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Can Change order items be included in the lien?

Anonymous General Contractor

If there are change orders approved verbally by homeowner, can those be included in the lien? Our homeowner verbally approved change orders and repeatedly said she would pay them at the conclusion of the project, but is now refusing to pay the remainder of the original contract amount or the change orders. She signed the original contract, but we have no signatures for th echange orders- just witnesses to her saying she would pay.

1 reply

Matt Viator

Construction Lawyer

Levelset Admin at Levelset

| 1,000 reviews

Nov 13, 2019

Certainly, it's best practices to get change orders in writing. And, when change orders are not in writing, there's a fair chance that including change orders in a mechanics lien might not be proper. If the lien claimant can somehow prove that the changes were agreed to by the owner, conceivably, those changes might be lienable - whether that be through text messages, emails, invoices, purchase orders, etc. But, when there's a written contract and alterations are allegedly made to that contract verbally, a claimant may face an uphill battle in showing that the changes are owed and thus lienable. To be sure, § 34-35-095(a) of the Alaska mechanics lien statute, an lien claimant is only entitled to file a mechanics lien for the amount due according to the contract. And, alterations to written contracts must generally be in writing.

Actually filing a mechanics lien might not always be necessary to recover payment

It's worth noting that many would-be lien claimants can obtain payment by merely warning or threatening action can be enough to secure payment.

Demand letters

For one, sending a payment demand letter may be effective to push for payment. A demand letter that threatens specific legal action is often enough to convince a customer to do the right thing and pay what's owed. More on that here: Demand Letters for Contractors – How To Write One That Gets You Paid

Notice of Intent to Lien

By sending a document like a Notice of Intent to Lien, a claimant can show that they're serious about getting paid and that they're unafraid to take whatever steps are necessary to ensure that payment is made. And, if a Notice of Intent isn't successful, a claimant is still able to pursue with their claim, at least to the extent one is allowed. More on that here: What Is a Notice of Intent to Lien and Should You Send One?

Amounts owed as undocumented change orders could be recoverable under unjust enrichment

Note that just because undocumented change orders may not be lienable doesn't necessarily mean those amounts aren't recoverable. Potentially, a lien claimant may be entitled to pursue recovery under a theory like unjust enrichment even where there's no official contract or agreement for the work. Ultimately, though, to best assess what recovery options may be available or the most successful, it'd be helpful to reach out to a local Alaska construction attorney. They'll be able to more thoroughly review the documentation and other information you have and advise on how best to move forward under your specific circumstances.

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