1-We got the contract June 3 and started right away 2-Piping was changed, so we did a change order and it was approved June 9th 3-Did another change order due to another trade hitting our pipe approved July 2nd 4-On August 14th they changed it to us having to get every billing form notarized and we had to go back to June billing and get that notarized and we did all 5-Had corrections even though we passed inspection and fixed everything they wanted in 2 days 6-On October 5th they made payment, but only for 50% completion and we have billed 70% and they did not pay any of the change orders 7- Emailed them on November 1st disputing the payment 8- Confirmed with the project super via email that we were 70% complete and he confirmed 9- Still no word from them. Question... Can I file a lien for what is owed to me at this point? The 70% minus the payment they have made to me?
Technically you should be complete with your scope of work before recording a lien. Under California Civil Code Section 8412:
“A direct contractor may not enforce a lien unless the
contractor records a claim of lien after the contractor completes the direct
contract, and before the earlier of the following times:
(a) Ninety days after completion of the work of
improvement. (b) Sixty days after the owner records a notice
of completion or cessation.”
Yuu said: "Question... Can I file a lien for what is owed to me at this point? " The answer is the same, that is, after you complete your work you record your lien.
You may record a lien at this point if your direct contract permits you to suspend work due to nonpayment or if you are a subcontractor. But you may only do so if you will not perform any further work until the lien claim is resolved. This is because performing further work after the lien in recorded would invalidate the lien.
It is also worth noting that even if you are permitted to suspend work to record a lien based on this payment dispute, it is risky to do so. This is because, if you are wrong about the percentage completion you may be held liable to delay or other costs caused by your suspension of work. Generally, the most prudent thing to do would be to complete the project and reserve all rights with respect the payment dispute and your right to assert prompt payment penalties for failure to make timely payment. At the end of the job you will, under most circumstances, be in a better position to advance these disputes as there will be less downside exposure if you are wrong or cannot prove that you are right.
If you require legal assistance email me at ryan@huntortmann.com to schedule a free telephone consultation.