I didn’t file a notice and I’m ondering if there would be a statute of limitations barring me from pursuing lien

2 weeks ago

I did three days of work as a subcontractor for a company out of Virginia, it is known for not paying contractors, I recently found out Marathon Resource Management group has dozens if not hundreds of contractors in the same situation as me. I worked 3 days for them as a subcontractor painting a student housing complex in Oshkosh Wisconsin on August 23rd through August 25th 2019 they said I can expect to be paid within 45 days from completion of project and has now been delinquent for more than 2 months. I have not pursued this through lean, up until this point and so I have not filed or submitted/served any notices. I’m I still able to pursue this or did I miss my opportunity because I didn’t file the first notice? Not sure if I’m understanding it correctly but I think I read that it needed to be done within 60 days of my last day of work? I have not signed any waivers.

Senior Legal Associate Levelset

Mechanics liens are often the most powerful tool on the table for recovering construction payments. But, as you allude to above, liens have strict notice and deadline requirements. Let’s take a look at each, then look to some other recovery options that may be available.

Wisconsin’s preliminary notice requirements and exceptions

Most parties on Wisconsin construction projects must send preliminary notice in order to preserve their right to file a mechanics lien. However, there are some exceptions.

Under § 779.02(1)(c) of Wisconsin’s mechanics lien statute, it seems that preliminary notices won’t be required for projects

(1) where more than 4 family living units are to be provided or added by such work of improvement, (2) if the improvement is wholly residential in character, or
(3) in any case where the improvement is partly or wholly nonresidential in character.” 

Because of the large number of units included with a student housing project, and because such projects are often considered commercial rather than residential projects (due to the commercial nature of the enterprise), there’s a chance no notice is required at all. Plus even if the project is considered residential, if there’s any commercial aspect to the project, that might also be enough to cancel notice requirements. What’s more, also note that § 779.02(1)(d) relieves notice requirements for those who work on projects where the prime contractor who’s actually an owner of the improvement.

Deadline to file a Wisconsin mechanics lien

With all of the above being said, Wisconsin does have a strict mechanics lien deadline. In Wisconsin, lien claimants must file their lien claim within 6 months from the claimant’s last furnishing date. Of course, there’s an additional deadline to keep in mind here. Wisconsin mechanics lien claimants must also send a Notice of Intent to Lien at least 30 days before a mechanics lien is filed – so, really, a claimant will need to initiate the lien process before the 6 month deadline.

It’s worth noting, though, that sending a Notice of Intent to Lien can be effective to recover payment all on it’s own. The document is a warning shot – it lets recipients know that if payment isn’t made and made soon, then a lien claim will be filed. Considering the drastic effect lien claims can have on property owners and contractors alike, sending a copy of this notice to both the owner and the contractor can lead to payment. More on that here: What Is a Notice of Intent to Lien and Should You Send One?

For more talk on Wisconsin liens and notices:

– Wisconsin Mechanics Lien Guide and FAQs
– Wisconsin Preliminary Notice Guide and FAQs

Other recovery options outside of the mechanics lien process

Of course mechanics lien claims, and threats of filing them, don’t constitute the only recovery tools available. Something as simple as an invoice reminder can be effective to compel payment – sometimes, all it takes is a nudge in the right direction. Further, escalating things with a demand letter can work to compel payment through legal threats, too.

While legal recovery tools won’t always be the first choice, there are likely causes of action available if unpaid for your work, as well. For example, payment is a key term to any contract – so, failure to make payment may well give rise to a breach of contract action. So, if necessary, seeking out a Wisconsin construction attorney could help to clarify what actions may be available and best suited for recovery. Plus, for claims $10,000 or less, Wisconsin small claims court could help to streamline a claim.

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