Good Afternoon, I have a project that was started in 01/2020 of which the city of Vallejo, (California) was funding for the owner. I had a signed contract with the owner, of which had an agreed payment schedule. We had forward two course of construction invoices of which neither had been paid. Upon investigating, it was discovered the owner had defaulted on a mortgage payment, thus the city would not forward funds until this matter was taken care of. We have now discovered the city diverted the funding for this project to another and wants to put this project out to bid again. It has been a year and a half since work has been done on the project. I understand my lien rights have expired. But in talking with the owner, I am being allowed to go back to the project to do some modifications prior to the bidding process. My question is; Since I am returning to complete some work at the project, can I now file a lien for the previous work that remains unpaid? Or will it be for work that we will be performing in the present. Respectfully, Cal
The deadline to record a lien runs 90 days from actual completion of the entire project by all trades or 30 days (subs) to 60 days (Direct contractor) from the recording of a notice of completion or notice of cessation. But a continuous cessation of labor for 60 days also constitutes a completion triggering the 90 days period. Based on your description above, it sounds like then total project has not been completed but that there may have been a continuous cessation of labor for 60 days which would be considered a completion for lien purposes. If this has occurred, you would have 150 days from the beginning of the continuous cessation of labor to record your lien.
Due to the ambiguity and the fact that the project is ongoing, it may make sense to both record a lien and serve a stop payment notice on the city. You can simply take the position that the project is ongoing and thus that you still have lien rights. Leave it up to them to do the analysis and prove that you don’t if that is the case. One other thing to consider if you do go back, do not record your lien until you will perform no further work. As performing further work will invalidate your lien. Finally, it is possible that a payment bond may be in place for the project. Try to determine this and make a claim on the bond if possible. The City should provide you a copy of the bond if there is one.
If you have further questions email me at ryan@floresryan.com.