We are a material supplier who ordered material for our customer (the subcontractor) per the customers instructions. The material was special order and was about 75% complete when the customer cancelled it. The manufacturer of the special order material is now charging a restocking fee to us. Our customer is refusing to pay it. Are we able to lien the project for this fee? There is no money due for physical material.

Answered 2 weeks ago

543 Answered Questions

Nate Budde

Chief Legal Officer Levelset

In Nevada, the amounts that can be properly included in a lien claim are specifically set forth by statute § 108.222(1)(a) and (b), which states that the lien is for the contract price (if there was a contract) or the fair market value of the work (including overhead and profit) if there was no contract specifying a specific price.

The Nevada mechanics lien statute uses the specific wording of labor or materials "furnished or to be furnished" [emphasis added] a number of times. Accordingly, it appears that the properly lineable amount may includes materials contracted for but not (yet?) provided. This would mean that materials to be provided pursuant to contract, but not incorporated into the work of improvement, may qualify for mechanics lien protection. Note, however, that an administrative re-stocking fee is not likely properly included in the lien claim.

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