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How can I receive final payment on a project of I didn't file a Notice of Furnishings?

My company installed Hardi Board Siding on a commercial project. The final payment for my services is 55 days over due. We were unaware of a Notice of Furnishings as we have only dealt with residential projects before and have never had a problem with payment. What are my options at this point? Thank you!!

1 reply

Apr 6, 2018

First, it's worth determining whether a Notice of Furnishing was required - in Michigan, only those parties who do not contract directly with an owner or a lessee must provide a Notice of Furnishing. Further, if a Notice of Commencement was not filed on the project, the time to send a Notice of Furnishing is extended until 20 days after it's eventually recorded. Thus, if a Notice of Commencement was never recorded on the project, potentially, a claimant could send extremely late notice and still preserve lien rights. Anyway, even if a Notice of Furnishing was required earlier in the project (but has not been sent), not all hope is lost. Sending a Notice of Furnishing late - even really late - can be helpful. When a Notice of Furnishing is sent late, it preserves the right to lien for all work furnished after the notice is sent. While that may not be very helpful when work is complete, it also preserves some other lien rights - namely, the work provided prior to a given Notice of Furnishing may still be liened if the general contractor has not been paid (and that determination is made by looking to see whether a GC has provided a Sworn Statement attesting to payment or submitted lien waivers for the project). So, if the GC has not been paid (as indicated by their Sworn Statement or submitted lien waivers -or lack thereof), a claimant might still have the ability to lien. Of course, recovery via mechanics lien is not the only way to enforce payment on the debt. Sending payment demands, sending a Notice of Intent to Lien (even where lien rights might not be available), and demand letters through an attorney have all proven to be pretty effective ways to encourage an owner or GC to pay a claimant what they are due. If none of those methods are fruitful, small claims court or full blown litigation might also be options - but small claims court can be quite unpredictable, and litigation is costly and also carries plenty of risk.

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