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How can we protect ourselves from a subcontractor of a subcontractor?

South CarolinaLien PriorityRecovery OptionsRight to Lien

We are a subcontractor, that hired a subcontractor to work on three different projects. We found out after the fact that the Sub had contracted the work to another party, who then hired the end worker. We have paid 90% of our contract to our sub, but now after the work has been completed, we found out that the end worker was not paid a penny. Now that worker can not reach anyone other than us, and is now threatening to lien the project. We have fulfilled our obligation to our subcontractor (before he disappeared), but the worker is now shaking us down with threats of liens. We don't want to let a lien happen which would hurt our reputation with our customers. 1. What can we do to track down the subcontractor that we paid, and make him pay the worker that he hired? 2. We still owe our sub roughly 10%, but we obviously don't want to pay it to him until we have confirmation that he's paid his worker. If we pay that 10% directly to the worker, what can we do to guarantee that he doesn't lien the store to get the remaining balance of what he's owed?

1 reply

Jan 2, 2020
First, it's worth noting that a sub-subcontractor or even third-tier subcontractor may be limited in their right to lien if the project's GC filed a Notice of Project Commencement. If the Notice of Project Commencement was filed, then both parties would need to preserve their right to lien with a Notice of Furnishing - otherwise, they'd be very limited in what amounts they could lien. Of course, that still doesn't solve the issue of someone going unpaid for their work.

Tracking down a subcontractor who's gone MIA

As for tracking down a subcontractor - there are a few different ways I can think of for going about that. For one, if you have their business name and if their business is registered with the state, you could probably search for their business with the South Carolina Secretary of State. There should be a business address and an address for their registered agent there. Further, if they're licensed, the South Carolina Contractor's Board License Search should be helpful. What's more, performing a simple online search to see if there's an address in Google, Facebook, Angie's List, the Better Business Bureau, etc. could be a good starting point. Alternatively, you might be able to track down and reach out to individual employees, laborers, or others at their subcontractor's company. Or, if you've got banking information of the company or information of any business associated with the subcontractor, reaching out to them for info could be fruitful.

Making direct payments to your subcontractor's sub

Some states specifically allow one party to directly pay another party despite there being no direct, contractual relationship between the two. Unfortunately, I'm not aware of whether South Carolina has such a law on the books - but the state's lien statute and prompt payment statute doesn't appear to comment on that particular situation. Still - deducting payment from a subcontractor to directly pay debts they owe to their sub-subcontractor might not be that risky. After all, if that sub-sub is owed more than what's paid to them, then it should be a relatively moot point. But, it would probably be wise to put the terms of such a payment to writing. And, of course, it'd certainly be safer to proceed by simply forcing a subcontractor to pay their own debts, if possible - and threatening legal claims could help to do the trick. In terms of avoiding a lien claim from a subcontractor's sub - it might be hard to prohibit them from filing a lien claim for amounts they're owed but unpaid. If they receive partial payment, then they wouldn't be entitled to file a lien for the amounts they've actually been paid. And, requesting a partial lien waiver for amounts paid might help to hedge some of the risk of making a partial payment. Further, it may also be possible to negotiate a payment to the unpaid party in exchange for a final lien payment. For more on the use of lien waivers: The Ultimate Guide to Lien Waivers in Construction (Meaning & Examples).
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