I was holding retention from a sub until he would fix a construction defect. He never came out and the project was completed in August. Now he is threatening to file a lien. Can he?
3 replies
Apr 1, 2020
If the project was completed in August 2019, the subcontractor has likely waited too long to file a mechanics' lien. Subcontractors have 90 days to file a mechanics' lien provided that the owner did not file a notice of completion. If the owner filed a notice of completion, then the subcontractor has only 30 days to file a mechanics' lien. Either way, it sounds like the time frame for filing a mechanics' lien has passed.
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Apr 1, 2020
If the sub failed to record a lien within 90 days of the project's completion, or within 30 days of redecoration of Notice of Completion, the sub's lien rights have expired. Here, with the job completed in August, the sub's lien rights have long since expired. If the sub does file a lien anyway, you can petition the court to have the lien expunged, and recover your attorneys' fees for having to do so.
Andrew
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Apr 1, 2020
I agree with counsel about the time limits for recording a lien. My clients sometimes have me write a letter to the sub advising him that his lien rights have expired and advising the sub of the legal consequences if he does file an invalid lien. The sub could still sue you for breach of contract even without the lien. The statute of limitations for breach of contract is 2 years for an oral contract and 4 years for a written contract, but you have the backcharge as a defense.