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Home>Levelset Community>Legal Help>Can subcontractor place lien on public project (Hazel Green, WI) where no bond is present and no prelim notice sent?

Can subcontractor place lien on public project (Hazel Green, WI) where no bond is present and no prelim notice sent?

WisconsinMechanics LienNotice of Intent to LienPreliminary Notice

I am a small roofing & waterproofing subcontractor. A MN based contractor hired my company for services on a public project (rest stop owned by WISDOT). The state did not require a bond on this job. The contractor had failed to meet manufacturer warranty requirements and we are the company who handles warranty issues for MN and surrounding states. The inspector marked the defects that needed to be fixed to spec before the warranty could be issued, but did not supply how many (each/lf/sf). We sent an estimate to give pricing for each type of service. It stated that this was not a complete estimate and the final bill would reflect that. The owner was onsite and was aware of the scope of the project. They didn't pay the bill upon completion as required. It took 3 months to get the check and it was only for the amount of the estimate. We have never had non-payment from a client and didn't realize that we had POSSIBLY missed deadlines for the preliminary notice. I did send the intent to lien notice as required. When I read up on liens in WI I was under the impression that in this instance I wasn't required to file the preliminary notice. The notice of intent was sent within the required time frame and I have 10 days to file/send the actual Lien. However, I have also been warned that if I file the lien without having met all the requirements then I open myself up to litigation which I do not want to do. I need to be sure I can file this lien or what recourse is available to me if that is not possible.

4 replies

Mar 11, 2020

Mechanics liens on public projects

First and foremost, mechanics liens are not available to be filed on public property. That's the blanket rule. Which is why payment bonds are typically required. However, if bonds aren't required on the project, recovering unpaid funds can be a little tricky.

Wisconsin liens on funds

One solution to this, under Wisconsin law, is what's known as a lien on funds found in Wis. Stat. §779.15. This allows subs or suppliers with a direct contract with the prime owner to place a lien on any remaining funds yet to be paid to the prime contractor. If the prime contractor has been paid in full, then a lien on funds would be useless. There are no preliminary notice requirements to invoke this right, but timing your claim is key. As stated above, this will only be effective against any remaining contract funds that have yet to be paid to the prime contractor. A lien on funds should be sent by registered or certified mail to both the prime contractor and the contracting public entity. There are no specific requirements for the claim itself, but it should include the claimant's information, the amount claimed, the project location, the hiring party's information, and the last date of furnishing labor or materials to the project.

Other alternatives for recovery

If however, there are no remaining project funds, then there are other avenues to take to get paid; such as collections agencies, or a lawsuit against the prime contractor for breach of contract or unjust enrichment. For more on that see: Can't File a Lien? Here Are Some Other Recovery Options
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Mar 11, 2020
Just to be clear, we did not have a direct contract with the prime owner. We only had a contract with the prime contractor. Does this mean that Wis. Stat. §779.15 would not apply?
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Mar 11, 2020
If I filed a Lien on Funds anyway would that open me up to litigation or just be ignored if it does not apply?
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Mar 11, 2020
I apologize for the typo, "with a direct contract with the prime contractor." Subcontractors and suppliers who contract with the prime/GC will have the ability to claim a lien on the funds in Wisconsin.
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