We are the general contractor for this job. The Notice was not sent per the information Leveleset currently shows. Does that mean we can not file the lien if needed?
1 reply
Jun 2, 2021
Wisconsin Lien law, particularly Wis. Stat. 779.02, provides for notice requirements for lien claimants, including general contractors (prime contractors). GCs typically subcontract a portion of the work. Please let me know if you did 100% of the work, as the analysis might be a little different.
779.02(2)(a) requires every prime who subcontracts any portion of its work to provide notice to an owner. This did not happen for you, so you are inquiring about exceptions. There is an exception where a prime can revive its lien rights. 779.02(2)(c) provides that any prime that fails to give notice required under (2)(a) may recover lien rights if it "pays all of the prime contractor's obligations to its subcontractors, suppliers, and service providers in respect to the work of improvement within the time periods under 779.06 and until the time for notice under par. (b) (60 days from finishing the work) has elapsed and either none of its subcontractors, suppliers, or service providers gives notice as a lien claimant under par. (b) or all of its subcontractors, suppliers, and service providers have waived all lien rights in full under s. 779.05."
The exception rule is a convoluted mouthful. The legislature did not make that law easy for us to read. But to summarize with broad strokes, a GC that gets all of its subs paid and resolved quickly may have a right to a lien.
Although lien rights are a valuable leverage point in getting paid, all is not lost without it. You still likely have breach of contract claims you can bring against the owner, and they may not have procedural barriers to enforcement (like lien claims). If you file a lawsuit for breach of contract, you will likely get to the merits of your case quickly - i.e. whether you are owed for work performed - and may get to a judgment quickly. A judgment is a strong legal right and can often get you paid. Depending on the type of owner and size of claim, lack of a lien right may not be a meaningful barrier to getting paid.
Feel free to contact me to discuss. I often represent small businesses, particularly small contractors, in general counsel and litigation. michaeljohnsonlegal.com