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Our contractor has been Paid for services and did not pay subs. Are we responsible in the end for their payment?

North CarolinaMechanics Lien

We are mid build on a new construction. Our contractor has been paid from the bank for electricity rough in, plumbing rough in, heating and cooling rough in, all sheet rock. These subs to date have not been paid for the initial rough ins. We are looking to terminate our contract with the contractor because he is not working on our project in a timely manner. We are already ten months into the project and he has not even purchased doors or our floors along with lights, any type of facets, etc. we have been told for close to 4 months these items have been ordered and I have spoken directly with the suppliers and they in fact have NOT been ordered. When we confront our contractor he says he will “check” on the status of the doors and floors, etc. we are looking to terminate but need to know if we will be responsible for subject to a mechanics lien from the subs that have not been paid? Per a non construction attorney, since the contractor was paid for these rendered services we are not liable for the subcontractors not receiving payment and the subs only option is to sue the contractor. Please advise.

1 reply

Apr 13, 2020
Subcontractors' and suppliers' lien rights in North Carolina will be limited when their GC has been fully paid by the owner. Generally, these parties' lien rights must be subrogated through the GC if they want to file a lien. Meaning, if the GC is also unpaid, then subs and suppliers can step into the GC's shoes and file a lien claim. But, when their GC has been fully paid, then no lien rights would exist through subrogation since the GC wouldn't have any lien rights. So, I'm inclined to agree with the other attorney - if you've fully paid your GC, then their subs and suppliers shouldn't be able to file valid and enforceable North Carolina mechanics liens against the project property. With that being said, it doesn't mean the subs or suppliers won't try to file a lien anyway. So, if there's a serious fear that they'll file mechanics lien claims, it might be a good idea to send letters notifying them that the GC was paid and that lien claims won't be valid - and that they'll be contested immediately. That way, those subs and suppliers can direct their attention at more appropriate recovery methods - like claims against the GC. Finally, I think these resources might be useful to you: - How a Termination Clause Works in a Construction Contract -  Construction Contracts | A Deep Dive on Breach of Contract - I Just Received a Notice of Intent to Lien – What Should I Do Now?
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