lien and response (if applicable) required within 90 days of actual completion of project. This can put a claimant in a tricky spot with respect to making a claim on retainage. In Tennessee, retainage must be released to a direct contractor within 90 days of the project completion, and to subcontractors within 10 days of the direct contractor's receipt of retain age from the owner. Accordingly, the deadline for filing a lien can pass prior to the retainage even becoming due. A party can either file a lien to protect the amount due prior to the date on which it may be technically due, or rely on procedures other than a mechanics lien to recover retained amounts. A lawsuit can be filed to recover retainage that is being held too long.

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