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How do you determine lien amount when there are unissued change orders / credits?

Anonymous Subcontractor

I have a project with a contracted scope and value, but that scope ended up changing. We issued quotes for credits for the work not performed, as well as pricing for extras that we did perform. No credits or change orders were ever issued by the GC, so I'm wondering if the lien should be based on the original contract value or the value after our proposed co's and credits? Thanks

1 reply

Matt Viator

Construction Lawyer

Levelset Admin at Levelset

| 1,003 reviews

Jan 22, 2020

Ultimately, mechanics lien rights will be available for authorized work that's gone unpaid. So, lien claimants are entitled to recover the amounts they're owed for work they've performed but not been paid for as long as that work was properly approved by the customer. When there's some grey area with change orders - such as changes that are verbally approved and directed, without written confirmation - that will make things less clear as to what can and cannot be included in a lien claim. Levelset discusses that issue here: Change Orders and Mechanics Lien Rights. In those cases, it is worth noting that there's a difference between honest mistakes and fraud, and that New York has an unusually high bar for proving a lien claim is exaggerated. So - as long as the work was actually performed and as long as there's a strong argument that the work is lienable, lien claimants usually don't find themselves in trouble for liening disputed amounts. One safe rule of thumb will be that lien rights won't be available for work that wasn't actually performed. So, proposed change orders and credits should typically not be included in a mechanics lien claim if they haven't actually been undertaken.

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